ANGUS COUNCIL

Forfar/Carnoustie Schools Project

Phase 2 Consultancy Services - Project Development and Procurement

Financial Advisers

Tender Documents

Date of Issue: 15 August 2003

Tenderer’s Name:………......

Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

CONTENTS PAGE(S)

Part A - Instructions for Tendering A1 – A13

Part B – Conditions of Engagement B1 - B27

Part C – Appointment Brief C1 – C14

Part D - Appendices D1 – D45

ANGUS COUNCIL

Forfar/Carnoustie Schools Project

Phase 2 Consultancy Services - Project Development and Procurement

Financial Advisers

Tender Documents – Part A

Instructions for Tendering

Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

INSTRUCTIONS FOR TENDERING

(These instructions do not form part of the Contract)

1. INTRODUCTION

1.1 Angus Council wishes to procure advisory services in connection with its proposal to take forward a public private partnership for the improvement of its school estate in the Burghs of Forfar and Carnoustie. The Council has received confirmation of revenue support from the Scottish Executive. The following summarises the initial scoping and development of the project thus far.

1.2 Angus Council has an excellent track record of investment in its school estate. However, on a strategic basis, the limited funding available is insufficient to meet the needs of addressing inadequate primary school provision within a reasonable timescale. Relevant Angus Council policy supports the promotion of lifelong learning in the context of provision of Best Value services. The need for improvement of accommodation and facilities amounting to an impediment to delivery of those strategies has been identified particularly within the burghs of Forfar and Carnoustie. Considerable work has already been undertaken within the bounds of budgetary constraints. However, in the longer term, a more strategic approach is necessary to identify and address these impediments.

1.3 Angus Council has assessed the need for improvement of its schools estate on an objective basis with particular reference to its Asset Management Plan. The Asset Management Plan provides a comprehensive profile of building condition and fitness for educational purposes. This has identified that, whilst primary schools in most of the Angus burghs can be suitably improved through use of conventional funding, primary school provision in the burghs of Forfar and Carnoustie requires a more fundamental solution, the scale of which precludes these problems being addressed within a reasonable timescale utilising conventional funding methods. There are also a small number of Secondary schools within Angus in need of improvement. Carnoustie High School has a particular need. Angus Council is also committed to, wherever possible, integrating pupils with Special Educational Needs within mainstream schools and there is a need for SEN provision within Angus, ideally located in Forfar in geographical terms. The Council would also wish to build on the success of the New Community Schools initiative in Arbroath in terms of integrating community facilities with schools provision. Again, this could only be properly addressed in the context of a more strategic project.

1.4 In the light of the Council’s strategic and policy context along with the assessment of need undertaken, Angus Council has identified that any project to improve schools provision in Forfar and Carnoustie would have the following objectives, in summary:

 To provide improved schools accommodation and facilities to meet the learning and community needs of Angus and its citizens in the 21st Century.  To raise standards and provide the opportunity for integrated and coherent curriculum needs.  To contribute further towards the shared vision of Angus Council’s Education service.  To provide schools accommodation and facilities (meeting the above) which are affordable, represent Best Value for Money and free resources to invest further in teaching.  To focus on the schools provision in Forfar and Carnoustie in the light of the foregoing general objectives.  To address the extent to which specialist provision and community provision should be included in that overall school provision in Forfar and Carnoustie.

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1.5 Angus Council has conducted a thorough option appraisal of all the options which could reasonably deliver the above project objectives. Five options for Forfar and six options for Carnoustie, all in respect of primary school provision were considered against the above objectives. The improvement of Carnoustie High School was also considered along with an initial examination of the financial, technical and legal issues arising from these options.

1.6 Angus Council’s preferred option for Forfar (subject to consultation) is to provide the town with three 2-stream Primary Schools. This could be achieved by upgrading Langlands Primary School, extending Kirkriggs (2-stream) and utilising another location elsewhere in the town (to be identified). For Carnoustie, the Council’s preferred option is to build a new 2-stream Primary School at the Thomas Street site to replace Panbride and Barry Primary Schools and to construct a new single stream school at the Kinloch site (the existing school would be demolished). This proposal would ensure that schooling within Forfar and Carnoustie is improved to a consistent standard which meets the Council’s overall requirements and, at the same time, provides the quality of access to pupils in those areas. A technical appraisal of the preferred option was undertaken and concluded that any identified technical issues would not adversely affect the delivery of the project.

1.7 The estimated capital construction cost (unadjusted for risk or indexation) of the preferred option for Forfar is £14.6 million and, for Carnoustie, (including a refurbishment for Carnoustie High School) is £17.45 million. This provides a total estimated outturn unadjusted capital construction value for the project of £32.05 million. For the avoidance of any doubt, Tenderers should note that, as well as being unadjusted for risk and indexation, these values also exclude any allowance for furniture and fittings, capitalised interest and lifecycle maintenance/facilities management costs.

1.8 Although the Council concluded that full public consultation on the preferred option was not appropriate at this stage (particularly of an identified new build site for Forfar), it has developed a consultation strategy to address this issue if and when the project is taken forward.

1.9 In terms of value for money, the public sector comparator constructed suggests that the procurement of the project via a public private partnership would offer a value for money solution.

1.10 Angus Council’s preliminary work on the affordability of the project, including estimation of the cost saving expected to arise as a result of rationalisation of primary school provision in advance of the Scottish Executive’s indicative offer of revenue support, concluded that the project would be affordable to Angus Council assuming 80% funding on the eligible capital value of the new works. The Executive’s indicative offer has been announced to the Council in the region generally expected (see 1.14 below).

1.11 Angus Council has also considered the Project Management structure and Project Team, to take the project forward. In essence, day-to-day procurement will be addressed by a dedicated Project Team led by a Project Manager answerable to a Project Director. The Project Director would report to a Project Steering Group and would also undertake responsibility for consultation with direct and client users. Elected members of Angus Council would receive periodic reports at key milestones to take key decisions upon the direction of the project development and procurement.

1.12 Further, Angus Council has also considered its procurement strategy and timetable for the project. Angus Council would expect to be in a position to have appointed its specialist advisers and placed the OJEC Contract advertisement by December2003, to have selected a shortlist of bidders by April 2004 and to have received bids by October 2004. All this assumes no BaFO stage and no delays introduced through Statutory Planning /Orders processes proceeding in tandem. The Council would then expect to have selected a preferred bidder by January 2005 with achievement of Contract Award and Financial Close by August 2005 (within the Scottish Executive deadline of 31 March 2006 per SEDD Circular 8/2001). The expectation would be for construction to commence by December 2005 with a construction period of 27 months. The indicative overall timetable is included at Appendix 5 of Part D to the Tender Documents.

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1.13 The Council has considered issues which may affect deliverability, and has concluded that there are no insurmountable issues, which would evidently prevent the project from being deliverable within programme and budget. In particular, in terms of scale and absence of complexity (notwithstanding the predominance of refurbishment as opposed to new build in terms of the Council’s presently preferred option), there may be a positive attribute in terms of attracting market interest from medium-size regional contractors.

1.14 The Scottish Executive issued confirmation of its indicative offer of revenue support to the Council on 31 March 2003. This indicated support capped at £3.58m per annum over 30 years. Having reviewed the indicative offer, Angus Council is satisfied that it can afford the fund the anticipated difference between that level of support and the expected service charge over the life of the project. The Council is therefore in the course of revisiting its OBC submission towards finalising the Executive’s offer of support.

1.15 The procurement of this contract is proceeding under the Public Services Contracts Regulations 1993 (SI 1993/3228 implementing EC Council Directive 92/50/EEC), as amended (the “Services Regulations”) and has been advertised in OJEC, PIN Notice Ref. No. 2003/5 135-121931 dispatched to OJEC on 9 July 2003 and Contract Notice dispatched to OJEC on 13 August 2003.

1.16 These Tender Documents of which these instructions form part comprise 4 parts:

 Part A – these Instructions for Tendering (these are non-contractual but set out the rules of the competition which must be followed);  Part B – Conditions of Engagement (these set out the detailed terms and conditions of the Contract);  Part C – Appointment Brief (the Brief sets out the output specification of the Service required by the Council); and  Part D – Appendices.

The documents should be examined in detail along with such of the Reference Documents (see Appendix No 6) as are required for the Tenderer to satisfy himself as to the scope and nature of the advisory Services required along with the terms and conditions applying to delivery of the Services. An electronic copy of the Tender documents on disc is enclosed with this package (Microsoft Word 2000) to assist with Tender completion, etc. Tendereres should note, however, that unauthorised alterations to the Tender documents may invalidate their Tender (see Section 2 below).

1.17 The Council is following the relevant EU public procurement rules for this competition (contained in the Public Services Contracts Regulations 1993, as amended). In terms of those rules and the underpinning Treaty obligations, the Council is obliged to treat Tenderers fairly and equally, to act transparently and not to discriminate against Tenderers on grounds of nationality.

1.18 The Council is following the “open procedure” under those rules and, accordingly, is obliged to set out the required terms and conditions of the Contract in advance. The Council is not permitted to negotiate over those terms under the open procedure, and accordingly, proposed qualifications and modifications of those terms can only be considered by way of a “Variant Tender”. This is more fully explained in paragraphs 2.34 – 2.37 of these instructions.

1.19 Tenderers should note that the Appointment Brief is considered by the Council to correctly set out its requirements (subject to the critical evaluation of sufficiency to be undertaken by Tenderers – see paragraph 2.15.3 of these instructions). Accordingly, while proposed amendments to the Brief can be made by way of a Variant Tender, the Council will only consider such where they are fully explained and justified and there is evident benefit to the Council.

1.20 Terms defined in the Conditions of Engagement have the same meaning throughout the Tender Documents.

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1.21 The Council does not bind itself to accept any Tender. The Council reserves the right to alter or extend the timescales set out in these instructions where necessary or desirable. All prospective Tenderers will be notified in that event.

2. TENDER PROCEDURES

Conditions of Issue

2.1 Tenders must be submitted in accordance with the following instructions. Tenders not complying with these instructions may be rejected by the Council whose decision in the matter shall be final.

2.2 The Tender Documents must be treated as private and confidential having been supplied solely for the purpose of seeking Tenders for the Commission. Tenderers should not release details of the Tender Documents other than on an 'In Confidence' basis to those who have a legitimate need to know or whom they need to consult for the purpose of preparing the Tender.

2.3 The information provided by the Council with the Tender Documents or as part of the Tendering process is provided for the assistance of Tenderers only and is not warranted as to its accuracy or completeness (unless otherwise expressly provided). Tenderers are deemed to have satisfied themselves as to the Tender in all respects.

2.4 All information provided by Tenderers and obtained by the Council from referees will be treated as commercially confidential. Tenderers should note, however, that it is the practice of Angus Council in accordance with freedom of information and public procurement requirements to make public the names and addresses of all organisations applying to be invited to tender for Council contracts and the Tenderer awarded the Contract along with the winning price.

Qualification Assessment

2.5 The Council, in following the open procedure, does not restrict the submission of a Tender from any interested Tenderer. Tenders will not, however, proceed to full evaluation thereof (as explained in section 3 of these instructions) if the Tenderer fails to satisfy the Council’s minimum standards of economic and financial standing, ability and technical capacity or if the Tenderer is ineligible to provide a Tender to the Council. The criteria for these tests are explained more fully at paragraph 2.10 below.

2.6 To allow the Council to make that assessment of Tenderers, each Tenderer must provide the Council with a fully completed qualification Application form in the form set out at Appendix 7 to Part D of the Tender Documents. Where the Tenderer is submitting Compliant and Variant Tenders (see paragraphs 2.34 – 2.37 of these instructions), only the Compliant Tender need contain 1 completed Form (with supporting documents) provided that each Variant Tender for that particular Tenderer clearly incorporates the content of the Form etc. by reference. The Council may also seek supporting References from some or all of the organisations referred to in the appropriate section of the Application Form.

2.7 If there is insufficient space to answer fully any question, you may add separate continuation sheets provided: (a) they are clearly marked as relative to the relevant question number; and (b) they are signed as relative to the application form by the same signatory for the organisation.

2.8 Non-UK based organisations should complete the application form but, where necessary, substituting relevant legislation/codes of practice, etc applicable within their domestic jurisdiction and accompanied by suitable and sufficient evidence that the alternative legislation/code of practice etc. is equivalent to that stipulated by the Council. It is for the applicant to establish equivalency. In the case of doubt, early contact should be made with the Council providing such alternatives and

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proposed evidence of equivalency for the Council’s review and comment prior to the submission date stated below.

2.9 Failure to disclose relevant information or to fully complete the application may invalidate the application subject to the Council reserving the right, in its sole discretion, to allow the applicant to correct minor errors and inaccuracies.

2.10 The Council will admit applicants to its short list of tenderers on the basis of the following criteria:

2.10.1 Tenderers must firstly satisfy the eligibility criteria being those stipulated in Regulation 14 of the Services Regulations. Applicants passing this test will continue to the next stage of assessment.

2.10.2 The information submitted by Tenderers via the Qualification Application Form (Appendix No 7 refers) will then be assessed with regard to Regulations 15 and 16 of the Services Regulations.

The Council’s minimum standards are as follows:

(a) Technical capacity:  The Tenderer’s lead officer must be a qualified accountant of at least 10 years’ post-qualifying experience and with at least five years’ experience of PPP (or equivalent) transactions.  The Tenderer’s core team (principal staff) must comprise at all times a minimum of two qualified accountants each of at least 5 years post-qualifying experience and the current/projected workload of that team must display sufficient capacity to accommodate the requirements of this Commission.  The Tenderer must have a full compliment of support staff necessary to back-up their core team.  The Tenderer’s core team must comprise at all times at least one senior member of the Tenderer’s firm with sufficient authority to bind the firm in all matters arising during the course of the Commission. (b) Ability:  The Tenderer’s core team must have each dealt with the financial issues and documentation for at least 4 previous PPP (or equivalent) projects, 2 of which must have related to schools provision.  The Tenderer’s core team must be able to provide the full range of financial advice to be expected in a PPP of this nature.  The Tenderer’s core team must have full knowledge of the current financial problems which may arise in a PPP project of this nature and their solutions on a basis accepted in the current market.  The Tenderer’s core team must have full knowledge of the corporate structures, financing arrangements and documentation required of the Special Purpose Vehicle in a PPP project.  The Tenderer’s core team must have proven contract negotiating skills. (c) Financial standing:  The Tenderer’s average annual turnover for the last three complete accounting years must be not less than £0.5 million.  The Tenderer must carry the following insurances: i. Professional Indemnity for not less than £5 million per claim; ii. Public Liability for not less than £5 million per claim; and iii. Employer’s liability for not less than £10 million per claim (see Clauses 25 and 26 of the Conditions of Engagement).

Only Tenderers surpassing those minimum standards will then proceed to the short list.

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2.10.3 From the resulting assessment of applications, the Council will appoint short lists (one for each of the financial, legal and technical disciplines) of qualifying Tenderers whose Tenders will be evaluated by the Council. No bar will be placed by the Council on applications to be placed on more than one short list, subject to the Council being satisfied as to the organisation’s technical capacity and ability.

2.11 The Council does not, however, bind itself to accept any of the Tenders submitted.

Form of Tender

2.12 The Tender shall be made on the Form of Offer annexed as Appendix Number 1 to the Tender Documents. This should be duly completed and signed as indicated and accompanied by the signed Certificate of Non-Collusive Tendering annexed as Appendix Number 2 to the Tender Documents.

2.13 The Tender is sought on the basis of Hourly Rates for all work with an uncapped Tender Estimate forming a budget for the full Commission period. The Tender Estimate is not fixed but is expected to be robust and adhered to so a prior notification requirement is included for any departures. The Hourly Rates as bid will be set for the duration of the Commission subject to application of yearly indexation at RPI. The Form of Offer of Tender also has 3 Schedules annexed to capture this Tender pricing information as follows:

 Schedule 1 – Tender Estimate: Part A – Totals Excluding Indexation and Part B – Split by Financial Year including Indexation – must be fully completed  Schedule 2 – Table A (Hourly Rates) – must be fully completed; and Table B (Estimates for Unidentified Tasks) – may be completed (optional)  Schedule 3 – Checklist of Additional Items

It should be noted by Tenderers that to allow the Council to exercise good practice in respect of budget monitoring and financial control, the Consultant will be required to submit to the Council prior to the end of each financial quarter, an estimate of the time commitment of each member of the team for the coming financial quarter in the form of Schedule 1 Part A. A comparison of this estimate and the actual costs incurred per the Consultant’s invoices will be carried out by the Council, following which informal discussions may be required to identify the reason for any significant variances that may have arisen. See also clause 23 of the Conditions of Engagement.

2.14 Where the Consultant considers that specific additional tasks not identified in the Brief will be necessary for the satisfactory completion of the Commission, he should add these to Schedule 2 Table B. Such additions will not be used in the price assessment of tenders but may contribute towards the qualitative assessment of the Tender (see also Section 3 of these instructions)

2.15 In addition to the Form of Offer submitting pricing information for the Tender, a Supporting Methodology and Quality Statement is also required for each Tender addressing (a) the Tenderer’s methodology for delivering the Services in terms of the Brief; and (b) the qualities of the Tenderer’s team making them best suited to fulfil the Commission. The Statement will be used by the Council in assessing the qualitative aspect of the Tender (as distinct from the assessment already undertaken at the Qualification stage of each Tenderer’s eligibility, technical capacity and ability and economic and financial standing to deliver the Services). The following requirements apply to the Statement:

2.15.1 It should address each element of the Commission as contained in the Brief by reference to the numbered paragraphs therein.

2.15.2 It should outline the Tenderer’s proposed methodology including staff and resources for delivering each element of the Brief (i.e. commentary should be provided for each Brief

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element, using the Brief paragraph numbering for cross referencing). The following specific additional topics should also be addressed:

 The Tenderer’s views and proposed approach in use of the Scottish Standard Schools PPP Contract and in particular the payment mechanism therein  The Tenderer's assessment of their strength, stability and resources to carry out the commission and the qualities they would bring to the Council's project team  How the Tenderer would propose managing the negotiation phase of the project  The Tenderer's views on the main pro's and con's of an NPDO versus conventional SPV model structure for the project  The Tenderer's assessment of the potential issues arising for the project from application of the latest Treasury Green Book Guidance and in particular the Tenderer's views on optimism bias  The Tenderer's views on how they would seek to assist the Council to secure the most economically advantageous outcome from the project.

2.15.3 It should also critically evaluate the sufficiency of the Brief and make proposals for any additional tasks not addressed in the Brief. This should cross-refer to any additional task item(s) listed in Table B of Schedule No. 2 to the Form of Offer.

2.15.4 It should make reference to any PPP precedent project documentation which the Tenderer would intend to draw upon in delivering the Commission and what work, if any, the Tenderer has done to develop that precedent documentation in a way that would best fulfil the requirements of the Commission.

