web viewnote: this draft funding agreement is provided for information purposes and is an example...

NOTE: This Draft Funding Agreement is provided for information purposes and is an example only. The Draft is subject to amendment by the Department of the Environments before a final version is issued.

Remove ‘draft and sample’ watermark and ‘NOTE’ above prior to finalising the Funding Agreement with the Delivery Partner]

FUNDING AGREEMENTBETWEEN

COMMONWEALTH OF AUSTRALIAas represented by and acting through the Department of the Environment ABN 34 190 894 983AND[ORGANISATION’S NAME AND ABN]for funding under Round Four of the On-Farm Irrigation Efficiency Program [insert description of the Funding Recipient’s Activity that is being funded e.g. for irrigator projects involving X (i.e. conversion from unimproved surface irrigation to improved surface irrigation ].

Department of the Environment – Round Four Funding Agreement - <Insert DP Title Name>

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TABLE OF CONTENTS

PARTIES...................................................................................................................................................4

RECITALS................................................................................................................................................4

1. INTERPRETATION OF THIS AGREEMENT.............................................................................4

2. TERM OF THIS AGREEMENT....................................................................................................5

3. OTHER AUSTRALIAN GOVERNMENT FUNDING.................................................................5

4. PAYMENT.....................................................................................................................................5

5. PERFORMANCE OF THE ACTIVITY AND MANAGEMENT OF FUNDING........................6

6. ORGANISATION’S CONTRIBUTIONS AND OTHER CONTRIBUTIONS..........................13

6A. QUALITY OF EQUIPMENT.......................................................................................................14

7. ASSETS........................................................................................................................................14

8. WATER ACCESS ENTITLEMENTS.........................................................................................16

9. RECORDS AND AUDIT.............................................................................................................16

10. REPORTING................................................................................................................................17

11. TAXES, DUTIES AND GOVERNMENT CHARGES...............................................................19

12. AUSTRALIAN GOVERNMENT MATERIAL..........................................................................20

13. INTELLECTUAL PROPERTY...................................................................................................20

14. CONFIDENTIAL INFORMATION............................................................................................22

15. PROTECTION OF PERSONAL INFORMATION.....................................................................24

16. INDEMNITY................................................................................................................................25

17. INSURANCE................................................................................................................................26

18. CONFLICT OF INTEREST.........................................................................................................26

19. ACCESS TO PREMISES AND RECORDS................................................................................27

20. DELAY.........................................................................................................................................28

21. TERMINATION WITH COSTS AND REDUCTION IN SCOPE..............................................29

22. TERMINATION FOR DEFAULT...............................................................................................32

23. SUBCONTRACTING..................................................................................................................34

24. ACKNOWLEDGMENT AND PUBLICITY..................................................................................35

25. COMPLIANCE WITH LAWS AND OUR POLICIES...............................................................36

26. NEGATION OF LEGAL RELATIONSHIP OF EMPLOYMENT, PARTNERSHIP AND AGENCY......................................................................................................................................36

27. ENTIRE AGREEMENT, VARIATION AND SEVERANCE....................................................36

28. SURVIVING TERMS..................................................................................................................36

29. WAIVER.......................................................................................................................................36

30. ASSIGNMENT AND NOVATION.............................................................................................37

31. CORPORATE GOVERNANCE..................................................................................................37

32. DISPUTE RESOLUTION............................................................................................................38

33. APPLICABLE LAW AND JURISDICTION...............................................................................39

34. LIAISON AND MONITORING..................................................................................................39

35. NOTICES......................................................................................................................................40


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36. BUILDING CODE 2013..............................................................................................................40

37. COMPLIANCE WITH THE AUSTRALIAN GOVERNMENT BUILDING AND CONSTRUCTION OHS ACCREDITATION SCHEME............................................................42

38. COMPLIANCE WITH THE WATER MARKET, CHARGE AND TRADING RULES...........43

39. REVIEW.......................................................................................................................................44

