ALEX NICHOLLS Director PROFILE Alex is a Partner at Davis Faulkner Lawyers and co-founder and Director of lawyerbank. He is an experienced commercial lawyer, with a background in top tier private practice as well as in-house government roles. Alex acts for government and private clients on a range of commercial matters including the procurement of goods and services, sale of assets, service agreements and property, construction and finance transactions. Alex understands the framework within which Commonwealth agencies operate and gives commercial, practical and timely advice. Alex also has significant experience acting for Commonwealth agencies in relation to funding agreements and has performed secondment roles in the commercial legal teams of numerous Commonwealth agencies. Having spent a significant amount of time working directly from Commonwealth client offices, Alex is familiar with Commonwealth government processes, and has a breadth of experience in advising on financial management issues, Commonwealth corporate governance and the application of Commonwealth policies. QUALIFICATIONS AND ADMISSION Admitted to Practice ACT Supreme Court 2005 (Unrestricted) Graduate Diploma in Legal Practice, ANU 2005 Bachelor of Laws, ANU 2004 Bachelor of Arts, ANU 2004 EMPLOYMENT HISTORY Partner, Davis Faulkner, Canberra and Yass September 2012 to present Alex joined Davis Faulkner as a Partner in September 2012. Alex currently acts for Commonwealth government agencies, local government bodies and private clients primarily in property acquisitions and sales, commercial and retail leasing, government funding, goods and services procurement and asset sales. Alex also performs secondments for Commonwealth agencies including the Department of Health and the Department of Social Services. Alex provides commercial and strategic advice and works with our clients in order to ensure that they meet their commercial objectives in the context of both legal and policy requirements. Alex presents seminars and conducts legal training for both lawyers and non-lawyers including in relation to contract management, trusts, legal entities and capital works funding. Senior Associate, Minter Ellison Lawyers, Canberra 2006 September 2012 Alex joined Minter Ellison in July 2006 and was appointed as a Senior Associate in December 2009. Alex worked in the commercial, property and infrastructure team for a wide range of government and private clients specialising in leasing, capital works funding, tendering and contracting, acquisitions and disposals and construction. While at Minter Ellison Alex advised numerous public sector clients including the Department of Defence (Defence), the Department of Health, FaHCSIA, Defence Housing Australia, Comcare, the Department of Infrastructure, the Department of Foreign Affairs and Trade (DFAT) and AusAid. Alex also represented a range of private sector clients including Brookfield, Dexus, Amalgamated Holdings Limited, ANZ, the Commonwealth Bank of Australia, Westpac and the University of Canberra.
COMMERCIAL PROJECTS AND EXPERIENCE Agency secondments Department of Health: Alex was seconded to the Department of Health on a part time basis in the Commercial Law Area from March 2015 until September 2015. This role included advising on a broad range of commercial matters including funding agreements, procurement of goods and services, advising on commercial disputes and advising on the application of legislation and Commonwealth policy. Alex was also previously seconded to the Department of Health during the period from December 2012 to September 2013 for 2-3 days per week. Department of Social Services: Alex was seconded to the Department of Social Services on a part time basis in the Commercial and Aged Care Law Branch from 9 December 2014 to 28 February 2015. This role included advising on services agreements, PGPA Act requirements, funding agreements, property and construction issues, intellectual property, licensing agreements and other commercial matters. Department of Social Services: Alex was seconded to the Department of Social Services on a part time basis from April to June 2014 in the Commercial and Aged Care Law Branch. This role included advising on the same types as matters as detailed above. Department of the Environment: Alex was seconded to the Department on a part time basis for 9 weeks from July to September 2011 in a Principal Legal Officer role. This role was a general commercial role and involved providing and clearing advices in relation to: the procurement of goods and services; services agreements; the EPBC Act and other legislation which the Department administers and reviewing and advising on contracts to be entered into by the Department. Alex has also acted on a number of matters for the Department in a virtual secondment role providing advice and reviewing contractual documents on a similar basis. Property and Construction Alex has acted for: Defence in relation to a number of construction related matters including: the ADFA Redevelopment Project, which was a $78m upgrade project for the ADFA base. Extensive risk assessment and Tender and Contract review and development was undertaken to ensure the documents achieved Defence's objectives for clarity and certainty surrounding a complex series of discrete works over a four year timeframe. This project included assisting with PWC approval end ensuring compliance with Commonwealth construction related requirements; 1st Aviation Regiment Upgrade, Darwin, Northern Territory, which involved assisting Defence with the procurement and engagement of a Head Contractor for upgrade works at this Air Force base; and Rockhampton Camp Growl Stage 2, which involved assisting the Department with the procurement of a PM/CA contract, Head Contractor and Design Consultant to undertake upgrade works. Defence in relation to a number of leasing related matters, which have involved extensive drafting and negotiation, including: a lease of Data Centre premises in Sydney. This included the preparation and negotiation of the lease and liaising with the Australian Government Information Management Office (AGIMO) in relation to the same and assisting Defence to obtain all necessary internal Commonwealth approvals for the project; the Development of the Estate Revenue Licence for use by Defence in granting occupation rights in respect of Defence Force bases; Defence Force Recruitment leases from various landlord's in ACT, NSW, Qld, WA, Vic and the NT and the assignment of those leases to Manpower (Australia) Pty Limited; and office leases at 109 Kent Street, Deakin ACT, the Lease for the Office of Director for Military Prosecutions in the ACT and a Lease of 5,000 sqm NLA for the Department at Tuggeranong. DHA on a national basis for the purposes of DHA's owned and leased housing portfolio. Some of the matters in which Alex has assisted DHA are as follows: drafting DHA's pro forma lease by which DHA leases residential properties from Owners throughout Australia. This included advising on DHA's compliance with residential tenancy legislation across Australia; Alex Nicholls Curriculum vitae 2