2.15.5 The Tenderer will have provided curriculum vitae information for all members of its core team in the Qualification Application form. The Statement should apply that information directly to the Tenderer’s suitability to fulfil the Commission. That information does not need to be repeated in the Statement, however.

2.15.6 The Statement should specifically demonstrate the following:

 the relevance of the knowledge and experience of the Tenderer's core team and why the Council should select it to deliver this present Commission; and  the knowledge and experience of the core team in relation to the financing arrangements, corporate structures and related documentation require of/for the SPC in PPP projects along with the team’s appreciation of the issues for the procuring authority in that regard.

2.15.7 The Statement should further address:

 the Tenderer’s view of the most important issues which the Council should be aware of in embarking on the proposed Project;  the Tenderer’s comments on the viability of the proposed Project timetable;  how the Tenderer would manage a change in personnel within the team during the period of the Commission; and  how the Tenderer would deal with any conflicts of interest that might arise during the Commission.

2.15.8 There should also be attached to the Statement a management structure diagram for the team which will deliver the Services.

2.15.9 The narrative text should not exceed 5,000 words.

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2.15.10The Statement should bear the Tenderer’s name and be signed and dated with reference to the Tender.

Tender Query and Consultation Process

2.16 Tenderers may seek further information from the Council or clarification upon the Tender Documents during the Tender preparation period.

2.17 Requests for such information or clarification should be made in writing addressed to the Angus Council contact for the purposes of this procurement stated at paragraph 2.25 of these Instructions. And using the form provided for the purpose at Appendix 9 to Part D of the Tender Documents. Such written request should specify:

 The name and contact details of the Tenderer for response purposes (e-mail is encouraged);  Full details of the request/query; and  Whether the Tenderer wishes the query to be treated as commercially confidential and, if so, why.

2.18 To ensure fair and equal distribution of information to all Tenderers, the Council will prepare and periodically circulate a Tender Bulletin to all Tenderers responding to questions raised except queries properly raised on a commercially confidential basis.

2.19 Commercially confidential queries will be responded to in writing to the individual Tenderer alone unless the Council is not satisfied that they may be validly kept confidential to that Tenderer only. In that later event, the Council will give the Tenderer the opportunity to withdraw the request which failing the Council will include the question and the Council’s response in a Tender Bulletin. The Council’s decision in this regard will be final.

2.20 The latest date for receipt of requests for further information/clarification on the tender Documents is 6 days before the Tender Return Date. Please see the Tender Period Timetable at Section 5 of these instructions. However, this is very much a latest date and early contact is encouraged.

2.21 Council Officers will also make themselves available for a Tender Consultation meeting with each tenderer during the Tender preparation period. It is expected that such meeting will take place approximately mid-Tender period. Again, reference should be made to the Tender Period Timetable at Section 5. These meetings will be held in Forfar, Angus, Scotland (UK).

2.22 The main purpose of the Tender Consultation meetings is to allow Tenderers the opportunity of discussing development of their Tender with the Council and assist them in Tender preparation (particularly where Variant Tenders are being considered by the Tenderer). Tenderers will therefore set the agenda for the meetings and, to allow the Council to properly prepare itself for the meeting, no Tender Consultation meeting will proceed unless the Tenderer has provided its agenda to the Council not less than 48 hours in advance of the set meeting date/time.

2.23 Accompanying these Instructions for Tendering for the information of Tenderers is a List of Reference Documents available for inspection as Appendix No 6 to the Tender Documents.

2.24 Appendix No 5 comprises the Council’s indicative Master Programme for the Project. Tenderers should satisfy themselves as to the practicability of the Master Programme in terms of timing and content and their ability to achieve the programmed dates. In assessing the Master Programme the Tenderers should make due allowance for the input from and interaction with consultees and similarly (where appropriate) with officers of the Council.

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2.25 The Council’s liaison officer for this Tendering process is:

Project Manager Education Department, County Buildings, Market Street, FORFAR DD8 3WE, Scotland, UK Tel No: (00 44+)/(0)1307 - 473168 Fax No: (00 44+)/(0)1307 – 461848 E-Mail address:

(or such other officer/address etc. as may be notified to Tendereres from time to time).

All queries regarding Tenders and the Tendering process should be addressed to the Council’s liaison officer in the first instance.

Tender Submission Requirements

2.26 Each Tender shall be submitted in a plain package or box bearing the official label issued with the Tender Documents and endorsed with the title of the Commission, the delivery location and the latest date and time for lodging the Tender. Where more than one package or box is required to be used, then each package/box should bear an official label and be numbered as part of a series (i.e. “Box 1 of 3” etc). Each separate Tender (i.e. Compliant/Variant) should be packaged separately. Tenders should be sent by registered post, recorded delivery service, Datapost or delivered by hand, to the Director of Law & Administration, Angus Council, St James House, St James Road, Forfar DD8 2ZE, to arrive by 12 Noon on Monday 13 October 2003.

Each Tender should be bound in a single folder wherever possible divided into the following parts:

 Part A – Offer of Tender including Schedules 1, 2 and 3  Part B – Qualification Application Form (except for Variant Tenders which may incorporate by reference – see paragraph 2.6 of these instructions)  Part C – Supporting documents relative to Qualification Application Form (please list at the beginning of Part C)  Part D – Supporting Methodology and Quality Statement  Part E – Certificates of Non-Collusion (Appendix 2)  (Part F – Variant Tender Supporting Information – Variant Tenders only – see paragraphs 2.37 of these instructions).

One principal signed copy marked as “principal” shall be submitted along with 4 numbered (i.e. “Copy 1”, “Copy 2” etc) and certified true copies (a certificate at the front of each copy folder signed by the Tenderer will suffice for this purpose). Tenderers are also requested to provide a CD containing an electronic copy of their Tender in a format compatible with Microsoft Office 2000 to assist with any further copying/distribution required for evaluation purposes.

2.27 If a Tender is received after the closing date and time, the Tender will not be considered by the Council and will be returned to the Tenderer. Tenders submitted by fax or E-mail shall not be considered.

2.28 The Offer of Tender must be signed by an authorised signatory on behalf of the bidder and completed where indicated. Particular care should be taken to state the correct legal name of the bidder. Failure to do so may invalidate the tender and/or the Contract.

2.29 Where an Offer of Tender is being submitted by a consortium, each legal entity/person comprising the consortium must counter-sign the Offer of Tender/Supporting Documents in each of their own names as each legal entity will require to undertake joint and several responsibility for the Commission.

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2.30 “Compliant” Tenders must not be qualified and must be submitted strictly in accordance with the Tender Documents. Tenderers must not make unauthorised changes to Tender Documents. Tenders must not be accompanied by statements that could be construed as rendering the Tender equivocal and/or placing it on a different footing from other Tenders. Only Tenders submitted without qualifications strictly in accordance with the Tender Documents as issued (or subsequently amended by the Council) will be accepted as being “Compliant Tenders” meeting these requirements and therefore open for consideration by the Council. The Council’s decision on whether or not a Tender is acceptable as being Compliant will be final. Qualified Tenders (with the exception of Tenders following the Variant Tender procedure set out below) may be excluded from further consideration and the Tenderer notified accordingly without further consultation.

2.31 Unit rates and prices must be quoted in Pounds Sterling and decimal fractions of a Pound. The Tender must be submitted in English language.

2.32 The Council does not bind itself to accept the lowest price or any Tender.

2.33 Tenders shall remain open for acceptance by the Council for a period of Ninety (90) days with effect from the final date for submission of Tenders stipulated in paragraph 2.26 of these instructions.

Variant Tenders

2.34 Where it is desired to submit a Tender involving qualifications or modifications to the Council’s requirements as contained in the Tender Documents this should be done by way of a Variant Tender. No Variant Tender will be considered unless a Compliant Tender based strictly on the Tender Documents without qualification is also submitted. Any Variant Tender must also clearly state any qualifications and be fully priced to show clearly how and where costs would differ from the Compliant Tender. The Council reserves the right to reject any Variant Tender without full evaluation if it is not satisfied that the Variant meets the Council’s minimum requirements. The Council’s minimum requirements for the Services referred to in these Tender Documents are as follows:

2.34.1 Comprehensive specialist financial advice on all aspects of PPP generally, the Forfar/Carnoustie Schools Project specifically and the proposed contract delivery structures 2.34.2 Financial advice, assistance and representation at all required tender process, clarification negotiation and other meetings. 2.34.3 Financial advice, assistance and input to the production of all required key financial models, documents and reports.

2.35 The Tenderer shall approach the Council in advance of submission of the Variant Tender to ascertain what special criteria and requirements apply in respect of the alternatives or modifications he is contemplating. Any such approach will be treated in strict commercial confidence. The Council’s response will not, however, be binding on the Council.

2.36 Variant Tender proposals shall be notified in confidence to the Council as early as possible during the Tender Period. A Variant Tender will not be considered unless this prior notification has been received not less than 2 weeks before the due date for return of Tenders. Notification should take the form of a draft list of proposed qualifications with supporting commentary. Following receipt of this notification the Council will give a preliminary opinion as to the acceptability of the modifications proposed; this will not be binding on the Council, however. In their own interests, Tenderers are advised to provide as much information as possible about the proposed modifications/qualifications at this stage.

2.37 If the Tenderer does decide to submit a Variant Tender, it must be accompanied by such supporting information as may be necessary commensurate with that required for the Compliant Tender. In particular, a fully priced Form of Offer (with Certificates) and a comprehensive list of qualifications

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with supporting commentary will be required to enable its technical acceptability and price to be assessed fully. The list of qualifications will correspond with the issues addressed in the prior notification.

3. EVALUATION OF TENDERS

3.1 In accordance with the EU public procurement rules referred to above, selection of the successful Tender will be on the basis of that determined to be the most economically advantageous Tender to the Council.

3.2 In making that determination, the Council will have regard to the following criteria (listed in decreasing order of importance):

3.2.1 The overall quality, strength and suitability of the Tenderer’s team, the quality of the Tenderer’s proposal to undertake the Commission and the Tenderer’s suitability to meet the Council’s requirements; and 3.2.2 The Tenderer’s price for the Services.

3.3 Variant Tenders will only be fully evaluated if they are considered to meet the Council’s minimum requirements for the Commission. These are as described at paragraph 2.34.1 of these instructions.

3.4 Variants which are fully evaluated will be so on the basis of the criteria stated above at paragraph 3.2 of these instructions and with the following criteria in addition (listed in equal order of importance but following on from the List at 3.2):

3.4.1 the relative value for money to the Council arising from the Variant Tender

3.4.2 the risks to the council arising from the Variant Tender 3.4.3 The deliverability of the Variant Tender

3.5 Tenderers should note that Angus Council may hold interviews with Tenderers and their relevant Teams during the evaluation phase as identified in the timetable at Section 5 of these instructions. Tenderers should accordingly ensure the availability of the relevant individuals for interview during that period. Where applicable, a proposed interview date will be notified to the Tenderers within 1 week of the Tender Return Date.

4. TENDER ACCEPTANCE AND NOTIFICATION

4.1 Following evaluation and reporting of the tenders received, the successful Tender selected by the Council will be notified by letter of Appointment and required Contract Award Notice placed in OJEC. Unsuccessful Tenderers will be notified at the same time. All Tenderers will be notified of the parties having submitted Tenders (alphabetical order) and the tender prices received (descending numerical order).

4.2 Unsuccessful Tenderers will be offered an informal debrief meeting in addition to their right to request written reasons from the Council why their Tender was unsuccessful (which written reasons will be provided within 15 days of such request, if any).

4.3 The successful Tenderer must submit to the Council within two weeks of the date of the Letter of Appointment, the executed Form of Agreement and details of their insurances, including details of any excess which they propose to effect or which they already hold and intend to use to meet the requirements of the Contract. Any questions concerning insurance must be raised with the Council before return of the Tender. The style of the Form of Agreement forms Appendix No 4 to the Tender Documents. This will be completed by the Council and submitted to the successful bidder along with

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the Letter of Appointment and requisite Insurance Certificates for completion by the bidder or its brokers.

4.4 Tenderers should note that it is expected that a period of approximately four weeks will elapse between the date of the Letter of Appointment and the Start Date of the Commission as notified in writing by the Council.

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5. TENDER PERIOD TIMETABLE

5.1 The expected timetable for the Tender period to the Tender Return Date and commencement of the Commission is set out below. As indicated at paragraph 1.21 of these instructions, the Council reserves the right to modify this timetable.

Item Stage Milestone/ Date(s) No. Period 1 Issue of Invitation to submit Tender A 15/08/03

2 Tender Consultation Meetings w/b A + 4 8/09/03 - weeks 12/09/03

3 Submission of Proposed Qualifications and B-2 weeks 29/09/03 Commentary (Variant Tenders only)

4 Latest date for Tenderer’s supplementary B-6 days 7/10/03 information requests

5 Tender Return Date A + 8 weeks 13/10/03 = B 6. Possible Tenderer/Team interviews w/b B + 4 10/11/03 – weeks 14/11/03 7 Selection of Successful Tenderer w/e B + 8 by 5/12/03 weeks 8 Notification to Tenderers w/e B + 9 by 12/12/03 weeks 9 Debrief Meetings (where requested) w/b B + 10 15/12/03 - weeks 19/12/03 10 Commencement of Commission B + 13 15/01/04 weeks

A13

ANGUS COUNCIL

Forfar/Carnoustie Schools Project

Phase 2 Consultancy Services - Project Development and Procurement

Financial Advisers

Tender Documents – Part B

Conditions of Engagement

Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Conditions of Engagement

Contents

Clause No Heading Page No PART 1 PRELIMINARY 1. Definitions and Interpretation B3 2. Start Date B6 3. Intended Completion Dates B6 4. Actual Completion Date B7

PART 2 PERFORMANCE 5. Care and Diligence B8 6. Performance of Duties B8 7. Compliance with the Brief and the Council’s Instructions B8 8. Sufficiency of Brief B8 9. Consultations B8 10. Meetings, Council Decisions & Information B9 11. Abortive Work B9 12. Consultant to Remain Responsible B10 13. Conflict of Interest B10 14. Employment of Council’s Staff B10 15. Staff Register and Approval B10 16. Assignation B11 17. Sub-Consultants B11 18. Variation and Instructions B12

PART 3 PAYMENT 19. Remuneration of Consultant B13 20. Reimbursable Expenses B14 21. Applications for Payments B14 22. Financial Control and Audit B15 23. Estimates of Cost B15

PART 4 INDEMNITIES AND INSURANCE 24. Consultant’s Indemnity B16 25. Professional Indemnity Insurance B16 26. Third Party and Employer’s Liability Insurance B17

PART 5 DEFAULT, SUSPENSION AND TERMINATION 27. Termination of the Contract due to Default etc. of Consultant B18 28. Termination or Suspension (including Consequential Extension) of the Contract where no Default B19 29. Defects after Completion B21 30 Damages and Set-Off B21 31. Corrupt Gifts and Payments of Commission B22 32. Dispute Resolution B22

PART 6 MISCELLANEOUS 33. Copyright etc. of Documents B24 34. Publication B24 35. Costs of Tender B25 36. Consent and Approval B25 37. Notices B25

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38. Legal Status, Partners and Directors B25 39. Discrimination B26 40. Human Rights B26 41. IT and Data Protection B26 42. Waiver B27 43. Severance B27 44. Application to Scotland B27

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PART 1 - PRELIMINARY

Definitions and Interpretation

1. In these Conditions of Engagement and the contract of which they form part the following phrases printed in quotation marks and bold type in the first part of this clause shall have the meanings ascribed against them and the interpretation stipulated in the second part of this clause shall apply throughout except where the context requires otherwise.

A - Definitions

“Application for Payment” shall mean an invoice rendered by the Consultant to the Council strictly complying with the requirements of Clause 21(a) of these Conditions of Engagement.

“Approval Documentation” shall mean all documentation required for obtaining the approval of the Council for:

 Changes to the Project Brief  Appointment of Sub-Consultants  Incurring reimbursable outlays and expenses which shall either be in the form specified in terms of this Contract or, where not so specified, in a form to be stipulated or approved of by the Council.

“Brief” shall mean Part C of the Tender Documents which sets out the role and requirements of the Consultant under the terms of the Contract.

“Certificate of Completion” shall mean the notice in writing to be given by the Council to the Consultant declaring the date of completion of the Commission in terms of Clause 4.

“Commission” shall mean the Phase 2 Consultancy Services – Project Development and Procurement: Specialist Financial advisory services for the Project in terms of this Contract between the Council and the Consultant.

“Completion Date” shall mean the date upon which the Commission has been completed as determined by the Council in terms of the Certificate of Completion.

“Conditions of Engagement” shall mean these conditions governing the Contract and comprising Part B of the Tender Documents.

“Consultant” shall mean the person, persons or firm specified in the Contract to provide the Services.

“Contract” shall mean the contractual relationship between the Council and the Consultant in terms of the form of offer, letter of Appointment and form of Agreement or howsoever otherwise constituted and subject to the terms, conditions, provisions, limitations, stipulations, requirements and others contained in the Tender Documents with the exception of Part A (Instructions for Tendering) thereof which does not form part of the Contract.

“Council” shall mean Angus Council, the local authority for the local government area of Angus having its principal offices at 7 The Cross, Forfar and shall include the officer or officers of the Council nominated as being the representatives of the Council for the purpose of the Contract where the context so requires.

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“Data” shall have the same meaning as assigned to that word in terms of Section 1(1) of the Data Protection Act 1998 but, for the purposes of this Contract, shall include all information relating to the Council’s customers and prospective customers, current and projected financial and (where relevant) trading situations, business and service plans, strategies, developments and all other information relating to the Council’s business affairs including all information of a confidential nature or imparted by whatever means by the Council to the consultant during the currency of the Contract.

“Documents” shall include all papers, deeds, plans, drawings and designs whether draft or final and in whatever medium or form.

“Financial Regulations” means the rules for governing the proper administration of the Council’s financial affairs for the purposes of sections 81 and 95 of the Local Government (Scotland) Act 1973 and the Local Authority (Accounts) Regulations 1975; restricted for the purpose of this Contract to the Financial Regulations relating to contract arrangements, namely (Regulation 16 and Appendices 1 and 2 thereof) .

“Financial Year” shall mean each complete period of one year commencing on 1 April and ending on 31 March throughout the currency of the Contract.

“Form of Agreement” shall mean the form annexed as Appendix Number Four to the Tender Documents.

“Form of Offer” shall mean the form annexed as Appendix Number One to the Tender Documents.

“Hourly Rates” shall mean the rates of remuneration for the Consultant at the hourly rate (or any of them) specified as applicable to the Consultant’s staff at the grades referred to all as stipulated in terms of Schedule Number Two to the Form of Offer.