40. ANIMAL ETHICS........................................................................................................................44

40A. TRANSFER OF RIGHT, TITLE AND INTEREST IN LAND...................................................44

41. INTERPRETATION.....................................................................................................................45

SCHEDULE.............................................................................................................................................55


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PARTIESCOMMONWEALTH OF AUSTRALIA (‘Commonwealth’), as represented by and acting through the Department of the Environment ABN 34 190 894 983 (‘the Department’)

AND

[FUNDING RECIPIENT’S NAME AND ABN] (‘the Organisation’)

RECITALSA. The Commonwealth is working to improve the efficiency and productivity of on

farm irrigation water use and management. The On-Farm Irrigation and Efficiency Program (‘the Program’) is part of the Sustainable Rural Water Use and Infrastructure Program.

B. The Program is aimed at assisting irrigators within the southern connected system of the Murray-Darling Basin to modernise their on-farm irrigation infrastructure while returning water savings to the environment.

C. This Agreement provides for the acquisition of permanent Water Access Entitlements by the Commonwealth, where the water covered by the entitlements is generated by the eligible activities undertaken by the Organisation and its Proponents under the Program.

D. Water Access Entitlements Assigned to the Commonwealth under this Agreement will become part of the Commonwealth Environmental Water Holdings to be managed for the purpose of protecting and restoring Australia's environmental assets.

E. The Organisation is committed to improving the efficiency and productivity of on-farm water use and management and thereby helping to achieve the permanent Assignment of Water Access Entitlements to the Commonwealth through its conduct of the Activity.

F. As a result of this commitment, the Commonwealth has agreed to support the Activity and the achieving of its Objectives by providing Funding to the Organisation, subject to the terms and conditions of this Agreement.

G. The Commonwealth is required by law to ensure accountability for public money, and to be accountable for all Funds it provides.

H. The Organisation agrees to accept the Funding for the purposes, and subject to the terms and conditions, set out in this Agreement.

1. INTERPRETATION OF THIS AGREEMENT 1.1 Clause 41 contains:

(a) the definitions used in this Agreement;

(b) the rules governing the interpretation of this Agreement; and

(c) the relative priority of the different parts of this Agreement.


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2. TERM OF THIS AGREEMENT2.1 The Term of this Agreement commences on the Date of this Agreement and,

unless terminated earlier, it expires on the Completion Date.

3. OTHER AUSTRALIAN GOVERNMENT FUNDING3.1 If the Organisation receives any funding from the Commonwealth under an

Environmental Arrangement, a breach of that Environmental Arrangement may be regarded by the Department as a breach of this Agreement.

3.2 The Organisation must inform the Department in writing within 20 Business Days of its entry into an Environmental Arrangement.

3.3 Any payments under this Agreement may be deferred or suspended by the Department in whole or in part if the Organisation has outstanding or unacquitted moneys under an Environmental Arrangement.

3.4 For the purpose of clause 3.3, ‘outstanding or unacquitted moneys’ means any amounts to be repaid to the Commonwealth and which have not been expended by the Organisation in accordance with the terms of the relevant Environmental Arrangement.

4. PAYMENT4.1 Subject to:

(a) sufficient funds being available for the Program, and

(b) compliance by the Organisation with this Agreement (including the invoicing requirements, if any, specified in the Schedule) and the Guidelines,

the Commonwealth will provide the Organisation with the Funding at the times and in the manner specified in the Schedule.

4.2 Without limiting its rights, the Commonwealth may withhold or suspend a payment of Funds in whole or in part until the Organisation has performed, to the Department's satisfaction, the Organisation's obligations (including the completion of a particular Milestone or provision of a particular Report) under this Agreement that are preconditions to that payment of Funds.