drafting DHA's pro forma lease by which DHA grants leases to members of the Australian Defence Forces; and assisted to establish a Project Management Agreement between DHA and Investa in respect of the development and subdivision of 1500 residential lots at Muirhead in Darwin. Department of Health in relation to the lease of Scarborough House in Woden ACT for a five year period commencing in June 2015 (with an option to renew for five years) which involved reviewing the leasing proposal, advising on the form of lease, negotiating the terms of lease with the Landlord s solicitor, advising on the application of the PGPA Act to indemnity and limitation of liability clauses and registration requirements. Cancer Australia in relation to its Lease in Sydney for a 5 year period with a 5 year option commencing July 2015 which involved reviewing the leasing proposal, advising on the form of lease, negotiating the terms of lease with the Landlord s solicitor, advising on the application of the PGPA Act to indemnity and limitation of liability clauses and registration requirements. Australian Commission on Safety and Quality in Health Care in relation to the Sublease of its office in in Sydney commencing 1 January 2016 involving advising on the form of sublease, negotiating the terms of lease with the Sub-landlord s solicitor, advising on the application of the PGPA Act to indemnity and limitation of liability clauses and registration requirements. ATO in relation to preparing and negotiating leases, variations, renewals and deeds of release in relation to numerous premises on a national basis. Comcare in respect of preparing and negotiating leases for State and National Head Offices in Canberra, Sydney, Brisbane, Adelaide, Melbourne and Perth Brookfield in relation to a lease of an 11,000 square metre office building to the Department of Infrastructure and Regional Development. This included drafting and negotiating the terms of various leases, licences and other ancillary documentation. DEXUS in relation to the preparation and negotiation of the Lease, Fitout and Incentive Deed and ancillary documentation with the Department of Infrastructure and Regional Development in Canberra City. DEXUS, Commonwealth Bank of Australia and Westpac in respect of leasing for their ACT retail and office portfolio's. Centrelink/DHS on: the new Greenway Offices, which involved the preparation and negotiation of the Agreement to Design, Construct and Lease, the workstations supply contract and the partitions supply contract; and the new DHS Headquarters project, which involved the negotiation with a landlord for the development of a modified building to meet DHS' requirements, together with mechanisms for engaging the Landlord to undertake integrated fitout works, subject to certain conditions. This work included providing detailed advice on the application of the Financial Management and Accountability Act and Regulations and the Commonwealth Procurement Rules. National Capital Authority in relation to the development of the Bridging of Kings Avenue over Parkes Way. This involved assisting with the Request for Expressions of Interest and evaluation and assisting with the Request for Tender which included drafting the Contract, which was based on an Australian Standard document, and a range of additional project specific Special Conditions. This involved specifically advising the NCA on the requirements of the FMA Act including obtaining Reg 10 approval and the application of the OH&S Accreditation Scheme. Infrastructure and the Australian Sports Commission in relation to the preparation of Minor Works Contracts based on the Australian Standard form contracts. Works covered by these contracts included refurbishment works and airfield upgrade works. University of Canberra in respect of the development of further residential accommodation. This involved drafting the request for proposals including the contract, reviewing responses, advising the University on various aspects of development approval and relevant legislation and negotiating the terms of the contract. Amalgamated Holdings Limited in respect of the construction and lease of an 8,000 square metre office building in Canberra City. This involved, among other things, preparing and negotiating an agreement for lease and leases. DEEWR in relation to the establishment of a suite of construction contracts including Major, Medium and Minor Works Contracts, Managing Contractor Contracts and the establishment of Guidance Notes Alex Nicholls Curriculum vitae 3
FaHCSIA in relation to the appointment of a Management and Design Consultant for the purpose of the Outback Stores Project. This contract required the contractor to perform multiple roles and therefore was tailored specifically for the project. This matter included providing advice to FaHCSIA throughout and negotiating the contract with the contractor. Procurement of Goods and Services Alex has acted extensively for Commonwealth agencies in relation to the procurement of goods and services. This has included acting for: Health in relation to the preparation of the RFT and Deed of Standing Offer for the Health Technology Assessment Panel and the Economic Services Panel. Each of these panels has over 20 service providers. Alex has acted as lead negotiator in respect of both panels which has involved extensive negotiation in relation to intellectual property, indemnities and limitations of liability among other things. Health in relation to a contract for services for the provision of an Employee Assistance Program which included the evaluation and clarification of the response to the RFT, preparing the Services Agreement including performance measures and transition mechanisms and providing PGPA Act sign-off. DSS in relation to the preparation of various RFTs and Contracts for Services including preparing Deeds of Novations and Variations of those Agreements. This work has included the preparation of Deeds of Variation in relation to both the JobAccess Services and NDRC Services. Australian Taxation Office in relation to the establishment of its Property Management Services Contract for the ATO