“Index Linked” shall mean, as applied to a sum of money from a particular date, that sum multiplied by the following factor:

RPI(a) RPI(b) where:

(i) RPI(a) is the Retail Price Index for the month preceding the month in which the date falls to which the sum is to be Index Linked; and

(ii) RPI(b) is the Retail Price Index for the month in which the Tender Return Date falls.

“Instructions for Tendering” shall mean the set of instructions in accordance with which Tenders must be submitted to the Council comprising Part A of the Tender Documents.

“Letter of Appointment” shall mean a letter from the Council to the Consultant accepting the Consultant’s Tender which acceptance shall be conditional upon the Consultant producing to the Council the duly executed Form of Agreement and satisfactory evidence of adequate and appropriate insurance cover within two weeks of the date of the Letter of Appointment.

“List of Items” shall mean the list of services to be carried out by the Consultant and the corresponding staff payment rates as set out in the relevant annex to the form of offer.

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“Master Programme” shall mean the programme for the completion of the Project included as Appendix Number Five to the Tender Documents.

“Parties” shall mean both the Council and the Consultant or either of them, as the context requires.

“Project” shall mean the proposed public private partnership project for the provision of improved schools accommodation and facilities in the towns of Forfar and Carnoustie in Angus.

“Retail Price Index” shall mean the general index of retail prices (all items) presently published by HM Government (Central Statistical Office) or such replacement or (in the absence of a replacement) such reasonably equivalent index as may be published from time to time.

“Services” shall mean the services to be carried out by the Consultant in accordance with the Brief for the execution of the Commission.

“Start Date” shall mean the date from which the Consultant shall commence provision of the Services under the Contract.

“Supporting Information” shall mean the information submitted by the Consultant as part of the Tender and relied upon by the Council in awarding this Contract, including (without limitation):

 Details of the staff to be employed by the Consultant on the Commission  Details of the Consultant’s management structure  The Consultant’s outline methodology statement and proposal for undertaking and managing the Commission.

Declaring, however, that the Council’s reliance on the Supporting Information shall not imply or infer approval of the same or in any way diminish or relieve the Consultant from his obligations relating to due performance of the Commission in terms of this Contract.

“Tender” shall comprise the duly completed and signed offer made by the Tenderer to perform the Services incorporating without prejudice to the foregoing generality the offer made on the Form of Offer to carry out the works defined in the Brief at the lump sums and/or at the rates stated in the form of offer and submitted by the Tenderer along with the Supporting Information in accordance with the Tender Documents.

“Tender Documents” shall mean

 Part A - Instructions for Tendering  Part B - Conditions of Engagement  Part C - Brief  Part D - Appendices

“Tender Estimate” shall mean the estimate of the Consultant’s fees at the Hourly Rates for providing the Services for the duration of the Commission in terms of Schedule Number One to the Form of Offer or such replacement estimate as may be provided from time to time in terms of Clause 19(c).

“Tender Return Date” shall mean the date upon which the Tender required to be submitted to the Council in terms of the Instructions for Tendering.

“Tenderer” shall mean the person, persons or firm submitting a Tender to the Council in accordance with the Instructions for Tendering with the aim of being appointed to carry out the work set out in the Brief.

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“Year 2000 Conformity Standard” shall mean the British Standards Institute definitions of year 2000 conformity in terms of British Standard DISC PD2000-1A or any European Standard equivalent thereto.

B Interpretation

(i) Where the Consultant comprises more than one person, all those persons shall be jointly and severally liable for the performance of all obligations to be performed by the Consultant under the Contract.

(ii) The clause headings shall be of no effect in the interpretation of this Contract.

(iii) Words importing the masculine gender shall also include the feminine gender or the neutral gender, as the context so requires and vice versa.

(iv) Words importing the singular shall also include the plural as the context so requires and vice versa.

(v) Any reference to a Statute, Statutory Instrument, Order, Regulation or other legislation or any official technical standard shall be deemed to include a reference to any statutory (or official in respect of a technical standard) modification or re-enactment thereof. Any reference to primary legislation shall be deemed to also include a reference to relevant secondary or subordinate legislation deriving authority therefrom.

(vi) Any reference to a Clause shall be deemed to be a valid reference to a Clause of these Conditions of Engagement as so numbered or lettered unless the context requires otherwise.

(vii) Any reference to a Part of the Tender Documents shall be deemed to be a valid reference to the Part thereof as so numbered or lettered.

(viii) Any reference to a form contained in the Appendices comprising Part D of the Tender Documents shall be deemed to include a reference to a form substantially the same thereas and incorporating the necessary details for valid completion.

(ix) The definitions given in the first part of this Clause shall be deemed to include cognate expressions.

Start Date

2. The date of commencement of the Contract shall be the date of the Council’s Letter of Appointment. The Start Date shall be the date notified to the Consultant by the Council in writing and shall be not later than 6 months after the date of commencement of the Contract.

Intended Completion Dates

3. The intended completion dates of the key stages of the Project are those stated in the Master Programme. The Consultant shall use all reasonable endeavours to carry out the Commission to enable the Council to timeously meet the intended completion dates for those key stages contained in the Master Programme or such amended dates as may be agreed between the Parties.

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Actual Completion Date

4. (a) When the Consultant considers that the Commission is complete he shall give a notice in writing to that effect to the Council. The Council shall then within 15 working days issue to the Consultant a Certificate of Completion stating the Completion Date or shall give instructions to the Consultant in writing specifying all the outstanding matters which in the Council’s opinion require to be completed by the Consultant before the issue of such a Certificate of Completion.

(b) If the Council gives such instructions in terms of sub-clause (a) above, the Consultant shall duly complete those outstanding matters then re-submit to the Council a fresh notice under sub-clause (a) above but identifying the work done to complete the said outstanding matters. The Council shall respond to said further notice in like manner and with like effect as for Clause (a) above, mutatis mutandis.

(c) The Council shall give the Consultant one month’s written notice in the event that the Council requires to extend the duration of the Contract should this be deemed to be necessary by the Council for such further period as may be agreed between the Council and the Consultant. Clause 18 (f) and (g) shall apply to the Consultant’s remuneration in that event.

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PART 2 – PERFORMANCE

Care and Diligence

5. (a) The Consultant shall in the provision of the Services and in the discharge of all the duties hereunder agreed to be performed by him exercise the level of skill, care and diligence and with the full measure of competence that may reasonably be expected of a competent and experienced practitioner in the Consultant's field of practice expert in work of the nature of the Commission.

(b) Further to clause 5(a), the Consultant shall be bound to properly explain to the Council all necessary matters in relation to provision of the Services in fulfilment of the Commission and shall properly advise the Council in respect of all necessary matters to enable the Council to take any decisions that may be necessary in respect of the Commission. Any such explanation and advice shall be presented in plain and understandable terms that may reasonably be comprehended by officers and members of the Council without technical expertise in the field of practice of the Consultant but fully outlined and referenced and in writing where so required by the Council.

Performance of Duties

6. The Consultant shall undertake and perform the Services in accordance with the Brief and the Tender in execution of the Commission. All matters carried out in terms of the Commission not expressly delegated to the Consultant shall be subject to the approval of the Council but no such approval shall relieve the Consultant from responsibility for the duties undertaken by him in terms of this Contract.

Compliance with the Brief and the Council’s Instructions

7. The Consultant shall in carrying out his duties conform to and comply with the terms of the Brief and all subsequent instructions of the Council, which shall be confirmed in writing, so far as such instructions are applicable to and necessary for the further explanation or clarification of the Brief. In the case of any conflict which may arise between the terms of the Brief and any such subsequent instructions then the Brief shall prevail.

Sufficiency of Brief

8. The Consultant is deemed to have satisfied himself that he fully understands the scope and extent of the Contract including the Brief and the preliminary information made available to the Consultant at the time of tender and that he has sufficient information or will at the relevant time have sufficient information, to enable him to perform the duties required under this Commission. Whilst every care has been taken to ensure the accuracy of any information supplied by the Council as part of the Tender Documents or otherwise in connection with preparation of the Tender, the Council does not warrant the position.

Consultations

9. (a) The Consultant shall as the Commission progresses consult the Council and keep it informed in all matters connected with the Commission in such manner and at such times as the Council may require. The Consultant shall as required by the Brief consult all authorities having statutory powers and any person or

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authority having an interest or rights in connection with the Project and such other authorities, bodies or persons as the Council may direct him to consult and shall during the development of the Project comply with such of the requirements of the said authorities, bodies or persons as shall be approved in writing by the Council.

(b) The Consultant shall in performing his duties in terms of the Brief collaborate and confer with any other consultants and advisers who may be appointed by the Council to undertake duties relating to the Project as may be necessary for the due fulfilment of the Brief. Should any disagreements arise between the Consultant and such other consultants affecting the Project the same shall be referred to the Council whose decision shall be final.

Council Meetings, Decisions & Information

10. (a) The Consultant shall attend or be represented by a person or persons to be approved by the Council at all meetings either convened by the Council or at which it is necessary (in the Council’s reasonable opinion) for the Council to attend or be represented in furtherance of or in connection with the Project to which he may be invited and shall advise and assist the Council on all matters relating to the Project which lie within the scope of the Brief at such meetings, including by way of making representations for and on behalf of the Council in accordance with the instructions of the Council.

(b) Immediately upon the Consultant determining that a Council decision or information essential to the continuity of the duties or to achieving targets or key dates under the Contract is likely to be required the Consultant shall give notice of that requirement with full supporting information including the date by which such decision or information is required to the Council to ensure that there is no delay to the continuity of provision of the Services.

(c) The Council shall then, in liaison with the Consultant, determine and notify the Consultant in writing of the date by which the decision is to be made or the information is to be provided.

(d) Such decisions requiring Committee approval shall include but are not limited to additional expenditure on goods, services or fees (including sub-consultancies) selection and appointment of tenderers and the award of contracts in excess of specified financial limits as set out in the Council’s Financial Regulations. The Consultant shall be deemed to have familiarised himself with the relevant provisions of Financial Regulations (as defined). The Consultant shall take account of the need for Committee approvals in his programming.

(e) Where the Consultant makes any recommendation to the Council requiring the decision and agreement of the Council to proceed, any foreseeable consequential effect of the application of that recommendation not fully described and evaluated to the Council at the time of the recommendation or earlier shall be the full responsibility of the Consultant.

Abortive Work

11. (a) Immediately he is aware that any element of his duties is likely to be abortive for any reason, the Consultant shall notify the Council of:

(i) the probable nature of the abortive work;

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(ii) the cause of the work being abortive;

(iii) the estimated effect of the abortive work in terms of cost, of time of completion of the Project and of any other matters in relation to the Contract; and

(iv) any measures to be taken which may mitigate that effect.

(b) The Consultant and the Council shall jointly investigate, and the Council shall determine the actual extent of any abortive work provided that no payment shall be due to abortive work resulting from any fault of the Consultant.

Consultant to Remain Responsible

12. (a) The final payment under the Contract shall not of itself infer the satisfaction of the Council that the Services have been duly executed by the Consultant.

(b) The responsibility of the Consultant for the Contract shall not come to an end solely by reason of the making of any payment therefor.

Conflict of Interest

13. The Consultant shall:-

(a) be responsible for ensuring that no conflict of interest arises in respect of his duties under the Commission.

(b) make all possible enquiries to ensure that there is no conflict of interest prior to his assuming the duties required of him under the terms of the Commission.

(c) consult and advise the Council if the Consultant considers that a conflict of interest arises or if he considers that a conflict of interest may exist or may arise or may be foreseeable and shall furnish the Council with such information as shall enable the Council to determine whether or not a conflict of interest arises.

(d) for the avoidance of doubt a conflict of interest will exist where the Consultant is either an equity holder in any company seeking to tender for the Design and Construct Contract, or where the Consultant wishes to act for any such company, or where the Consultant has any similar interests in such a company.

(e) should a conflict of interest arise or be deemed by the Council to have arisen then the Commission may be immediately terminated by the Council in accordance with the provisions of Clause 27(b).

Employment of Council’s Staff

14. The Consultant shall not, during the period of appointment hereunder, contract with or retain as a consultant any person employed by the Council unless the prior written approval of the Council has been obtained.

Staff Register and Approval

15. (a) The Consultant shall obtain the written approval of the Council to all staff to be employed on the Commission.

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(b) The Consultant shall give the Council not less than five days’ prior notice of any proposed change of staff, other than that induced by short term illness, and such change shall be subject to the approval of the Council.

(c) The Council shall be at liberty to object to and require the Consultant to remove from the Commission any person employed by the Consultant who in the opinion of the Council misconducts himself or is incompetent or negligent in the performance of his duties relating to the Services or persists in any conduct which is prejudicial to safety or health or who acts or fails to act in such a way as is detrimental to the due progress of the Project or is prejudicial to the interests of the Council and such persons shall not be again employed upon the Commission without the permission of the Council. No compensation shall be payable by the Council in respect of such objection and removal.

Assignation

16. The Consultant shall not assign any rights or responsibilities of any part of the Commission.

Sub-Consultants

17. (a) The Consultant shall not sub-contract the Commission except as permitted in terms of this Clause 17. The Consultant shall not appoint sub-consultants except in respect of any Additional Fee Element of the Commission and then not without obtaining the prior written approval of the Council to the sub-consultancy and the identity of the sub-consultant using the relevant Approval Document, provided that:

(i) The Council shall be entitled to withhold its consent in its absolute discretion to any proposed sub-consultancy and the Consultant acknowledges the delectus personae nature of the Contract;

(ii) The Consultant shall provide as full information to the Council on the identity, eligibility, technical capacity and ability and economic and financial standing of the proposed sub-consultant as was obtained by the Council on the Consultant prior to award of the Contract, including interview of the proposed sub-consultant, if required by the Council and having regard to the part of the Commission proposed to be sub-contracted.

(b) In the event of the Council consenting to sub-consulting in terms of this Clause 17, the Consultant shall remain wholly responsible for the performance of the Commission including any part carried out by any sub-consultant appointed by him notwithstanding the permitted sub-contracting of any part thereof. The Consultant shall also remain wholly responsible for:

(i) complying with the whole terms and conditions of the Contract; and

(ii) ensuring the compliance of any permitted sub-consultant with the whole terms and conditions of the Contract, mutatis mutandis.

notwithstanding the permitted sub-contracting.

(c) The Consultant shall secure value for money for the Council in the appointment of any sub-consultancy in terms of this Clause 17. Without limitation to that generality, the Consultant shall:

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(i) provide the Council with a fixed fee cost for the Consultant procuring and administering the sub-consultancy prior to the Council consenting to the sub-consultancy;

(ii) obtain and exhibit to the Council not less than 3 competitive quotations for the sub-consultancy services unless the Council gives its prior written consent to less than that number; and

(iii) pass through the cost of the sub-consultancy to the Council without any addition.

Variation and Instructions

18. (a) Immediately the Consultant is aware of the need or desirability for a variation to the Commission he shall notify the Council informing it of the reasons, consequential effects including cost, and options available to mitigate these effects with a recommendation for action by the Council.

(b) Where it is necessary or desirable for the satisfactory completion of the Commission, whether on notification by the Consultant under Clause 18(a) or otherwise the Council may make variations to the Commission by:-

(i) increasing the Services (ii) amending the Services (iii) decreasing the Services (iv) accelerating the Services (v) deferring all or part of the Services (vi) abandoning further or any already completed part of the Services (vii) other means as may be deemed appropriate.

(c) Any variation shall be notified to the Consultant in writing utilising Approval Documentation and contain altered terms of the Brief.

(d) The Council shall be permitted to issue variation instructions orally. Any such instructions shall be confirmed by the Council utilising Approval Documentation within 7 days of such oral instruction.

(e) In the case of any conflict between the Contract and any other instructions, the Consultant shall forthwith notify the Council who shall issue in writing such further instructions in connection with the Contract as it considers appropriate to resolve the conflict.

(f) All rights and responsibilities of both the Council and the Consultant which have vested prior to a variation being made shall not be prejudiced by that variation.

(g) The Council shall pay to the Consultant the reasonable cost of any variation in terms of this Clause 18 having due regard to the cost of any comparable part of the Services.

(h) The terms and conditions of this Contract itself may only be varied by the written agreement of the Council and of the Consultant.

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PART 3 – PAYMENT

Remuneration of Consultant

19. Subject to the provisions of Clauses 27 and 28 hereof and subject to the Council being satisfied as to the due performance by the Consultant of his duties under this Contract, the Council shall pay to the Consultant fees calculated in accordance with this Clause on account at the intervals defined in Clause 21.

(a) The Consultant shall be remunerated for the Services provided to the Council at the Hourly Rates for the number of hours reasonably and actually worked on the Commission by the relevant individuals within the Consultant’s staff at the rate specified for the grade appropriate to that individual (or such replacement member of the Consultant’s staff as approved in terms of Clause 15) in terms of the Form of Offer. The following stipulations apply to the Hourly Rates:

(i) The rates are to include for basic time and overtime worked, non- productive overtime, bonuses, national insurance, holidays with pay, sickness benefits, pension and life assurance benefits, all travel and subsistence costs of whatever nature, computer costs, head office and overhead costs and profit.

(ii) The inclusive rates are also to include for any tax, charge, levy, impost or payment of any kind whatsoever which the Consultant at any time during the performance of the appointment is obliged by law to make on behalf of persons employed by them including all mobilisation and de- mobilisation costs.

(b) The Hourly Rates shall be Index Linked as at 1 April in each Financial Year during the currency of the Commission for the remainder of that Financial Year or to the Completion Date if that occurs before the end of the relevant Financial Year.

(c) The Consultant’s fee for any Financial Year during the currency of the Commission shall not exceed the Tender Estimate for that Financial Year in terms of the Form of Offer unless the Consultant has first notified the Council of the Consultant’s expectation that his fee will so exceed the Tender Estimate and provided a revised Tender Estimate for the remaining duration of the Commission. On receipt of such notification and revised Tender Estimate, the Council may accept said notification and revised Tender Estimate which it shall do within 28 days of receipt, provided that the Council may reasonably require additional information from the Consultant within that 28 day period in that event which shall re-commence on receipt by the Council of that additional information or the Council may suspend or terminate this Contract provided that no prior notice of suspension or termination of the Contract as is referred to in Clause 28(d) shall be required for the purposes of this Clause 19(c). In the event of the Council accepting said revised Tender Estimate such shall then supersede and replace the Tender Estimate current immediately prior to said acceptance.

(d) For the avoidance of any doubt, the Consultant shall not be entitled to any additional remuneration in excess of the Tender Estimate for any Financial Year for any period of time prior to notification being given by the Consultant in terms of Clause 19(c).

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(e) Where the Consultant engages any sub-consultancy work under the Commission in accordance with Clause 17, the Consultant shall be responsible for receiving, checking, verifying and approving all applications for payment by any such sub- consultant as being properly due for payment by the Council in accordance with the terms of any such sub-consultancy which shall be submitted to the Council as an Application for Payment by the Consultant. The Consultant shall remain responsible for the timely payment of any such sub-consultant irrespective of the timing of payment by the Council to the Consultant in terms of Clause 21.