4.3 The Commonwealth may also withhold or suspend any part of a Funding payment that relates to a Proponent's Sub-Project until that Proponent has performed the part of its Sub-Project under its contract with the Organisation that is a precondition to either the payment of that Funding by the Commonwealth to the Organisation or the on-payment of that Funding by the Organisation to the Proponent.

4.4 Notwithstanding any withholding or suspension of any payments of Funds under this Agreement, the Organisation must continue to perform its obligations under this Agreement, and ensure that its Proponents perform their Sub-Projects in accordance with their contracts with the Organisation:


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(a) to the extent that the Organisation has received Funds for the performance of such obligations or Projects;

(b) to the extent that the Proponents have received Funds for the performance of such obligations or Sub-Projects; and

(b) unless the Department agrees otherwise in writing.

4.5 The Commonwealth is not required to make any payment of Funds directly to a Proponent. Unless the Department agrees otherwise in writing, the Organisation may only on-pay Funding to a Proponent (or pay Funding on behalf of a Proponent under clause 5.8 and 5.8A) who has complied and is complying with its contract with the Organisation.

Note: Clause 5.18 explains the requirements that need to be included in the Organisation's contracts with each of its Proponent.

5. PERFORMANCE OF THE ACTIVITY AND MANAGEMENT OF FUNDING5.1 The Organisation must carry out the Activity (including the Project), and

ensure that its Proponents carry out their Sub-Projects:

(a) in accordance with this Agreement (including the Schedule and each Sub-Project Type Schedule) and the Guidelines;

(b) within the Activity Period and in accordance with the relevant Milestone Schedule;

(c) diligently, effectively and to a high professional standard; and

(d) in good faith so as to achieve the Objectives specified in the Schedule.

5.2 The Organisation agrees to comply with all applicable requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in carrying out the Project and in completing each Milestone. The Organisation must also ensure that a Proponent complies with these requirements in carrying out a Sub-Project.

5.3 Apart from the obligations on the Commonwealth in relation to a Water Access Entitlement Assignment Contract with a Proponent, including all things necessary to be done to complete the Water Access Entitlement Assignment Contract, the Organisation acknowledges that the Commonwealth has no obligation to perform any aspect of the Activity before, during or after the Completion Date.

5.4 Where the Commonwealth, acting reasonably, is satisfied that:

(a) the Organisation does not have the capacity to manage the Funding; or

(b) a Proponent does not have the capacity to manage the part of the Funding paid or payable in respect of a Sub-Project undertaken by a Proponent,


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the Commonwealth may immediately suspend, reduce or cease the release of that Funding to the Organisation on providing the Organisation with written notice of this decision and, where paragraph 5.4(b) applies, the Organisation must not pay any further amounts of Funding to that Proponent (or on behalf of a Proponent under subclause 5.8 and 5.8A) after it receives such a notice.

5.5 The Funding must be spent by the Organisation, and the Organisation must ensure that the Funding is spent by each Proponent, only:

(a) in the case of the Organisation - for the Activity in accordance with this Agreement and the Guidelines;

(b) in the case of a Proponent - for its Sub-Project in accordance with the contract between the Organisation and the Proponent; and

(c) in the case of interest earned on the Funds, with the Department’s prior written permission.

The Organisation must not provide any Funding to a Proponent in respect of the Proponent's time spent performing any part of the Activity unless the activity undertaken by the Proponent is specified in the Proponent's contract with the Organisation and is costed at a reasonable contractor rate for that activity.