s significant leasing and property portfolio. This matter involved the preparation of the contract and extensive negotiations to finalise the contract. Commercial and government law matters Acted for Defence Housing Australia in relation to various matters including: providing advice on the powers and functions of DHA under the Defence Housing Australia Act 1987 (Cth) including DHA s ability to undertake specific projects and engage in particular activities; the application of State and Territory Real Estate Laws to DHA. This included advising DHA as to the application of the relevant laws given the potential Crown immunity; the application of the State and Territory Residential Tenancy Acts to DHA. This included advising DHA of the implications of the relevant acts applying in terms of DHA s tenancy arrangements; and the application of the Building and Construction Improvement Act and the National Code of Practice for the Construction Industry for particular projects DHA was considering undertaking. Advised the Department of the Environment in relation to: the application of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and other legislation which the Department administers including as to the processes and procedures the Department must adopt to comply with the legislative requirements; various Services Agreements, Funding Agreements, Requests for Tender, Expressions of Interest and contracts for the procurement of goods and services; and acted in a second counselling role which involved reviewing and finalising advices, contracts and associated documentation on a virtual secondment basis in relation to a range of matters including ICT and IP related matters. Advised the University of Canberra in relation to: the preparation of precedent contracts for the procurement of goods and services ranging in size from small to large scale procurements; the application of legislation to the University including the breadth of the University s functions and powers; and contracts for the procurement of goods and services by the University including advising on requests for tender. Acts for Local Councils in NSW in relation to various commercial matters including advising the Council on its powers and functions, the acquisition of land by agreement and compulsory process. This work includes providing complex advice on the Council s functions and powers under the Local Government Alex Nicholls Curriculum vitae 4
Act, the Environmental Protection and Assessment Act and the Land Acquisition (Just Terms Compensation) Act. Acted for a number of companies in relation to the procurement of goods and services and commercial disputes. This work has included advising on services agreements, information technology contracts and advising on disputes with service providers. Acted for a number of entities in relation to the acquisition and sale of assets including businesses, the acquisition of shares in companies, the drafting of joint venture agreements, shareholder agreements and partnership agreements for a variety of businesses. Commonwealth funding/grants Alex has advised: Department of Health in relation to various capital works funding programs administered by the Department, including providing advice in relation to: amending template funding agreements to address issues identified as areas for improvement in the process for delivery of funding and the security taken by the Department in relation to that funding; the preparation of precedent MOU s, Use Agreements and Builder Side Deeds and negotiating the same with various funding recipients; issues arising under on major capital works funding agreements, in order to address issues of land use entitlements, third party claims, step in rights and MOU s with state government bodies; land tenure and security requirements including tenure arrangements relevant to Aboriginal Land Trust Land in the Northern Territory, Crown land in various States and Territories and leased land; recovery of Commonwealth funds on the winding-up of a funding recipient or that have not been used in accordance with a Commonwealth funding agreement including advising on proving debts; various individual funding arrangements including Funding Agreements with the Telethon Kids Institute for an amount of approximately $33 million, the Gold Coast Suns Football Club for an amount of $15 million and the Lifehouse Project for an amount in excess of $50 million. Health Workforce Australia on the establishment of Funding Agreements and the ability for security to be obtained over assets that are acquired with funding from public monies. This has included drafting use agreements and purposes agreements establishing the rights of the funding entity in respect of the land owner and the operator to ensure suitable and enforceable rights exist. DEEWR (as it the was) on: the preparation and negotiation of agreements with various ATC's implementing the strategies for the securing of funding, some of which have involved the granting of lease mortgages to secure the Commonwealth's financial interest; securing funding to La Trobe University to construct and operate a clinical teaching facility on land owned by a third party. This included reviewing and assisting with advice on the proposed terms of the Agreement for Lease and Lease between La Trobe and the land owner and preparing and negotiating the Purposes Deed that was used to secure DEEWR's interest in the project; advising on alternative funding arrangements for construction of facilities on third party lands, where the facilities will be jointly funded with co-contributions and addressing issues of appropriate security arrangements; the application of the Financial Management and Accountability Act and Regulations and Commonwealth Procurement Rules to construction projects DEEWR was proposing to undertake. Finance Alex has acted for a number of financiers including the Commonwealth Bank of Australia, ANZ, Westpac and Investec. This work involved the provision of advice regarding the financing of large scale developments. This included extensive due diligence in relation to the site, the construction contracts and the off-the plan contracts for sale to assist the financiers to determine the risks associated with the transaction and whether funding will be provided. Alex has also acted in relation to the preparation of security documentation for individuals, companies and Commonwealth agencies including mortgages, second mortgages, priority deeds, general security agreements and specific security agreements. This work has included advising on priorities and registration. Alex Nicholls Curriculum vitae 5