Reimbursable Expenses

20. Any expenses and outlays payable to third parties other than sub-consultants as referred to in Clause 19 actually and necessarily incurred by the Consultant in the performance of the Services shall be reimbursable by the Council to the Consultant in addition to the fees referred to in Clause 19 provided that the incurring of any such expenses and outlays is approved of by the Council under Approval Documentation and in advance of being incurred by the Consultant, which Approval Documentation will also include an estimate by the Consultant of the expense or outlay and evidence to the satisfaction of the Council that the estimated expense or outlay is reasonable.

Applications for Payment

21. The following provisions of this Clause 21 shall apply to all Applications for Payment of fees referred to in Clause 19, reimbursable expenses and sub-consultancy fees properly due to the Consultant under this Contract, namely:

(a) The fees referred to in Clause 19 shall be paid monthly in arrears on rendering of a suitably detailed invoice by the Consultant to the Council specifying (as a minimum and in the form of Schedule 1 Part A) the period and the Brief elements to which the invoice relates, the Consultant’s fee-earners undertaking the relevant work, the hours worked, the Hourly Rates applied and the total sum claimed. Sub-consultant’s fees shall be paid for by the Council and claimed by the Consultant in like manner to the fees referred to in Clause 19. All claims for payment of reimbursable expenses and outlays under Clause 20 shall be included in the invoice for the fees referred to in Clause 19 or sub-consultant’s fees to which they relate which shall quote the Approval Documentation date and reference number applicable to those expenses and outlays. Value Added Tax (including that applicable to reimburse expenses and outlays under Clause 20), where applicable, shall be shown separately on all invoices as a strictly net extra charge. Provided that such invoices fully comply with the requirements of this clause then and only then shall they be treated as valid Applications for Payment.

(b) The Council shall pay a valid Application for Payment within 28 days of receipt of the Application for Payment with the last day of the said 28 day period being the final date for payment.

(c) Not later than 28 days after receipt of an Application for Payment the Council may give a written notice to the Consultant disputing the Consultant’s entitlement to all sums or any part thereof claimed under the Application for Payment stating the grounds of the Council’s dispute and specifying the amount, if any, of the sum under the Application for Payment which the Council accepts is due to the Consultant. If the Council and the Consultant are not able to resolve such dispute, it will fall to be resolved in terms of Clause 32 (Dispute Resolution) and the due date for payment by the Council of any such disputed

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sum shall be the date on which the Council may be found liable to make payment following determination of such dispute in terms of said clause 32.

(d) Any sum due to be paid by the Council under this Clause 21 remaining unpaid after the date the same fell due shall bear interest thereafter at a rate of 1% per annum above the base lending rate of the Bank of Scotland from time to time applicable on the sum due or balance thereof from time to time outstanding until paid by the Council in full.

Financial Control and Audit

22. The Consultant shall provide such information as may be required by the Council to enable it to exercise financial control over the cost of the Project and the cost of the Consultant’s work under this Contract including without limitation, records of all hours worked and by whom on the Commission and monies paid and received by the Consultant on the Commission, and shall afford facilities at all reasonable times for the Consultant’s books of accounts, vouchers and records held in whatever medium to be inspected by the Council for the purpose of verifying the Consultant’s claims for payment under this Contract. Where required by the Council, claims for fees and reimbursable expenses shall be supported by auditor's certificates. The Consultant shall keep and maintain such records for a period of not less than 6 years after conclusion of the Commission.

Estimates of Cost

23. (a) The Consultant shall submit to the Council prior to 30 June, 30 September, 31 December and 31 March in each financial year an estimate of the time commitment and cost anticipated by the Tenderer to be incurred and claimed from the Council in the quarter immediately following the relevant latest submission date for said estimate and that in the same form as Schedule 1 Part A to the Form of Offer.

(b) Without limitation to Clause 23(a), the Consultant shall from time to time as may be reasonably required by the Council, provide such estimate or estimates of the cost of provision of the Services already incurred (both billed and to be billed) and to be incurred in such form and containing such information as the Council may require.

(c) The Consultant shall from time to time as may be reasonably required by the Council and where so required by the Brief provide and/or contribute to and review such estimate or estimates of the cost of the Project in such form and containing such information as the Council may require. The Consultant shall advise the Council of any matter which would be likely to affect such costs and of any assumptions applied in terms of the Consultant’s estimation or review thereof.

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PART 4 – INDEMNITIES AND INSURANCE

Consultants Indemnities

24. (a) The Consultant shall be responsible for and shall indemnify the Council on demand against all liability for death or personal injury, loss of or damage to property (including property belonging to the Council or for which it is responsible) and breach of statutory duty and all actions, claims, proceedings, damages, costs, expenses and demands from any person in respect of or arising from the performance of or failure to perform the Contract by the Consultant but excluding:

(i) any such actions, claims or others insofar as (and only to the extent that) they are attributable to the negligence of the Council; and

(ii) any claims or expenses for consequential loss.

The Consultant shall throughout the Commission comply with all general or local Acts of Parliament or enactments of any other national governing body passed or to be passed or by any local or public authority relative to the performance of his duties under the Commission and shall keep the Council fully and effectually indemnified against all actions, proceedings, damages, costs, expenses, claims and demands in respect thereof or arising from any breach of such statutory duty whether by the Consultant’s act or omission.

Professional Indemnity Insurance

25. (a) Without prejudice or limitation to the foregoing indemnities under Clause 24, the Consultant shall take out and maintain throughout the execution of his duties in the Contract and for 6 years after conclusion thereof proper professional indemnity insurance with a reputable insurance company to the satisfaction of the Council and in respect of the Consultant’s business generally, which insurance may be limited in respect of any one claim provided that any such limit in any event should be not less than £5,000,000. Insurance for incidents involving pollution or contamination may be limited to an annual aggregate cover for incidents, providing that such limit be not less than £5,000,000. The Consultant shall ensure that insurance under this Clause 25 covers or is extended to cover any sub-consultants engaged under Clause 17.

(b) The Consultant shall, whenever required by the Council, produce to the Council a certificate, signed by or on behalf of the Consultant’s insurers/brokers, stating that insurance complying with this Clause 25 is in force, the period for which it has been taken out and providing details of any excess and exclusions on the policy.

(c) In the event that the Consultant shall at any time fail to take out or maintain such insurance under this Clause 25, the Council may take out and maintain such insurance in the Consultant’s name, and the Consultant shall pay to the Council the amount of all costs and expenses incurred by the Council in so doing. The Council shall be entitled to have its interest endorsed on any policy of insurance effected in terms of this clause.

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Third Party and Employer’s Liability Insurance

26. (a) Without prejudice or limitation to the foregoing indemnities under Clause 24, the Consultant shall take out and maintain throughout the execution of his duties under the Contract employers liability insurance fully complying with the requirements of the Employer's Liability (Compulsory Insurance) Act 1969, which employer’s liability insurance may be limited in respect of any one claim provided that any such limit in any event shall be not less than £10,000,000 and public liability insurance with a reputable insurance company to the satisfaction of the Council, which insurance may be limited in respect of any one claim provided that any such limit in any event be not less than £5,000,000.

(b) The Consultant shall, whenever required by the Council, produce to the Council a certificate, signed by or on behalf of the Consultant’s insurers or brokers, stating that insurance complying with this Clause 26 is in force, the period for which it has been taken out and providing details of any excess and exclusions on the policy.

(c) In the event that the Consultant shall at any time fail to take out or maintain such insurance under this Clause 26, the Council may take out and maintain such insurance in the Consultant’s name, and the Consultant shall pay to the Council the amount of all costs and expenses incurred by the Council in so doing. The Council shall be entitled to have its interest endorsed on any policy of insurance effected in terms of this clause.

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PART 5 – DEFAULT, SUSPENSION AND TERMINATION

Termination of the Contract due to Default etc. of Consultant

27. (a) Where the Consultant is in material breach of any term of the Contract, the Council shall notify him in writing of the breach and allow him not less than 14 days in which to remedy it. Where the breach is not capable of remedy or where the Consultant fails to remedy the breach within said 14 day period, the Council shall then be entitled by notice in writing to the Consultant to terminate this Contract immediately. Without prejudice to the foregoing generality a material breach of this Contract will be deemed to have occurred where the Consultant fails to carry out any written instruction properly issued by the Council within the specified time therein or, if none is specified, within a reasonable time.

(b) The Council may at any time, by notice in writing to the Consultant terminate this Contract immediately if:-

(i) the Consultant is incapable of properly performing the Services due to conflict of interest, legal incapacity or incompetent to perform or wilful misconduct in a manner which is incompatible with the performance of the Services, or

(ii) the Consultant, any partner or director of the Consultant or any member of the Consultant’s staff responsible for delivery of the Services is found to be or to have been involved in any way with any corruption or corrupt practice affecting this Contract or any other contract or agreement to which the Council is or would have been a party, or

(iii) the Consultant is incapable of properly performing the Services due to it or any member of its staff responsible for delivery of the Services being expelled from or seriously disciplined by his relevant professional institute or society, or

(iv) there shall be any unsatisfied judgement or decree for payment of a sum of money against the Consultant the time for appeal against which has expired, or

(v) the Consultant (including single members of a partnership) becomes bankrupt or makes composition or arrangement with his creditors, or is the subject of an application to the Court for an interim order under the Bankruptcy (Scotland) Act 1985, or

(vi) the Consultant has a proposal for a voluntary arrangement approved in accordance with the Insolvency Act 1986, or

(vii) the Consultant has an application made under the Insolvency Act 1986 in respect of the Company to the Court for the making of an administration order, or

(viii) the Consultant has a winding-up order made or (except for the purposes of amalgamation or reconstruction) a resolution for voluntary winding-up passed, or

(ix) the Consultant has a provisional liquidator, receiver or manager of the business or undertaking of the Consultant duly appointed, or

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(x) the Consultant has an administrative receiver, as defined in the Insolvency Act 1986, appointed, or

(xi) the Consultant has possession taken by or on behalf of the holder of any debentures secured by floating charge of any property comprised in, or subject to, the floating charge, or

(xii) any event equivalent in effect to anything stated in sub-paragraphs (v) to (xi) inclusive of this Clause occurs in respect of the Consultant in any jurisdiction.

(c) In the event of the Contract being terminated under this Clause 27 the Council shall be entitled to recover from the Consultant all loss and expense and all damage sustained by the Council by such termination and, without prejudice to the generality of this provision, the Council may forthwith employ and pay persons to carry out and complete the Commission in terms of this Contract at the expense of the Consultant declaring that the Council shall be entitled to use any monies otherwise due to the Consultant in terms of this Contract for the purposes of the completion of the Commission in terms of this clause.

(d) In the event of the Contract being terminated the Consultant shall immediately furnish to the Council all existing material and information which he has obtained or prepared in connection with the Project prior to termination and the Consultant shall not enjoy any right of lien or retention thereover. On receipt of such material and information the Council shall promptly assess the proportion of the fee which would otherwise, but for the provision of this clause, be due to the Consultant as shall be commensurate with the Services rendered by him up to the date of termination.

(e) In the event of the Contract being terminated, the Consultant shall take all possible steps to terminate or extinguish at the earliest possible date, and on the best possible terms, any commitment or liabilities entered into or incurred by him for the purpose of carrying out his obligations under this Contract.

(f) The Council may deduct any amount payable by the Consultant to the Council in respect of any loss or expense sustained by the Council from any other payment or payments due to be made to the Consultant by the Council under this Contract or any other Contract which may exist between the Consultant and the Council.

(g) The provisions of this clause shall be without prejudice to any other right or remedies which the Council or Consultant may have in law or under this Contract.

Termination or Suspension (including Consequential Extension) of the Contract where no Default

28. (a) The Council may by not less than one month’s notice in writing to the Consultant, suspend this Contract and upon any such suspension the Consultant shall be entitled to such fee proportionate to the fees referred to in Clause 19 as commensurate with the Services rendered by him up to the date of suspension.

(b) If the Council so requires within 6 months of such suspension, or within such longer period as the Parties to this Contract may agree, on notice by the

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Council to the Consultant of withdrawal of said suspension the Consultant shall resume performance of the Services and his duties under this Contract at the rates of fees stipulated in the Contract without adjustment and any payments of fee made under this clause 28 shall be treated as payment on account towards the fees payable under this Contract.

(c) If any such suspension extends beyond the said period of 6 months or such extended period referred to in Clause 28 (a) above may be agreed between the Parties to this Contract or if substantial changes are necessary on resumption, the Consultant may either resume performance of the Services and his duties under this Contract at the rates of fees stipulated in the Contract without adjustment or may terminate this Contract immediately by notice in writing to the Council.

(d) Where in any case the Council has given notice to suspend this Contract under the foregoing provisions of this Clause 28 the Council shall have the right, at any time after the giving of such notice, to terminate this Contract by one month’s written notice given to the Consultant.

(e) Where the Council or the Consultant have terminated this Contract in terms of this Clause 28, the Consultant shall not be entitled on such termination to any additional payment except for work done and not paid for or commitment entered into under the terms of this Contract with the agreement of the Council in writing between the date of suspension and the date of termination. On receipt of such notice of termination the Consultant shall take all possible steps to terminate or extinguish at the earliest possible date, and on the best possible terms, any commitment or liabilities entered into or incurred by him for the purpose of carrying out his obligations under this Contract. Upon such termination the Consultant shall immediately furnish to the Council all existing material and information as he has obtained or prepared in connection with the Contract prior to termination and the Consultant shall not enjoy any right of lien or retention thereover.

(f) Where this Contract is not suspended but the Consultant is delayed in the execution of the Services for a substantial period and for reasons which:-

(i) are not reasons for delay which could reasonably have been foreseen in the planning of the present Commission and Project and;

(ii) might reasonably have been expected to necessitate the suspension of the Contract were there not other duties in furtherance of the Services which the Consultant could usefully perform during the period of delay and;

(iii) are outside the Consultant’s control,

and as a result the Consultant suffers additional costs beyond those to which the Consultant is entitled in terms of this Contract, then the Consultant may serve notice in writing on the Council setting out his claim for such delay and specifying the period of delay claimed, the grounds for such claim, the additional costs incurred thereby and including all relevant evidence and material supporting such claimed period, grounds and additional costs. On receipt of a notice in terms of this Clause 28(f) the Council shall within 21 days of receipt accept or dispute such claim, the latter dispute being referred then immediately to resolution in terms of Clause 32.

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(g) On acceptance of such a claim or determination of such a claim in favour of the Consultant. The period of the Contract shall be extended for such period as is required for completion in respect of which extended period the Consultant shall be entitled to additional remuneration for those elements of the Commission which were precluded from being progressed for the reasons stated in this clause and which additional remuneration shall be paid at the rate or lump sum amount as the case may be stipulated in the Schedules to the Offer of Tender for those elements but increased in the same proportion as the increase (if any) in the Retail Price Index from the date of Tender to the date of conclusion of the period of extension.

Defects after Completion

29. (a) Where the Consultant has completed the Commission and the Council becomes aware of any defect in that work, the Council shall notify the Consultant, who shall, at his own expense and in liaison with the Council and/or any other party or parties nominated by the Council rectify the defect or where this is agreed by the Council to be impracticable or undesirable, take such other agreed steps to address the defect.

(b) These arrangements shall in no respect diminish the Council’s ability to recover damages from the Consultant, for losses incurred by the Council consequent upon the defect in question.

(c) If any part of the work when executed is found to contain a defect or defects which is or are in any way the result of any error in the documents prepared by the Consultant or otherwise attributable to the Consultant then the cost to the Council of remedying any such defects shall be paid by the Consultant to the Council.

(d) The Council may deduct any amount payable by the Consultant to the Council whether by way of damages or in respect of any loss or expense sustained by the Council from any other payment or payments due to be made to the Consultant by the Council under this Contract or any other contract or appointment which may exist between the Consultant and the Council.

Damages and Set-Off

30. If any part of the Commission is not performed or undertaken by the Consultant fully in accordance with and to the standards specified in relation to the Commission and in accordance with the several obligations of the Consultant in relation thereto then any payment applicable in respect of that part of the Commission may be withheld and/or deducted upon the Council giving a written notice to the Consultant not later than 5 days before the final date for payment of the amount due in terms of this Contract which shall specify any amount proposed to be withheld and/or deducted from that due amount, the ground or grounds for such withholding and/or deduction and the amount of withholding and/or deduction attributable to each ground, declaring that the Council reserves the right to amend the amount withheld and/or the ground or grounds for such withholding in the event of any subsequent arbitration, adjudication or litigation and the Consultant will repay or allow to the Council by way of damages any money paid to the Consultant in respect of any work as has not been so performed or undertaken, together with any loss or expense sustained by the Council as a result thereof.

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Corrupt Gifts and Payments of Commission

31. (a) The Consultant or anyone employed by him or acting on his behalf shall not:

(i) offer to give or agree to the giving, to any person in the service of the Council any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do any act in relation to the obtaining or execution of this or any other Contract with the Council or for showing or forbearing to show favour or disfavour of any person in relation to this or any other Contract with the Council, or

(ii) enter into this or any other Contract with the Council in connection with which Commission has been paid or agreed to be paid by him or on his behalf or to his knowledge, unless before the Contract is executed particulars of any such Commission and of the terms and conditions of any agreement for the payment thereof have been disclosed in writing to the Council.

(b) Any breach of the above prohibitions or the commission of any offence under the Prevention of Corruption Acts 1889 to 1916 by the Consultant or anyone employed by him or acting on his behalf (whether such breach or offence is with or without the knowledge of the Consultant) or the giving of any fee or reward the receipt of which is an offence under Section 68(2) of the Local Government (Scotland) Act 1973 in relation to this or any other Contract with the Council shall entitle the Council to terminate the Contract immediately and thereupon the provisions of Clause 27 shall have effect. In that case the Consultant shall not be entitled to any payment. In addition to costs and expenses recoverable by the Council as provided by Clause 27 the Council shall also be entitled to recover from the Consultant any other costs or losses incurred by the Council consequent upon such termination under this Clause and to receive from the Consultant such sums which in the opinion of the Council represents the amount or value of any gift consideration or Commission paid or agreed to be paid in breach of this Clause 31.

(c) In every sub-contract of any part of the Commission the Consultant shall incorporate such provisions as will impose on the Sub-Consultant liabilities equivalent to those imposed on the Consultant by this Clause 31 and such provisions as will entitle the Consultant to terminate the Sub-Contract on terms equivalent to those contained in Clause 27. In the event of any breach by the Sub-Consultant of any such provision the Consultant shall without prejudice to any of his obligations under this Contract take action in accordance with the terms of the Sub-Contract to exercise his rights against the sub-consultant. Failure by the Consultant to take such action shall be grounds for the exercise by the Council of its right under Clause 31 (b) to terminate the Contract. When the Consultant exercises his rights against a sub-consultant in accordance with this Clause he shall make no claim or agree to any claim being made on his behalf against the Council in respect of any consequential delays and extra costs arising from the Contract.

Dispute Resolution

32 (a) In the event of any dispute arising on any matter under this Contract and prior to engaging the dispute resolution mechanisms in terms of Clauses 32 (b) and (c) below, both the Council and the Consultant shall attempt to resolve the dispute

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first by informal compromise, including through referral of the dispute to a meeting between appropriately senior representatives of both Parties.

(b) The Council or the Consultant may refer a dispute on any matter under the Contract arising during the Commission for adjudication and either Party may give notice in writing to the other at any time of his intention so to do. The adjudication procedures in terms of the Housing Grants, Construction and Regeneration Act 1996 shall be adopted mutatis mutandis and applied to this Contract whether or not they would so apply in any event but for this clause.

(c) All disputes arising from or in connection with this Contract arising during the Commission other than failure to give effect to a decision of an adjudicator shall be finally determined by reference to the arbitration of a single arbiter to be agreed by the Council and the Consultant or failing agreement within fourteen days after either Party has given to the other a written request to concur in the appointment of the arbiter, a person to be nominated on the request of either Party by the President of the Law Society of Scotland in accordance with and subject to the provisions of the Scottish Arbitration Rules 1996. This arbitration procedure shall not apply to disputes relating to termination of the Contract or arising after the Completion Date.

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PART 6 – MISCELLANEOUS

Copyright etc. of Documents

33. (a) Subject to the provisions of Clause 33(b) below:-

(i) the Council shall be entitled to the copyright of and all other intellectual property rights in all Documents and other materials in whatever medium produced for the purposes of the Project by the Consultant or under his direction or supervision under this Contract;

(ii) the Consultant shall not use any such Documents or materials for any purpose other than the Commission except in accordance with a licence granted by the Council which licence shall not be unreasonably withheld and subject to such terms and conditions as may be required by the Council

(b) If the Consultant shall incorporate in any such Documents or materials any idea, invention, innovation or design in respect of which he has prior to the date of this Contract obtained or applied for any patent under the Copyright, Patents and Designs Act 1988 or registered a design under the Registered Designs Act 1949, the foregoing provisions of this Clause shall not operate to prevent the free use and exploitation by the Consultant of such idea, invention, innovation or design for any purpose other than the Commission.

(c) If in connection with the Commission the Consultant or any employee of his shall make or develop any idea, invention, innovation or design which may be capable of patent or the like protection or registration as the case may be, such idea, invention, innovation or design shall be the absolute property of the Council without further payment to the Consultant and he shall communicate in confidence details thereof to the Council and to no other person, firm or corporation whatsoever provided that in respect of any idea, invention, innovation or design to which this paragraph relates the Consultant may be entitled to share in the profits of any exploitation thereof at the discretion of the Council.

(d) Nothing in this Contract shall in any way modify or derogate from the intellectual property rights of the Council under the Copyright, Patents and Designs Act 1988 or otherwise.

(e) On completion or termination of this Contract all Documents purchased by the Consultant at the expense of the Council will become the property of the Council provided that the Consultant may retain upon the payment of such sums as may be agreed between the Parties to this Contract such of the said purchased Documents as the Council may permit. Any dispute between the Council and the Consultant over the proper amount of payment for said purchased Documents shall be determined in the manner provided by Clause 32 hereof.

Publication

34. (a) The Consultant shall not publish or cause to be published or communicate to any third party, other than those referred to in Clause 9 in any form any matter relating to the Project or to any work done under this Contract, except with the written consent of the Council, which consent shall not be unreasonably withheld.

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(b) The Consultant shall not use or reproduce any of the Documents used in the Commission unless with the prior written agreement of the Council and subject to such terms and conditions as may be agreed between the parties.

Costs of Tender

35. The Council and the Consultant shall each bear their own costs and expenses incurred in the preparation and execution of the Tender preceding this Contract.

Consent and Approval

36. (a) The giving of any consent or approval by or on behalf of the Council shall not in any way relieve the Consultant of any of his obligations under the Contract or of his duty to ensure the correctness, accuracy or suitability of the matter or thing which is the subject of the consent or approval.

(b) Failure by the Council or any of its officers to disapprove or object to any matter or thing shall not prejudice its power subsequently to take action under the Contract in connection therewith.

Notices

37. (a) Any notice or document to be served or given by the Council to the Consultant in connection with the Contract, whether before or after termination, may be served or given by handing the same to a duly authorised representative of the Consultant (which, for the avoidance of doubt, shall include any Director or Secretary or officer of the Consultant or any partner in the case of a partnership) or by sending it to the Consultant at the address shown in the Form of Offer or at any address subsequently notified by the Consultant to the Council in writing to replace such address for this purpose, by post.

(b) Any notice or document to be given or served by the Consultant to the Council in connection with the Contract may be served or given by post or delivered by hand to the Council at the address set out in the Form of Offer or at such other address as notified by the Council in writing to the Consultant and marked for the attention of the person as set out in the Form of Offer.

(c) A notice or demand or other document sent by post in accordance with this Clause will be treated as validly served or given two working days after posting.

(d) In proving service effected by post, it shall be sufficient to prove that the envelope containing such notice or document was properly addressed and posted as a prepaid first class or registered or recorded letter. Where delivery is effected personally, receipt will be proven by production of a receipt signed by a duly authorised representative of the receiving party. Each of the Parties shall notify the other forthwith in writing of any change of address or other details for this purpose.

Legal Status, Partners and Directors

38. (a) If the legal status of the Consultant shall change in any way, the Council shall be so informed in writing, immediately.

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(b) The Consultant shall inform the Council of any change in the names or numbers of Partners or Directors of the Consultant.

(c) The name of the Partner, Director or Consultant’s Representative stated in the Tender as being responsible for liaison with the Council shall not be changed without the written agreement of the Council which agreement will not be unreasonably withheld.

Discrimination

39. (a) The Consultant shall not discriminate in relation to performance of the Contract on the grounds of gender, disability, colour, race, ethnic or national origin or religion or any statutory modification or re-enactment thereof.

(b) The Consultant shall take all reasonable steps to secure the observance of the provisions of sub-clause (a) of this Clause by all servants, employees or agents of the Consultant and all Sub-Consultants employed in the execution of the Contract.

Human Rights

40. (a) Where, in terms of this Contract, the Consultant, is deemed to undertake the functions of a public authority in terms of Section 6(3)(b) of the Human Rights Act 1998 (the “HRA”), the consultant shall at all times strictly comply with the requirements of the HRA.

(b) The Consultant shall indemnify the Council against all losses, costs, expenses, damages, liabilities, demands, claims, actions or proceedings which the Council may incur arising out of a breach of this condition by the Consultant.

(c) The Council will monitor the Consultant’s compliance with the HRA at periodic intervals during the performance of the Contract and the Consultant shall do everything expedient or necessary to assist that monitoring.

IT and Data Protection

41. (a) the Consultant shall comply strictly with all requirements of the Data Protection Act 1998 (the “DPA” ) and shall indemnify the Council against all losses, costs, expenses, damages, liabilities, demands, claims, actions or proceedings which the Council may incur arising out of a breach of this condition (including clause 41(b) hereof) by the Consultant.

(b) Without limitation to the foregoing requirement and with reference to paragraph 12 of Schedule 1 to the DPA, the Consultant undertakes as follows in relation to all Data disclosed to it by the Council for the purposes of the Contract:

(i) the Consultant shall keep all relevant data confidential and to process all such Data strictly and only in accordance with all lawful instructions issued by the Council from time to time;

(ii) the Consultant shall ensure that only such of its employees who may be required by the Consultant to assist it in meeting its obligations under this Contract shall have access to the Data;

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(iii) the Consultant shall assist the Council with any subject information requests which may be received by the Council under the DPA in respect of any data within the time limits imposed therein;

(iv) the Consultant shall not use the Data for a purpose which is inconsistent with the purposes notified to the Data subjects by the Council or to disclose the Data to a third party other than at the specific request of the Council;

(v) the Consultant shall comply with the Council’s IT Security Policy (as issued from time to time), the consultant shall maintain a written security policy during the currency of the Contract for the processing of Data and that it will allow its Data processing facilities, procedures and documentation to be inspected and accessed and scrutinised freely by the Council;

(vi) on termination of the Contract, the Consultant shall cease to process the Data and shall arrange for the prompt and safe return of all Data belonging to the Council and any copies thereof to the Council.

(c) The consultant shall ensure that all information, reports and Data produced in terms of the Commission shall comply with the Year 2000 Conformity Standard and shall be so produced in a format compatible with the Council’s corporate information communication and technology systems and packages.

Waiver

42. Failure by the Council at any time to enforce the provisions of the Contract or to require performance by the Consultant of any of the provisions of the Contract shall not be construed as a waiver of any such provision and shall not affect the validity of the Contract or any part thereof or the right of the Council to enforce any provision in accordance with its terms.

Severance

43. If any provision of the Contract shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other provision all of which will remain in full force and effect.

Application to Scotland

44. (a) This Agreement shall be construed and interpreted in accordance with the Laws of Scotland and shall be subject to the jurisdiction of the Scottish Courts.

(b) All the Council’s common law rights are reserved.

B27

ANGUS COUNCIL

Forfar / Carnoustie Schools Project

Phase 2 Consultancy Services - Project Development and Procurement

Financial Advisers

Tender Documents – Part C

Appointment Brief

Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

1 Background

1.1 The background to the current status of the Project is described in paragraphs 1.1 to 1.21 of the Instructions for Tendering (Tender Documents – Part A). In summary this highlights the Council’s excellent track record of investment in its school estate within the limited resources available. This particular project is however intended to provide a more strategic solution to the school accommodation problems in the burghs of Forfar and Carnoustie. Subject to consultation, the Project envisages the provision of 3 new build primary schools, the substantial refurbishment of a further 3 primary schools and the refurbishment of one secondary school. Some rationalisation of provision is also currently envisaged. The Council is seeking a private sector partner to work with the Council to secure the aforementioned upgrades and thereafter provide such ongoing facilities management services as the Council will require.

1.2 The Council’s general objectives/desired outcomes for the Project are:

 To provide improved schools accommodation and facilities including ICT infrastructure – hardware and software requirements will be addressed as part of the ICT Development Plan in accordance with best modern design and practice to meet the learning and community needs of Angus and its citizens in the 21st Century.

 To raise standards and to provide the opportunity for integrated and coherent curricular needs and demands, through the provision of such schools accommodation and facilities, with particular reference to:

 5 – 14 curriculum;  working co-operatively;  ethos within the school; and  learning and teaching skills.

 To contribute further towards the shared vision of Angus Council’s Education services, through the provision of such schools accommodation and facilities, with particular reference to:

 realising the potential of all children, young people, staff and communities;  putting people at the heart of all that we do;  nurturing an ethos of achievement;  striving for sustainable improvement; and  working co-operatively.

 To provide such schools accommodation and facilities which:

 are affordable;  represent best value for money; and  free resources from accommodation and facilities maintenance to investment in teaching.

 To focus on the schools provision in the Forfar and Carnoustie areas and provide the most suitable provision for these communities in light of the general objectives of the project outlined above.

 To address the extent to which specialist provision (including Pre-school, Special Educational Needs, Sports and Leisure) and community provision (including Community Education and Social Work Services for children, young people and families) should be included in that schools provision in the Forfar and Carnoustie areas.

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2 Basic Commission details

2.1 The Council have created an in-house Project Team with representatives from the Education, Property Services, Finance and Law and Administration Department. The remit of the Project Team is to manage the delivery of this Project and the Council are now seeking to appoint external advisers to assist and work with the Project Team towards the full development and procurement of the Project. This brief sets out the Council’s requirements for the appointment of a Consultant to the Project.

2.2 The aim of this Commission is to assist and advise the Council and its other specialist advisers with reference to the full development and procurement of the Project, including the formulation of contract documentation, the tendering process, evaluation and negotiation leading to contract award.

2.3 In undertaking this Commission the Council expects the Consultant to utilise appropriately qualified and experienced staff and to undertake all tasks using due professional skill, care and diligence. Throughout the period of the Commission, the Consultant shall at all times act in the best interests of the Council both in respect of achieving the objectives of the Project and in respect of achieving these objectives in the most economically advantageous manner.

2.4 Throughout the Commission the Consultant shall be required to operate a quality management system.

2.5 Appendix 8 of Part D to the Tender Documents forms a diagram of the structure intended to be employed by the Council in taking the Project forward.

2.6 As stated at 2.1 above, the Council’s Finance Department has representation on the in- house Project Team. This representation is in the form of a lead Finance Officer with overall responsibility for the Finance input to the Project and a support Finance Officer responsible for the day to day Finance input. The lead finance officer (or in his absence the support finance officer) will be responsible for receiving and co-ordinating the Consultant’s work and the Consultant will therefore report directly to the lead officer. The Consultant will be expected to work closely with the Finance officers generally and to add value to the in-house resource which has some limited non-schools PPP experience. The Consultant will also be expected to liaise with the other members of the Project Team, other appropriate Council officers, other specialist advisers and with any relevant external parties as necessary to allow progress of the Commission.

2.7 The Consultant will be required to attend meetings of the Project Team where advised as necessary by the Project Team’s Finance officers or the Project Manager as appropriate. The Consultant may also be required to attend other meetings where advised as necessary, including Project Steering Group and public meetings, where the Consultant’s work under the Commission (or part thereof) is the subject of such meetings. The Consultant will also be required to attend meetings with other specialist advisers and bidders as necessary and as the Consultant would expect for a PPP of the nature of this Project. Such meetings would be expected to include risk workshop, consultation, clarification and negotiation meetings.

2.8 Appendix 6 to Part D of the tender documents forms the current list of reference documents available for inspection by all bidders for the Commission. All bidders will be deemed to be aware of the contents of these reference documents.

3. Key Inputs and Outcomes Expected from the Commission

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3.1 Introduction

3.1.1 The following section sets out a summary of the broad inputs and outcomes expected from the Commission.

3.1.2 Fuller detail in respect of the specific elements of the Consultant’s Commission is given in the outline and detailed requirements which follow at sections 4 and 5 of this Brief.

3.2 Key Inputs

3.2.1 In terms of this Commission, the following list details the broad inputs that are expected in respect of the Consultant’s involvement in the Project:

 Attendance at and constructive input to all required meetings. Such meetings will specifically (but not exclusively) include: o Project Team and Steering Group as required; o Pre-tender consultation meetings / interviews; o Scottish Executive meetings as required; o Tender evaluation / clarification meetings; o BaFO meetings (if required); o Contract negotiation meetings; o Post contract award meetings; and o Consultation / enquiry meetings.  Provision of constructive comments and input to all Project documentation. Such documentation shall specifically (but not exclusively) include: o OJEC notice; o Instructions for Tendering; o Project Agreement, in particular the payment mechanism, refinancing and termination compensation provisions; o Technical Schedules (where applicable); and o Direct Agreements (particularly funders Direct Agreement) and ancillary documentation.  Noting and distribution of meeting minutes where required;  Provision of evaluation and assessment reports at all relevant stages of the Project. Such stages shall specifically (but not exclusively) include; o Revised Business Case; o Key Stage Review(s); o Pre-qualification of bidders; o Tender procedure compliance; o Tenders; o BaFO (if required); o Selection of Preferred Bidder and Reserve Preferred Bidder; and o Final Business Case o Contract Award  Construction and provision of any relevant financial models. Such models shall specifically (but not exclusively) include: o Shadow model (Reference Project); o Scottish Executive Level Playing Field Support calculations; and o Public Sector Comparator.  Provision of advice on the operation, assumptions, etc. of all financial models submitted by the bidders, particularly with reference to the calculation of Unitary Charges.  Drafting of / provision of comments and constructive input to all risk matrices and risk assessment reports.

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 Provision of all general financial advice pertinent to PPP projects generally and this PPP Project specifically. Such advice shall specifically (but not exclusively) include: o Vat advice; o Other general taxation advice; o “Off balance sheet” accounting treatment; o Accounting treatment relating to asset transfers; o Private sector rates of return; o Prevailing market conditions; and o Funding arrangements.

3.3 Broad Outcomes

3.3.1 In broad terms the required outcomes from the commission are a project development and procurement process :-

 Which meets the Council’s overall educational and other objectives for the project

 Which gives the Council the most encomically advantageous outcome possible in terms of value for money, risk transfer, affordability and accounting treatment

 Which results in the timeous delivery of the project

 Whereby all of the legal documentation connected with the project is robust and complete in terms of finance discipline content

 Which keeps to a minimum the Councils procurement costs

 Which ensures the Council is fully advised at all times throughout of the key finance discipline related issues impacting on the above outcomes and the action required from the finance discipline to remedy any deficiencies therein.

4. Outline of the Elements of the Commission

4.1 Introduction

4.1.1 The purpose of the Commission is to procure advisory services of a financial nature for the development and procurement of the Forfar / Carnoustie Schools Project (as described in the Instructions for Tendering – Part A). Whilst this Brief provides details of the formal relationship between the Council and the Consultant, the Project Team and the Finance Officers in particular, would seek to establish a flexible and constructive working relationship with the Consultant to maximise the benefit of their input.

4.1.2 The specific elements of the Commission will include the activities stated in the following paragraphs. Section 5 of this brief provides further detail of the requirements for each of these elements of the Commission.

4.2 Commission Management

4.2.1 Appoint a representative for liaison and meeting attendance purposes.

4.2.2 Administer a quality management system.

4.2.3 Review the indicative Master Programme for the Project as set out at Appendix 5 to Part D of the Tender Documents.

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4.2.4 Review of Project development work to date.

4.2.5 Maintain Project control documentation in conjunction with the other specialist advisers.

4.2.6 Attend such meetings as may be required and prepare notes of all meetings attended and action points arising as may be relevant to the Consultant’s role.

4.2.7 Provide financial and programme monitoring and control.

4.2.8 If required, manage and co-ordinate the input of other specialist advisers appointed by the Council in so far as this relates to the work and outcomes expected of the Consultant.

4.3 Project Development

4.3.1 Assist in the development of the extent of the construction, lifecycle, maintenance and facilities management aspects (i.e. the Reference Project) of the Project to form a viable commercial package.

4.3.2 Assist in promoting the Project to potential bidders.

4.3.3 Assist with the preparation / evaluation of Project cost estimates produced by the Council or its other specialist advisers.

4.3.4 Provide advice on VAT and other taxation matters in respect of all stages of the Project to ensure that the Project is progressed in the most tax efficient manner.

4.3.5 Advise on funding issues and provide appropriate general financial advice with reference to PPP.

4.3.6 Provide general financial advice as necessary in connection with the Project.

4.3.7 Assist with consultations with all relevant statutory and non-statutory bodies as required.

4.3.8 Assist with development of contract control mechanisms.

4.4 Economic assessment and justification

4.4.1 Prepare risk assessments and assist in the development of risk matrices.

4.4.2 Carry out Value for Money assessments and attend VFM workshops.

4.4.3 Advise on the financial aspects of Best Value in relation to the Project.

4.4.4 Consider affordability issues to be addressed by the Council and suggest practical solutions or alternative means of mitigating these issues.

4.4.5 Advise on risk transfer and “off balance sheet” status.

4.4.6 Prepare reports on accounting treatment matters as pertaining to the Project.

4.4.7 Advise and assist in the review and development of all potential models / structures for delivery of the Project.

4.4.8 Undertake financial evaluations of the Project, including preparation of financial models, the public sector comparator and payment mechanisms/structures.

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4.4.9 Advise on the treatment of assets, in particular the transfer of assets to the private sector and the treatment of assets existing at the end of the contract period and in particular the impact on Scottish Executive support calculations.

4.4.10 Assist in the production of all documentation relating to the Key Stage Review, the revised business case and the final business case, including attendance at all relevant meetings (e.g. with the Scottish Executive).

4.5 Project procurement and the tendering process

4.5.1 Provide general advice on all aspects of the procurement process and timetable.

4.5.2 Assist in the preparation of the pre-qualification documents, including the evaluation criteria.

4.5.3 Assist in the financial evaluation of the pre-qualification submissions and provide recommendations as to the bidders to be considered for selection as tenderers.

4.5.4 Assist in the preparation of contract documents, including all related documentation.

4.5.5 Assist in the preparation of the Project specification and the Invitation to Negotiate / Tender documentation, including the tender evaluation criteria.

4.5.6 Attend meetings with tenderers as required, respond to tenderers questions on the Council’s behalf and assist with drafting any required revisions to the contract documentation.

4.5.7 Undertake an evaluation of all financial aspects of the tenders received (including any variant proposals).

4.5.8 If required, participate in all aspects of a Best and Final Offer (BaFO) tendering stage, in line with the participation expected and detailed for the main tendering stage.

4.5.9 Notwithstanding paragraph 4.5.7, assess and provide advice in respect of issues arising from the bidder’s proposed financing structure.

4.5.10 Assist in the process of selection of the Preferred Bidder and the Reserve Preferred Bidder.

4.5.11 Participate in final negotiations to secure the best and final position from the Preferred Bidder and if required, the Reserve Preferred Bidder.

4.5.12 Assist with the finalisation of the contract documents to achieve financial close.

4.5.13 Attend and contribute to debriefing meetings with unsuccessful tenderers.

4.5.14 Attend and contribute to debriefing meetings with the Council and other specialist advisers.

4.6 General

4.6.1 Liaise with the Council and the Council’s other specialist advisers as required.

4.6.2 Provide any other general financial advice as may be required by the Council or its other specialist advisers pertinent to the Project and which would be reasonably expected in a Project of this nature.

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5. Details of elements of the Commission

5.1 Introduction

5.1.1 Section 4 of this Brief identifies the outline elements of the Commission to be undertaken by the Consultant. This section of the Brief sets out in more detail the Council’s requirements of the Consultant in relation to those identified elements.

5.2 Commission Management

5.2.1 Appoint a representative.

The Consultant shall appoint a representative to be a project manager for the Commission and to act as the main liaison between the Consultant, the Council and the other specialist advisers. It shall be the responsibility of this named representative to ensure that consistency and continuity is achieved in the provision of advice and assistance to the Council by the Consultant.

5.2.2 Administer a quality management system.

The Consultant shall operate a quality management system for this Commission.

5.2.3 Review the Project master timetable.

The indicative Master Programme for the Project is set out at Appendix 5 to Part D of the tender Documents. This timetable will depend on several factors including the time required to complete the Statutory Procedures and is therefore indicative only at this stage. This timetable will require to be reviewed immediately following Commission award by all the Council’s specialist advisers for the Project and will be further refined / adjusted as the Project develops. Although it is the Council’s aspiration that the Project financial close is achieved in accordance with the indicative dates contained in the timetable, those dates do not constitute a firm programme towards completion of this Commission and as a result the Commission completion date may be uncertain.

The Consultant’s Commission is intended to allow the master timetable to be achieved. The Consultant will therefore meet the milestone dates as currently shown on the timetable or such dates following appropriate amendment of the timetable as may from time to time take place. Within two weeks of the Start Date, the Consultant shall, in conjunction with the Council and the Council’s other specialist advisers, provide input to the production of a consolidated work programme which meets the Council’s key target dates. The co-ordination of the consolidated work programme will be the responsibility of the Council’s Project Manager.

5.2.4 Review the Project development work to date.

The Consultant will review the work which has already been carried out in relation to the financial elements of the Project, with a view to applying their expertise and experience in respect of PPP projects to determine the adequacy of that work. This review shall also identify the further work which needs to be carried out in order to inform the completion of the consolidated work programme.

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5.2.5 Maintain project control documentation.

The Consultant shall in the execution of the Commission seek written confirmation from the Council for any amendments to the Project Brief, written approval to employ sub- advisers and specialists and approval before incurring reimbursable expenses. Appendix Three (Part D of the Tender Documents), Annexes 1, 2 and 3 indicate the format of the Project control documentation to be submitted to the Council in order to fulfil the project control requirements.

5.2.6 Attend meetings and prepare meeting notes and action points arising.

The Consultant’s representative shall, as required by the Council, attend all meetings relevant to the Consultant including progress meetings to advise on all financial matters pertinent to the Project and on the progress of the various elements of the Commission. At such meetings, the Consultant’s representative shall be accompanied by any relevant and appropriate professional staff and sub-advisers to report fully the progress of the Commission.

The Consultant’s representative shall maintain notes pertinent to their role at all meetings attended and shall maintain a list of such action points arising as may be relevant to the Consultant’s role (see also paragraph 5.2.8 of this section of the Brief).

5.2.7 Financial and programme monitoring and control.

The Consultant shall, as required by the Council, provide estimates of the Project promotion costs and timescales. The Consultant shall maintain a programme for his work which will be updated after each progress meeting to reflect the agreed projected and actual progress on the Project with, for example, respect to achievement of the milestone dates in Appendix 5. The Consultant shall provide information to the Council to enable the consolidated programme to be maintained and shall take cognisance of the Council’s master timetable, milestone dates and the programmes of the other specialist advisers in developing their programme. The Consultant’s programme shall be provided to the Council in computerised format compatible with Microsoft Project. Within two weeks of the Start Date, the Consultant will attend a meeting with the other specialist advisers and the Council to reconcile the individual programmes of all the specialist advisers and to incorporate these into the consolidated programme.

5.2.8 If required, manage and co-ordinate other specialist advisers.

If required and notified by the Council, the Consultant shall co-ordinate and manage the input and activities of the other specialist advisers where the finance discipline has the lead role. In relation to co-ordination and management duties, the Consultant shall prepare agendas and minutes for any necessary meetings and shall be responsible for ensuring all resultant action points arising for all disciplines are noted and progressed.

Where the Consultant employs sub-advisers to assist in the completion of the Commission, the management of such sub-advisers is deemed to be included within the Consultant’s duties.

5.3 Project Development

5.3.1 Develop the extent of new works and facilities management aspects of the Project.

In respect of the production of the Reference Project, the Consultant shall assist the Council and its other specialist advisers in determining the extent of the new works and facilities management service, including the standards to be adopted by the successful

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tenderer in undertaking these functions, to be included in the Project. This will be with a view to ensuring that the Project forms a viable commercial package that will attract sufficient market interest to ensure that the Project provides best value for money.

5.3.2 Assist in promoting the Project.

The Consultant shall assist the Council and its other specialist advisers as necessary in establishing the interest of the private sector in the Project. To this end the Consultant shall attend any briefing sessions, interviews or bidders conferences as may be deemed necessary to promote the Project and be prepared to assist the Council in answering any relevant financial questions from interested parties.

5.3.3 Project cost estimates.

The Consultant shall assist the Council in the preparation of estimates of Project promotion, works & operations and maintenance costs for the preferred accommodation and facilities configuration (to be determined following a public consultation exercise), both for a publicly procured scheme and a PPP scheme.

5.3.4 VAT and taxation advice.

The Consultant shall provide the Council and its other specialist advisers with any necessary Vat and tax treatment advice as pertains to the Project to ensure that the Project is progressed in the most tax efficient manner.

5.3.5 Funding issues and financial structure.

The Consultant shall advise on the most appropriate funding mechanisms and financial structure for the Project, reflecting the risks and objectives specific to the Project, to ensure that the Council secures the optimum allocation of risk at the lowest cost. In progressing this item, the Consultant shall provide appropriate financial advice in relation to PPP projects generally and schools PPP projects specifically.

5.3.6 General financial advice in connection with the Project.

The Consultant shall provide such general financial advice as is required by the Council or its other specialist advisers pertaining to the Project. It is envisaged that this will cover Project areas such as contract terms & conditions, TUPE & employment issues, planning issues, property issues (including leasing and asset disposal) and operation / facilities management issues, although this list is not intended to be exhaustive.

5.3.7 Assist with consultations.

The Consultant will assist the Council and its other specialist advisers, with the consultation process with all relevant bodies / interested parties (statutory and non- statutory). This will include attendance at meetings / hearings / negotiations as required, assisting the Council to mitigate or remove any objections to the Project.

5.3.8 Assist with development of contract control mechanisms

The Consultant shall assist the Council and its other specialist advisers in developing procedures for the control of the Project tendering and contract documentation.

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5.4 Economic Assessment and Justification

5.4.1 Prepare risk assessments and matrices.

The Consultant shall assist the Council with the quantification and determination of the relative weighting of the financial impact of the risks associated with the Project. The Consultant shall be responsible for undertaking a continuous assessment of these risks and for recommending which party to the Project Agreement is best placed to manage these risks. The Consultant shall further be responsible for reporting the on-going assessment to appropriate progress meetings and shall prepare a risk assessment and allocation report prior to the commencement of the tender process.

Throughout the Commission the Consultant shall liaise with the Council and its other specialist advisers, including participation in risk workshops, to determine the optimal risk transfer scenario.

5.4.2 Value for money.

Within six weeks of the Start Date of commencing the Commission the Consultant shall attend a value for money workshop with the Council and its other specialist advisers. The objective of this workshop will be to determine which Project options offer the Council the best value for money.

Prior to the issue of the Invitation to Negotiate, the Consultant will attend a further workshop to confirm that any decisions taken during the period since the initial workshop, result in a Project which continues to provide the Council with the best value for money.

The Consultant shall, during the remainder of the Commission, undertake further value for money assessments as required.

5.4.3 Financial aspects of Best Value.

The Consultant shall provide the Council and its other specialist advisers with any relevant advice relating to the financial aspects of Best Value as pertaining to the Project.

5.4.4 Affordability issues.

The Consultant shall consider at all stages of the Commission the affordability issues to be addressed by the Council in the delivery of the Project. Where affordability is identified as a problem, the Consultant shall offer advice on practical solutions and alternative means to mitigate the problem (including any relevant external funding that may be available), allowing timeous progression of the Project.

5.4.5 Advise on risk transfer and “off balance sheet” status.

The Consultant shall provide advice, with reference to HM Treasury guidance, FRS 5 and SSAP 21, regarding the treatment of risks and assets, to assist the Council in demonstrating that the Project is “off balance sheet” from the Council’s perspective. In undertaking this task the Consultant shall consider the overall scope and risk allocation of the Project (utilising the risk assessments and matrices per paragraph 5.4.1). In addition it may become necessary under the terms of this Commission for the Consultant to attend meetings between the Council and their external auditor.

5.4.6 Prepare reports on accounting treatment matters.

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The Consultant shall provide the Council with reports covering qualitative and quantitative assessments of any accounting treatment matters as pertain to the Project. Such reports will contain an evaluation of all proposed courses of action and shall recommend which is most advantageous to the Council and the progress of the Project.

5.4.7 Advise and assist in the review and development of all potential models / structures for delivery of the Project.

The Consultant shall provide the Council with advice and assistance in reviewing and developing the most appropriate model / structure for the delivery of the Project. Such advice shall cover specifically, but not exclusively, traditional Design Build Finance Operate (DBFO) and Non Profit Distributing Organisation (NPDO) models.

5.4.8 Financial evaluation of the Project.

Prior to the Invitation To Negotiate, the Consultant shall assist the Council with and provide relevant input to the production of a Revised Outline Business Case by undertaking a financial evaluation of the Project, including preparation of any necessary financial models (e.g. shadow model including Unitary Charge estimates) (see paragraph 5.5.4 for details of the Council’s computer software versions), preparation of a Public Sector Comparator (PSC) and proposals for payment mechanisms / structures. Preparation of the PSC shall be deemed to include provision to the Council of advice and assistance in respect of the optimism bias assessment.

5.4.9 Treatment of assets.

It is envisaged that the Project will require the transfer and disposal of some of the Council’s assets (both at the start and the end of the Concession period). The Consultant shall provide advice to the Council on the options available for the most suitable means of dealing with such assets both from an accounting treatment perspective and to ensure that the Council achieves the most financially advantageous position from its asset transactions.

5.4.10 Assist in the production of documentation for submission to the Scottish Executive.

The Consultant shall assist the Council and its other specialist advisers, in the preparation of all necessary documentation for any submissions requested by the Scottish Executive. These stages shall include the Key Stage Review(s), Revised Business Case and Final Business Case. The Consultant shall attend such meetings as deemed necessary by the Council in connection with Scottish Executive submissions.

In addition the Consultant shall assist where necessary in the interpretation of any updates and advice issued by the Scottish Executive as pertains to the Project.

5.5 Project procurement and the tendering process

5.5.1 Provide general advice on the procurement process and timetable.

The Consultant shall provide the Council and its other specialist advisers with any relevant advice from the finance perspective as relates to all aspects of the procurement process and timetable, including the achievability of that timetable.

5.5.2 Assist in the preparation of pre-qualification documents.

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The Consultant shall assist in the preparation of the pre-qualification documents and the pre-qualification evaluation criteria. The Consultant shall in this capacity identify the base criteria below which an application will automatically be rejected.

5.5.3 Undertake the pre-qualification financial evaluation.

The Consultant shall undertake the evaluation of the financial and economic aspects of all pre-qualification submissions, including identification and reporting of any areas of non-compliance of the submissions and attendance at any necessary pre-qualification interviews. The Consultant shall conclude the evaluation by making recommendations from a financial perspective as to which bidders should be invited to tender.

5.5.4 Assist in the preparation of contract documents.

The contract documents shall be drafted by the Legal Adviser, taking account of contributions drafted by the other specialist advisers and having due regard to the Council’s Standing Orders and Financial Regulations.

The Consultant shall assist in the drafting of the financial sections of the contract documentation, including any additional documentation that may be required. The contract documents shall include but shall not be limited to: OJEC notice; Instructions for Tendering; Form of Agreement; Form of Tender; Conditions of Contract; and the Project Agreement. At each stage the Consultant shall assist the Council with response to any financial queries which may arise.

In addition the Consultant shall assist in the development of post contract award monitoring systems that the Council should implement to ensure that the construction and facilities management aspects of the contract operate as intended and with the development of the handover criteria for the condition of the Project assets at the conclusion of the Project.

All documentation shall be supplied in computerised format that is wholly compatible with the Council’s in-house systems. The Council’s general office/document system is Microsoft Office 2000, including Microsoft Project. Any specialised systems such as plan drawing shall be as notified by the Council to the Consultant.

5.5.5 Assist in the preparation of the Project Specification and Invitation to Negotiate / Tender documentation.

The Consultant shall assist with the preparation of the Project Specification and Invitation to Negotiate / Tender documentation with specific reference to the financial issues.

The Consultant shall prepare the financial criteria to be utilised in the assessment of the tenders received and shall assist the other specialist advisers in determining other criteria against which the tenders will be assessed. In this capacity, the Consultant shall identify the base criteria below which a tender will be considered unacceptable.

5.5.6 Attend meetings with tenderers.

During the tender period, the Consultant will be required to attend meetings with tenderers and shall assist the Council in answering financial questions raised by the tenderers. If required by the Council the Consultant shall be responsible for taking and distributing minutes of such meetings and shall assist with any redrafting of the contract documentation required as a result of such meetings.

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5.5.7 Tender evaluation.

The Consultant will be responsible for undertaking a full financial evaluation of all tenders received (including any variant proposals).

The Consultant shall prepare an evaluation report (including a review of the commercial aspects of the tenders and drafting of financial sections) for submission to the Council within three weeks from the date of receipt of the tenders. The report will include a recommendation to the Council on which tender best meets the Council’s objectives for the project and is most economically advantageous to the Council.

5.5.8 Best and Final Offer (BaFO) tendering stage.

Should a BaFO stage be considered necessary within the tendering process, the Consultant shall provide advice and input to the process in line with that expected (and detailed above) for the main tendering stage.

5.5.9 Selection of Preferred Bidders.

The Consultant shall assist the Council in the evaluation and selection process for determining the Preferred Bidder and the Reserve Preferred Bidder for the Project.

5.5.10 Assess and provide advice in respect of issues arising from the bidder’s proposed financing structure.

Notwithstanding the detail at paragraph 5.5.7, the Consultant shall assess any issues which may arise from the funding structure that the Service Company are proposing to adopt (including the reasonableness of the proposed rates of return) and shall provide the Council with advice and evaluations of any such issues identified.

5.5.11 Final negotiations with Preferred Bidder.

The Consultant shall assist the Council in all negotiations, including attendance at all negotiation meetings, with the Preferred Bidder (and if necessary the Reserve Preferred Bidder and the bidders’ funding partners) to secure the best Project position for the Council. As necessary during the negotiation phase, the Consultant shall reassess the financial evaluation of the tender in light of emerging information and shall advise on the impacts for the Council of any courses of action being considered.

5.5.12 Assist with the process to financial close.

The Consultant will assist the Council and its other specialist advisers in the preparation of a comprehensive and final version of the contract documents, taking account of all negotiations with the Preferred Bidder, with a view to achieving financial close at the earliest opportunity.

5.5.13 Attend debriefing meetings with unsuccessful tenderers.

The Consultant will attend any necessary debriefing meetings, contributing constructively to the debriefing of unsuccessful tenderers, including the Reserve Preferred Bidder following financial close.

5.5.14 Attend debriefing meetings with the Council and other specialist advisers.

The Consultant will be required to attend debriefing meetings with the Council and its other specialist advisers to contribute constructively to a review of the procurement and

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contract management procedures during the period to financial close. Such a review will be expected to identify any deficiencies in the procedures followed and to propose improvements should a similar project be considered by the Council in the future.

5.6 General

5.6.1 Liaise with the Council and its other specialist advisers.

The Consultant shall liaise with the Council and its other specialist advisers as required (see also paragraph 5.2.1) and shall at all times act in the best interests of the Council with respect to achieving the objectives of the Project in the most financially advantageous manner. It shall be the responsibility of the Consultant to ensure that the comments and requirements of the Council are incorporated into all appropriate documentation prepared by the Consultant.

5.6.2 Other general financial advice.

The Consultant shall provide any other general financial advice as may be required, to the Council and its other specialist advisers, pertinent to the Project and which could reasonably be expected to be required for a PPP of the nature of the Project.

C14

ANGUS COUNCIL

Forfar/Carnoustie Schools Project

Phase 2 Consultancy Services - Project Development and Procurement

Financial Advisers

Tender Documents – Part D

Appendices

Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

CONTENTS Page(s)

Appendix One – Form of Offer D2- 10

Schedule 1 - Basic Fee Lump Sums Schedule 2 - Additional Fee Daily Rates Schedule 3 - Checklist of Tender Submission Items

Appendix Two – Certificate of Non-Collusive Tendering D11

Appendix Three – Approval Documentation D12

 Annex 1 - Approval of Change to Project D13 Brief  Annex 2 - Approval of Sub-Consultants and D14 Specialists  Annex 3 - Approval of Reimbursable D15 Expenses

Appendix Four – Form of Agreement D16-17

Appendix Five – Project Master Programme D18

Appendix Six – List of Reference Documents D19

Appendix Seven – Qualification Application form D20-42

Appendix Eight - Project Structure Diagram D43

Appendix Nine – Tenderer Query Form D44-45

D1 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Appendix No 1 Form of Offer

Director of Law & Administration Angus Council St James House St James Road FORFAR DD8 2ZE

Dear Madam

Forfar/Carnoustie Schools Project Phase 2 Consultancy Services - Project Development and Procurement Financial Advisers Contract

I/we hereby confirm that I/we have examined the Tender Documents incorporating the Instructions for Tendering, the Conditions of Engagement, the Brief and the Appendices annexed thereto and are fully satisfied as to my/our abilities and experience in all respects to fulfill all the requirements of the Commission.

I/we hereby offer to undertake the above Commission for Angus Council in accordance with the terms and conditions contained in the said Tender Documents. Annexes for such sums as are specified in Schedule No 1 annexed to this Offer of Tender and such rates as are specified in Schedule No 2 Table A annexed to this Offer of Tender subject to arithmetical verification thereof.

I/we confirm that this offer is open for acceptance for the period of 90 days from the date of Tender Return, namely Monday 13 October 2003.

Where this Offer is made as part of a consortium I/we confirm that all members of the consortium hereby submit a single joint offer as part of a unitary whole and that all constituent members of the consortium, if successful, will be liable for performance of the Commission jointly and severally.

I/we certify that this is a bona fide offer.

Signed Date

Authorised Signatory

Full Name

Position

For and on behalf of (bidder’s name)* Company Number (where applicable) Address

Phone Fax e-mail

(continued over)

D2 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Is this offer part of a consortium bid? Yes/No* * If YES, give (a) Name of Consortium

(b) name(s) of other member(s)

and (c) counter-signatory - Name

- Position

- Signature

* Ensure that the correct legal name of the bidder is specified. See Instructions for Tendering paragraph 2.28

** Delete as inapplicable . Note that an offer form with supporting documents must be counter-signed by each member of the consortium. See paragraph 2.2 of the Instructions for Tendering.

D3 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Schedule No 1 to Form of Offer Forfar/Carnoustie Schools Project Commission for Financial Advisers Contract

Tender Estimate: Part A – Totals Excluding Indexation

Project Manager Project Partner Junior Associate Accountant Senior Accountant Technician - Partner/Director Brief Reference Work Person Sum No Package Hours £ 5.2 Commission Management

5.2.1 Appoint a Representative

5.2.2 Administer a quality management system

5.2.3 Review the Project Master timetable

5.2.4 Review the Project development work to date

5.2.5 Maintain Project control documentation

5.2.6 Attend meetings etc

5.2.7 Financial and programme monitoring and control

5.2.8 If required, manage and co-ordinate other specialist advisers

5.3 Project Development

5.3.1 Assist with developing the extent of the new works, etc.

5.3.2 Assist in promoting the Project

5.3.3 Project cost estimates

5.3.4 VAT and taxation advice

5.3.5 Funding issues and financial structure

General financial advice with the Project 5.3.6 Assist with consultations

5.3.7 Assist with development of contract control 5.3.8 Totals Carried Forward

D4 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Totals Brought Down 5.4 Economic Assessment and Justification

5.4.1 Prepare risk assessments and matrices

5.4.2 Value for money

5.4.3 Financial aspects of Best Value

5.4.4 Affordability Issues

5.4.5 Risk Transfer and "Off Balance Sheet"

5.4.6 Report on Accounting Treatment

5.4.7 Review and development of models for delivery etc.

5.4.8 Financial evaluation

5.4.9 Treatment of Assets

5.4.10 Documentation for Scottish Executive

5.5 Project Procurement and Tendering Process

5.5.1 Procurement/timetable general advice

5.5.2 Pre-qualification documents

5.5.3 Pre-qualification evaluation

5.5.4 Assist in preparation of contract documents

5.5.5 Assist in preparation of Project specification/ITN

5.5.6 Attend meetings with Tenderers

5.5.7 Tender evaluation

5.5.8 BaFO

5.5.9 Advice on bidders proposed financing structure etc.

5.5.10 Selection of Preferred Bidder

5.5.11 Final negotiations with Preferred Bidder

5.5.12 Assist with process to financial close

5.5.13 Attend debriefing meetings with unsuccessful tenderers

5.5.14 Attend debriefing meetings with Council/other specialist advisers Totals Carried Forward Totals Brought Down

D5 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

5.6 General

5.6.1 Liaise with Council and other specialist advisers

5.6.2 Other general financial advice

Total Person Hours Total Estimate Sum £ Add: VAT @ 17.5% £ Total Estimate Sum incl VAT £

D6 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Tender Estimate: Part B – Split of Part A Total Estimate Sum by Financial Year including Indexation but excluding VAT

Financial Period Brief Estimated Sum for Assumed Year No. Reference Financial Year Indexation Nos. (£) % Sum (£)

« No » « Date from/to » « Nos » « Amount » « % » « Amount »

Totals

Signed______Date ______

For and on behalf of ______

D7 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Schedule No 2 to Form of Offer

Forfar/Carnoustie Schools Project Commission for Financial Advisers Contract

Table A – Hourly Rates

Staff Grade Office Site Net Daily Time/ Incl. VAT @ Net Daily Time/ Incl. VAT @ Cost Charge 17½% Cost Charge 17½% Partner/Director £ £ Project Manager £ £ Junior Partner £ £ Associate £ £ Senior Accountant £ £ Accountant £ £ Technician £ £

Table B – Financial Adviser’s Estimate of Person Days Input required and Estimated Fees on Additional Tasks not identified in Brief

Project Manager Project Partner Junior Associate Accountant Senior Accountant Technician Partner/Director Estimated Description of Additional Task Person Sum (excl. (not set out in Brief) Days VAT) £

Totals carried forward

D8 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Table B (continued) Totals brought down

Totals

D9 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Forfar/Carnoustie Schools Project Financial Advisers

Schedule No 3 to Form of Offer

Checklist and Tender Submission Form A. Form of Tender Offer and Schedules Submitted

B. Qualification Application Form (or incorporation by reference) Submitted

C. Supporting Documents for Qualification Application Form with Listing Submitted

D. Supporting Methodology and Quality Statement Submitted

E. Certificates

1. Non-Collusive Tendering (Appendix No. 2)

Submitted

F. Variant Tender Supporting Information (Variant Tenders only) Submitted

The Tenderer certifies that:

(a) the completeness of the Tender has been checked and verified in accordance with thie Form; and

(b) no unauthorised alterations to the Tender Documents have been made to the Tenderer other than by way of due and effective completion of submitted forms as required by their terms or, in the case of Variant Tenders, the only such alterations as are identified in the comprehensive list of qualifications submitted with the Variant Tender.

Signed ______Date ______

For and behalf of ______

D10 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Appendix No 2 Certificate of Non-Collusive Tendering

Forfar/Carnoustie Schools Project Financial Advisers

CERTIFICATE OF NON-COLLUSIVE TENDERING

1. We certify to Angus Council that this tender is made in good faith, and that we have not fixed or adjusted the amount of the tender by or under or in accordance with any agreement or arrangement with any other person. We also certify that we have not and we undertake that we will not before award of any contract for the Commission:

(i) (a) communicate to any person other than the Council or a person duly authorised by them in that behalf the amount or approximate amount of the Tender or proposed Tender, except where the disclosure, in confidence, of the approximate amount of the Tender was necessary to insurance premium quotations required for the preparation of the Tender;

(b) enter into any agreement or arrangement with any person that they shall refrain from tendering, that they shall withdraw any Tender once offered or vary the amount of any Tender to be submitted;

(ii) Pay, give or offer to pay or give any sum of money or other valuable consideration directly or indirectly to any person for doing or having done or causing or having to be done in relation to any other Tender or proposed Tender for the Commission, any act or thing of the sort described at (i)(a) or (b) above.

2. We further certify that the principles described in paragraph 1(i) and (ii) above have been, or will be, brought to the attention of all Sub-Consultants providing services or materials connected with the tender and any contract entered into with such Sub-Consultants will be made on the basis of compliance with the above principles by all parties.

3. In this certificate, the word “person” includes any persons and any body or association, corporate or unincorporate; “any agreement or arrangement” includes any transaction, formal or informal and whether legally binding or not; and “the Commission” means the Commission in relation to which this Tender is made.

Signature ______

Full Name______

Status in Organisation______

Duly authorised to sign tenders and Non-Collusive Tendering Certificate for and on behalf of:

Tenderer Name ______

Postal Address ______

D11 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Appendix No 3

Approval Documentation

Annex 1 - Approval of Change to Project Brief Annex 2 - Approval of Sub-Consultants and Specialists Annex 3 - Approval of Reimbursable Expenses

D12 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Appendix Three ANNEX 1

Approval Documentation Approval by the Council of Change to Project Brief

Forfar/Carnoustie Schools Project; Name of Consultant: …………………………………………..

Approval by the Council of Change to Project Brief

Approval Number ………………

The following amendment to the Project Brief is recommended:

The reason for this recommended amendment is:

The cost decrease/increase of this recommended amendment is:

The related instruction reference is: ……………………………

Recommended by: ………………………………………………. Signature

the Consultant ……………………………………………………. Date

Approval given: …………………………………..………………. Signature

on behalf of the ………..…………………………………………. Date Council

The approval to change the Project Brief shall only be given by the Council’s Project Manager or more senior officer of the Council. The confirmation of the amendment shall only be made by the Consultant’s lead officer for the Project or other authorised signatories as verified to the Council at or prior to the commencement of the Commission or their substitutes as notified to the Council from time to time in accordance with the Conditions of Engagement.

D13 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Appendix Three ANNEX 2

Approval Documentation Approval by the Council of Sub-Consultants and Specialists

Forfar/Carnoustie Schools Project; Name of Consultant: …………………………………………..

Approval by the Council of Sub-Consultants and Specialists

Approval Number ………………

The Adviser wishes to employ Sub-Consultants and/or Specialists for the following function:

The following Sub-Consultant/Specialist is proposed:

The reason for this proposal is:

The cost decrease/increase of this proposal is: ……………………………

The related instruction reference is: …………………………………………

Recommended by: ………………………………………………. Signature

the Adviser ……………..…………………………………………. Date

Approval given: …………………………………..………………. Signature

on behalf of the ………..…………………………………………. Date Council

The approval to appoint Sub-Consultants or specialists shall only be given by the Council’s Project Manager or more senior officer of the Council. The confirmation of the amendment shall only be made by the Consultant’s lead officer for the Project or other authorised signatories as verified to the Council at or prior to the commencement of the Commission or their substitutes as notified to the Council from time to time in accordance with the Conditions of Engagement.

D14 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Appendix Three ANNEX 3

Approval Documentation Approval of Reimbursable Expenses

Forfar/Carnoustie Schools Project; Name of Consultant: …………………………………………..

Approval of Reimbursable Expenses

Approval Number ………………

The following reimbursable expense is anticipated to be increased;

The reason for the expenditure is:

The related instruction reference is: ……………………………

Recommended by: ………………………………………………. Signature

the Adviser …………..……………………………………………. Date

Approval given: …………………………………..………………. Signature

on behalf of the ………..…………………………………………. Date Council

The approval of reimbursable expenses shall only be given by the Council’s Project Manager or more senior officer of the Council. The confirmation of the amendment shall only be made by the Consultant’s lead officer for the Project or other authorised signatories as verified to the Council at or prior to the commencement of the Commission or their substitutes as notified to the Council from time to time in accordance with the Conditions of Engagement.

D15 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Appendix No 4 Form of Agreement

It is hereby agreed between ANGUS COUNCIL (hereinafter called “the Council”) of the one part and , having their Registered Office at (hereinafter called “the Consultant”) of the other part as follows:- WHEREAS the Council is desirous that certain Services be performed and executed viz:- Phase 2 Consultancy Services - Project Development and Procurement (“The Stage 2 Commission”) (hereinafter referred to as “the Contract”) and has accepted a Tender by the Consultant for the performance and execution of such Services NOW THIS AGREEMENT WITNESSETH as follows:- 1. In this Agreement words and expressions shall have the same meanings as are respectively assigned to them in the Conditions of Engagement hereinafter referred to. 2. The Contract Documents shall comprise:- (a) The Conditions of Engagement (Part B of the Tender Documents) (b) The Brief (Part C of the Tender Documents) (c) Appendices to Tender Documents (Part D of the Tender Documents) (d) The Supporting Information submitted by the Consultant in accordance with the provisions of the Instructions for Tendering (e) The letter from the Council to the Consultant dated (the Letter of Appointment) 3. In consideration of the payments to be made by the Council to the Consultant as hereinafter mentioned the Consultant hereby covenants with the Council to perform and execute the Services in conformity in all respects with the provisions of the Contract Documents. 4. The Council hereby covenants to pay to the Consultant in consideration of the performance and execution of the Services the fees at the times and in the manner prescribed by the Contract Documents.

D16 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

5. This Agreement shall be construed and the rights of the Council and the Consultant and all matters arising hereunder shall be determined according to the Law of Scotland

IN WITNESS WHEREOF these presents are subscribed for and on behalf of Angus Council at Forfar on the day of in the year Two Thousand and Three.

………………………………..For and on behalf of Angus Council …………………………………Witness

…………………………………..Name in block capitals

………………………………….Address

………………………………….

These presents are subscribed for and on behalf of the Consultant at on the day of in the year Two Thousand and Three.

…………………………………For and on behalf of the Consultant

…………………………………..Witness

…………………………………..Name in block capitals

…………………………………...Address

…………………………………..

D17 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Appendix No 5 Project Master Programme

FORFAR/CARNOUSTIE SCHOOLS PROJECT

INDICATIVE PROJECT MASTER PROGRAMME

Key Milestone Period Start Date Finish Date 1. Confirmation of Scottish Executive - April 2003 April 2003 Support/AC decide to proceed

2. Undertake public consultation with 4 months June 2003 September 2003 stakeholders e.g. staff, parents, (thereafter ongoing) wider community

3. Appointment of External Advisers 5 months June 2003 December 2003

4. PIN Notice - September 2003 September 2003

5. Revised Business Case 5 months August 2003 January 2004

6. Develop Reference Project and 7 months August 2003 February 2003 Output Specification

7. Identify Forfar New School site 6 months July 2003 December 2003

8. OJEC Contract Advertisement - February 2004 February 2004

9. Pre-Qualification Selection Process 3 months March 2004 May 2004 to selection of short list

10. Key Stage Review 1 month May 2004 May 2004

11. Prepare ITN documents 3 months February 2004 May 2004

12. Issue Invitation to Negotiate (ITN) - June 2004 June 2004

13. ITN bid return period 5 months June 2004 October 2004

14. Tender Evaluation 3 months November 2004 January 2005

15. Key Stage Review 1 month January 2005 February 2005

16. Select Preferred Bidder - February 2005 February 2005

17. Negotiate with preferred Bidder to 5 months March 2005 July 2005 secure planning/statutory orders

18. Submit final Business Case 1 month July 2005 August 2005

19. Contract Award and Financial Close - August 2005 August 2005

20. PFI Contractor Mobilisation 3 months September 2005 November 2005

21. Construction Period 27 months December 2005 March 2008

D18 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Appendix No 6 List of Reference Documents

1. Angus Council Financial Regulations dated April 2003.

2. Outline Business Case “Further Towards a Shared Vision” (public version) dated December 2002. [Note: The reference documents referred to therein are themselves also available for Tenderer’s inspection.]

3. Scottish Executive Education Department Indicative Offer of Financial Support; letter dated 31st March 2003.

Note: Electronic versions of documents 1 and 2 (text only) are available. Please contact the Council’s Liaison Officer as referred to in the Instructions for Tendering.

D19 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

ANGUS COUNCIL

FORFAR/CARNOUSTIE SCHOOLS PROJECT

Financial Advisers Contract

QUALIFICATION APPLICATION FORM

D20 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

COMMERCIAL IN CONFIDENCE

QUALIFICATION APPLICATION FORM

Organisation’s Name: ______

Address: ______

______

______

Contact Name: ______Tel No: ______(incl STD code) e-mail address ______Fax No: ______(incl STD code)

A INFORMATION ON ORGANISATION

A.1 Is the organisation (tick appropriate box):

(a) a sole trader

(b) a partnership

(c) a private limited company

(d) a public limited company

(e) a consortium

(e) other (please provide details.)

A.2 (i) List the full name of every Director, Partner, Associate and Company Secretary within the organisation (for large companies the information contained in the Annual Report, which is required in C5 below will suffice).

(ii) Where the organisation is a consortium, list the full legal name and address of every member of the consortium and provide the information sought in the rest of this application form for each of those listed members.

D21 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

A.3 Where the organisation is a partnership constituted under Scots Law, has the organisation granted a trust deed or become otherwise apparently insolvent or is the subject of a petition presented for sequestration of its estate? (If so, please give details.)

A.4 Has any Director, Partner or Associate in your organisation been involved in any firm or company which has been liquidated or gone into receivership or has been apparently insolvent? (If so, please give details.)

A.5 Is/has any Director, Partner or Associate currently an employee/been an employee of Angus Council, or any of its predecessors (Angus District Council, City of Dundee District Council and Tayside Regional Council)? (If so, please give details.)

A.6 Is/has any Director, Partner or Associate currently a Councillor/been a Councillor with Angus Council, or any of its predecessors (Angus District Council, City of Dundee District Council and Tayside Regional Council)? (If so, please give details.)

A.7 Please state if any Director, Partner or Associate (or person of similar status) has a relative(s) who is a Councillor or an Officer with Angus Council.

A.8 Is any Director, Partner, Associate or Company Secretary in your organisation involved in any other firm or company?

Tick as appropriate YES (If yes, please give details: name of firm/ NO company, registered office, name of individual, position.)

A.9 Has the organisation:-

(i) been convicted of a criminal offence relating to the conduct of its business?

Tick as appropriate YES (If yes, please give details: date and nature of NO offence, date of conviction, name and address of convicting court, sentence.)

(ii) committed an act of grave misconduct in the course of its business? D22 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Tick as appropriate YES (If yes, please give details: date, nature, NO outcome.)

(iii) not fulfilled obligations relating to the payment of social security contributions under the law of any part of the United Kingdom or of the relevant State in which the service provider is established?

Tick as appropriate YES (If yes, please give details: date, nature, sum, NO outcome.)

(iv) not fulfilled obligations relating to the payment of taxes under the law of any part of the United Kingdom?

Tick as appropriate YES (If yes, please give details: date, nature, sum, NO outcome.)

Where the organisation is either a limited company under the Companies Act 1985, a friendly society under the Industrial and Provident Societies Acts 1965 to 1978 or a limited liability partnership under the Limited Liability Partnerships Act 2000, please complete questions A10-13. Otherwise, state “N/A”.

A.10 Please state the organisation’s date of registration, registered office and registered number.

A.11 Please enclose a copy of the Certificate of Incorporation/Registration of the organisation and any certificate of change of name.

Tick if enclosed

A.12 Has the organisation passed a resolution or is it the subject of an Order by the Court for its winding up otherwise than for the purposes of bona fide reconstruction or amalgamation or has it had a receiver, manager or administrator on behalf of a creditor appointed in respect of its business or any part thereof or is it the subject of proceedings by any of the above procedures or the subject of similar procedures under the law of any other State?

Tick as appropriate YES (If yes, please give details and attach copy NO resolution/order etc.)

Tick is resolution/order etc. enclosed

A.13 List the full names and registration numbers of all associated companies, and specify whether each is a subsidiary, parent or holding company.

D23 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

B ABILITY/TECHNICAL CAPACITY OF ORGANISATION

B.1 Please confirm that your organisation is prepared to tender YES for the whole of the contract.

B.2 a Has your organisation suffered a deduction for liquidated and ascertained damages in respect of any contract for the provision of services within the last 3 years?

Tick as appropriate YES (If yes, please give details including name and NO address of employer, date, amount, reason given by employer.)

b Has your organisation ever had such a contract terminated or determined prematurely within the last 3 years?

Tick as appropriate YES (If yes, please give details including name and NO address of employer, date, reason given by employer.)

c Has your organisation withdrawn from such a contract prematurely within the last 3 years?

Tick as appropriate YES (If yes, please give details including name and NO address of employer, date, reason given by your organisation.)

d Has your organisation ever not had such a contract renewed for failure to perform to the terms of a contract?

Tick as appropriate YES (If yes, please give details including name and NO address of employer, date, reason given by employer.)

D24 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

e Is there any significant claim or litigation outstanding which could affect your organisation?

Tick as appropriate YES (If yes, please give details, including other NO party(ies), sum, forum, stage of process.)

B.3 Is your organisation registered with any regulatory bodies? Please also list any Employer’s Organisation and/or Professional Associations to which your organisation belongs.

Tick as appropriate YES (If yes, please give details – name, address, registration no. if any) NO

B.4 How many employees are employed by your organisation?

Type of Number Employee of employees Management

Professional/ technical Admin/clerical

B.5 How many of your organisation's employees would be involved: (a) as principals and (b) in terms of support/cover, only if required in the provision of the services under this contract?

(a) Principal Staff (b) Support/Cover Staff Type of Number of Type of Number of Employee employees Employee Employees Management Management

Professional/ Professional/ Technical Technical Admin/Clerical Admin/Clerical

D25 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

B.6 Please list in the tables following the staff referred to at answer B.5 including names, job titles, professional qualifications, proposed role in contract and relevant experience.

(a) Principal Staff (Core Team)

Name JobTitle/Length Professional Role in Relevant Experience of Time With Qualifications Contract (Note 2) Tenderer (including dates) (Note 1)

(NB) You may use additional sheets if necessary but please mark clearly with reference to Questions B.6(a) of your organisation’s application form.

Note 1: State in particular (i) name of lead officer role and (ii) any specialisms, for lead officer, confirm authority to bind the Tenderer during the Commission.

Note 2: Particularly identify PPP experience generally and schools PPP experience specifically.

D26 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

(b) Support/Cover Staff

Name JobTitle Professional Role in Relevant Experience Qualifications Contract

(NB) You may use additional sheets if necessary but please mark clearly with reference to Questions B.6(b) of your organisation’s application form.

D27 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

B.7 Would your organisation wish to sub-contract any part of this contract to another contractor?

Tick as appropriate YES NO

If yes, please list as below:

Name(s) and Address(es) Trade/Contract Element Estimated Contract Proportion (% or value)

Note: Please fully complete and submit a separate Pre-Qualification form for every proposed sub- contract.

B.8 In question B.8(a) to this application (see table following), please list and describe all current work being currently undertaken or expected to be undertaken within the anticipated commission period for this contract by the principal staff who would be involved in the provision of the services under this contract, i.e. those referred to/listed in responses B.5(a) and B.6(a). For this purpose, please disregard only those work items which are of no material consequence to the workload of the team.

At B.8(b), please provide details of how the Tenderer surpasses each of the minimum ability standards stipulated in the Instructions for Tendering (Part A of the Tender Documents) dealing with each stipulated ability standard separately.

D28 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

B.8(a) TECHNICAL CAPACITY

Please list all work being undertaken or expected to be undertaken by the team identified at B.5 and B. 6 of this form within the anticipated commission period for this contract .

PROJECT TITLE PROJECT PERIOD PROJECT DESCRIPTIONAND DATE (OR EXPECTED VALUE (£) APPORTIONMENT OF EXPECTED DATE) DATE OF WORK UNDERTAKEN OF COMPLETION BY TEAM PROJECTCOMME NCEMENT

1

2

3

4

5 6

7

8

9

10

11

(NB: You may use additional sheets if necessary, but please mark clearly with reference to Question B8 of your organisation’s application form)

D29 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

B.8(b) ABILITY MINIMUM STANDARDS

(NB: You may use additional sheets if necessary, but please mark clearly with reference to Question B.8(b) of your organisation’s application form)

D30 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

B.9 In question B9 to this application please list in the table following all work/services of a similar nature to those to be provided under the present proposed contract which the team has provided in the last 3 years.

References may be sought by the Council from any or all of the public and private companies, organisations, local authorities and public bodies listed in question B9.

B.9 TECHNICAL REFERENCES

Please list all similar work carried out for other persons which the team has undertaken in the last 3 years, including current work.

NAME AND ADDRESS CONTRACT CONTRACT CONTRACT DESCRIPTION OF WORK DATE OF OF CLIENT/EMPLOYER TITLE PERIOD PRICE (£) UNDERTAKEN; STATE IF PFI OR CONTRACT INCL. CONTRACT PPP SCHOOLS PROJECT; COMMENCEMENT SUPERVISORS/CLIENT OTHERWISE STATE RELEVANCE CONTRACT NAME TO THIS PROJECT; TENDERER'S LEAD OFFICER ON CONTRACT

1

2

3

4

5

(NB: You may use additional sheets if necessary, but please mark clearly with reference to Question B9 of your organisation’s application form)

D31 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

B.10 ADDITIONAL TECHNICAL INFORMATION

B.10a Please identify in the table below how your team would fulfil the advice/support requirements identified. Please tick as appropriate.

Requirement Provision by Core Provision by others in Provision through Team your Organisation sub-contractor Taxation Advice Accounting Treatment Advice General Financial Advice Risk Assessment Advice Financial Modelling Assessment of SPV Financial Models Contract Negotiation SPV Structure

B.10b Please identify 2-3 of the key financial problems your team have encountered in previous PPP projects (preferably schools) and the solutions adopted.

Problem Solution

D32D Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

C FINANCIAL INFORMATION

C.1 Name/Position of the person in your organisation primarily responsible for its financial management:

C.2 a Bank’s Name, Address and Telephone No:

______

______

______

______

b Can the Council approach your Bank for a reference on a confidential basis?

Tick as appropriate YES NO

C.3 a Please give the name, address and telephone number of your accountant/independent auditor.

______

______

______

______

b Can the Council approach your accountant/auditor for a reference on a confidential basis?

Tick as appropriate YES NO

C.4 a Is your organisation a member of a group of companies or a subsidiary of another organisation?

Tick as appropriate YES NO

b If the answer to question C.4a is YES, please provide name, registered address and registration number of the organisation’s ultimate parent company.

D33 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Please also:

(i) Provide the information sought in questions C.6 – C.8 for the ultimate parent company; and

(ii) provide a letter from the ultimate parent company confirming whether, if so required by the Council, the ultimate parent company would be prepared to provide a Parent Company Guarantee of your organisation’s obligations under the proposed contract.

Tick if enclosed (if not enclosed, please explain)

C.5 What has been your organisation’s annual turnover/fee income for the last 3 years? (Or from commencement of trading, if shorter)?

Year : ______Turnover £______Fee Income £______

Year : ______Turnover £______Fee Income £______

Year : ______Turnover £______Fee Income £______

C.6 Please enclose copies of audited accounts and annual reports for the last 3 years to include:

 Balance Sheet

 Profit and Loss Accounts and Cost of Sales

 Full notes to the Accounts

 Director’s Report/Auditor’s Report

Tick if enclosed (If not enclosed, please explain)

C.7 If the last set of audited accounts are more than 6 months out of date please submit a certified statement of your present trading position and include management/draft management accounts.

Tick if enclosed (If not enclosed, please explain)

D34 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

C.8 Can you confirm that the company described in those accounts as detailed in C.6 above is still trading?

YES

NO

Please give details of insurance held.

C.9 Employer’s Liability Insurance held

INSURER POLICY NUMBER EXTENT OF COVER INDEMNITY LIMIT (PER CLAIM) EXCESSES/EXCLUSIONS EXPIRY DATE

C.10 Public Liability (Third Party) Insurance held.

INSURER POLICY NUMBER EXTENT OF COVER INDEMNITY LIMIT (PER CLAIM) EXCESSES/EXCLUSIONS EXPIRY DATE

C.11 Professional Indemnity Insurance held.

INSURER POLICY NUMBER EXTENT OF COVER INDEMNITY LIMIT (PER CLAIM) EXCESSES/EXCLUSIONS EXPIRY DATE

D35 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

D EQUAL OPPORTUNITIES

D.1 Is it your policy as an employer not to treat one group of people less favourably than others because of their sex, disability, colour, race, nationality or ethnic origin in relation to decisions to recruit, train or promote employees?

Tick as appropriate YES NO

D.2 Please provide details of any positive measures which your organisation takes to encourage the employment of people with disabilities within your organisation.

Tick if enclosed

D.3 In the last 3 years, has any finding of unlawful discrimination on the grounds of sex, colour, race, nationality, ethnic origin or disability been made against your organisation by any court or industrial tribunal?

Tick as appropriate YES NO

D.4 In the last 3 years, has your organisation been the subject of formal investigation by the Equal Opportunities Commission for Racial Equality or the Disability Rights Commission on grounds of alleged unlawful discrimination?

Tick as appropriate YES NO

If the answer to question D.3 is in the affirmative or, in relation to question D.4, the Commission made a finding adverse to your organisation please answer question D.5.

D.5 What steps did your organisation take in consequence of that finding? Please attach evidence.

D36 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

D.6 Is your organisation’s policy on equality set out -

a in instructions to those concerned with recruitment, training and promotion

Tick as appropriate YES NO

b in documents available to employees, recognised trade unions or other representative groups of employees

Tick as appropriate YES NO

c in recruitment advertisements or other literature

Tick as appropriate YES NO

D.7 Does your organisation observe as far as possible the Commission for Racial Equality’s Code of Practice for Employment, as approved by Parliament in 1983, which gives practical guidance to employers and others on the elimination of racial discrimination and the promotion of equality of opportunity in employment, including the steps that can be taken to encourage members of the ethnic minorities to apply for jobs or take up training opportunities?

Tick as appropriate YES NO

D.8 If the answer to questions D.6 (a), (b), (c) and/or D.7 is yes, then please submit the following: Tick if submitted a a copy of your equal opportunities policy;

b a copy of your report on practice to implement recommendations of the Commission of Racial Equality as required by the Race Relations Act 1976;

c a copy of any relevant instructions to those concerned with recruitment, training and promotion;

d a copy of any relevant document available to employees, trade unions, etc;

e a copy of recent recruitment advertisements.

D37 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

E HUMAN RIGHTS

This section deals with the Human Rights Act 1998, associated legislation and guidance notes.

E.1 Does your organisation have a written policy statement on the 1998 Act?

Tick as appropriate YES NO

If yes, please enclose a copy

E.2 Has your organisation implemented Human Rights compliance audit programme in respect of your organisation and polices?

Tick as appropriate YES NO

E.3 Does your organisation intend to implement such a compliance audit programme in respect of the execution of this contract?

Tick as appropriate YES NO

E.4 Has your organisation consulted with trade unions and employees representatives on Human Rights issues?

Tick as appropriate YES NO

E.5 Does your organisation have a training programme for managers and supervisors in respect of Human Rights issues?

Tick as appropriate YES NO

D38 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

F HEALTH AND SAFETY

This section deals with the Health and Safety at Work etc Act 1974, associated legislation and guidance notes.

F.1 Who is the Director, Partner, Manager or Senior Executive responsible for ensuring that your organisation’s health and safety policy is carried out in practice?

F.2 Does your company employ an Officer responsible for Health and Safety?

Tick as appropriate YES NO

If yes, please give his/her

NAME ______

ADDRESS FOR CORRESPONDENCE ______

______

______

TELEPHONE NO ______

FAX NO ______EMAIL______

F.3 Does your organisation employ Safety Consultants?

Tick as appropriate YES NO

If yes, please give the following information

NAME OF CONSULTANTS ______

ADDRESS FOR CORRESPONDENCE

______

______

______

TELEPHONE NO ______

FAX NO ______EMAIL______

D39 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

F.4 Please enclose a copy of your organisation’s Health and Safety Policy.

Tick if enclosed

F.5 Have any prosecutions, prohibitions or improvement notices been served on your organisation by any Local Authority Department of Environmental Health or by the Health and Safety Executive?

Tick as appropriate YES (If Yes, please enclose details) NO

Tick if enclosed

F.6 Will your organisation permit the Council to examine the organisation’s safety performance record, including type of work undertaken and accident record over the past 3 years?

Tick as appropriate YES NO

D40 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

G GENERAL

G.1 Does your organisation have measures in place to ensure the achievement of quality in respect of work of this nature? (If yes, please give details)

Tick as appropriate YES NO

and

Does your organisation hold a Quality Assurance Certificate issued in respect of BS EN ISO 9001: 2000 for relevant work of this nature? (If yes, please give details)

Tick as appropriate YES NO

G.2 Applicants may be interviewed by the Council. Please supply the names and designations, of those executives of your organisation who will attend such interviews along with a contact name/address/fax no./e-mail, if different from that given at the beginning of this form. Please note that the Council would like to meet as many of the proposed team which would deliver the service under this contract as is feasible.

D41 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

AFTER COMPLETION OF THE APPLICATION FORM, PLEASE READ AND SIGN THE SECTION BELOW

On behalf of the applicant organisation, I certify as follows, namely:

1. That the information supplied in this Application Form and in the Supporting Statement annexed and signed as relative hereto is accurate to the best of my knowledge and understanding and that the applicant organisation accepts the conditions and undertakings in the Application Form. I understand that the provision of false information may result in rejection of this application.

2. That the applicant organisation consents and authorises all third parties from whom references may be sought by Angus Council to disclose information held by that third party to Angus Council for the present purposes.

3. That the Information provided in this form will be used for the purposes of verifying the Applicant's eligibility, financial and economic standing, technical capacity and ability to undertake the kind and value of works referred to in the form. This information may be disclosed by Angus Council to relevant third parties for this purpose and by signing this Application, the Applicant consents to that disclosure and to the holding of that information by Angus Council for as long as is necessary for that purpose.

4. I understand that Angus Council will, in accordance with the Data Protection Act 1998, not use or disclose any personal data provided in this form for purposes other than it was provided for and will not keep such personal data for longer than is required for those purposes.

FULL NAME ______

DESIGNATION ______

FOR AND ON BEHALF OF ______

DATE ______

SIGNATURE ______

To be signed by the applicant. If the applicant is a firm, then a partner should sign in his/her own name and on behalf of the firm and if the applicant is a body corporate an authorised signatory should sign in his/her own name and on behalf of the body corporate.

The Supporting Statement should be attached to this Application Form and should be signed on the final page by the applicant as detailed above.

D42 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Appendix No 8 Project Structure Diagram

Elected Members

(Education Committee, Policy and Resources Committee, full Council or other Committee, as required)

Project Steering Group

Director of Education (Chair)

Director of Finance

Head Teacher, Carnoustie HS

Head Teacher, Forfar PS

Representative from Chief Executive Dept

Director of Law and Admin

Director of Property Services

Director of Planning

Head of Educational Services

Project Manager

Project Director Head of Educational Services .

Scottish Executive Project Team Consultation Internal Resources External Direct Users (SEED and/or FPU) Resources Schools Management Project Manager Legal Teachers/Unions Education Adviser Financial Support services and Architect Technical Facilities Management Bidders Quantity Surveyor Client Users Finance Adviser Parents and Pupils Senior Lenders Legal Adviser Other facilities users Other ad-hoc resources as required

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D43 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Appendix 9 Tenderer Query Form

TENDERER QUERY FORM

To: Mr Gordon Cargill Schools PPP Project Manager Education Department Angus Council County Buildings, Market Street FORFAR DD8 3WE

Tenderer Name:

Tenderer Ref: ______Date Sent: ______

1. Query Type

Technical Financial Procedural

Legal Commercial Other

2. Commercial in Confidence

2.1 Is this query considered to be Commercial in Confidence? YES NO

2.2 If the answer to 2.1 is YES, please state how the response is to be delivered.

Letter Fax E-mail

3. Details of Query

Signed for Tenderer: ______

Name ______

Angus Council Response

D44 Forfar/Carnoustie Schools Project – Financial Advisers Contract Tender Issue - 15 August 2003

Signed for Angus Council ______

Name ______Date ______

AC Use Only

TQ Ref: ______Date Received ______Original to File: ______

Distribution: Proj.Man Finance QS Planning

Proj. Dir. Legal Architect

Other (Specify)______

Response to Project Manager by:

D45