5.6 The Organisation must:

(a) ensure that the Funds are held in an account in the Organisation’s name, and which the Organisation solely controls, with an authorised deposit-taking institution authorised under the Banking Act 1959 (Cth) to carry on banking business in Australia;

(b) unless otherwise stated in the Schedule, ensure that the account referred to in paragraph 5.6(a) is:

(i) established solely for the purposes of accounting for, and administering, any Funding provided by the Commonwealth to the Organisation under this Agreement; and

(ii) separate from the Organisation’s other operational accounts;

(c) notify the Department, in writing, prior to the receipt of any Funds, of details sufficient to identify the account;

(d) provide written notification to the authorised deposit-taking institution at which the account is established that the Funds are funds held for the purposes of the Activity and provide a copy of that notification to the Department;

(e) provide the Department and the authorised deposit-taking institution with an authority for the Commonwealth to obtain any details relating to any use of the account;


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(f) if the account changes, notify the Department in writing within 10 Business Days of the change occurring providing the Department with details of the new account and comply with paragraph 5.6(e) above in respect to the new account; and

(g) unless the Organisation is a sole director company, ensure that at a minimum two signatories, who have the Organisation’s authority to do so, are required to operate the account.

The Organisation must ensure each Proponent complies with requirements that:

(h) are equivalent to those imposed on the Organisation under this subclause 5.6 other than the requirements specified in paragraphs 5.6(b) and 5.6(g) above; and

(i) give the Organisation the same rights as the Department has under this clause,

where the Organisation pays Funds to that Proponent in advance (i.e. to complete the Proponent's next Milestone). If requested by the Department, the Organisation must use its authorisation to obtain information about a Proponent's bank account and immediately provide that information to the Department.

5.7 The Organisation must keep financial accounts and Records relating to the Activity so as to enable:

(a) all receipts and payments related to the Activity to be identified (and all receipts and expenditure of the Funds to be separately identified) in the Organisation’s accounts and reported in accordance with this Agreement;

(b) unless notified by the Commonwealth, the preparation of financial statements in accordance with Australian Accounting Standards including:

(i) an income and expenditure statement for the Financial Year(s) to date compared with the Budget; and

(ii) a schedule of the Assets acquired, sold, written-off or otherwise disposed of during the Financial Year(s) to date compared with the Budget; and

(c) the audit of those Records in accordance with Australian Auditing Standards.

The Organisation must also ensure that each Proponent keeps financial accounts and Records in a manner that enables the Proponent to satisfy requirements equivalent to those specified in paragraphs 5.7(a) to (c) above in relation to the Sub-Project that is to be undertaken by the Proponent.

5.8 The Organisation must do all things necessary to ensure that all payments from the Funds that the Organisation or a Proponent makes to third parties


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are correctly made and properly authorised and that the Organisation or Proponent (as the case may be) maintains proper and diligent control over the incurring of all liabilities.

5.8A The Organisation may, with the written consent of a Proponent and the Department, use Funds (which the Organisation would otherwise be required under this Agreement to pay to that Proponent to perform its Sub-Project) to:

(a) purchase an Asset or pay for services for or on behalf of the Proponent to use in its Sub-Project; or

(b) meet a liability of a Proponent in relation to an Asset or services a Proponent is using in its Sub-Project.

The Organisation must not purchase the Asset or services on behalf of the Proponent or meet the liability in relation to the Asset or services unless the Organisation has first obtained the Proponent's written agreement to deduct the cost of that Asset or services from the Funds that would otherwise be paid to the Proponent.

5.9 Except with the Department’s prior written approval, the Organisation must not, and must ensure that a Proponent does not, use any of the following as any form of security for the purpose of obtaining or complying with any form of loan, credit, payment or other interest:

(a) the Funds;

(b) this Agreement (or a contract between the Organisation and a Proponent) or, any obligations owed under this Agreement or under the contract between the Organisation and a Proponent; or

(c) any Assets or Intellectual Property Rights in Activity Material.

5.10 If, at any time during the Term of this Agreement the Commonwealth, acting reasonably, determines that:

(a) there remains an amount of Funding that has not been spent or legally and irrevocably committed for expenditure in accordance with this Agreement by the Organisation; or

(b) there remains an amount of Funding that has not been spent or legally and irrevocably committed for expenditure by a Proponent in accordance with its contract with the Organisation; or

(c) an amount of Funds has not been spent in accordance with this Agreement or the Organisation’s contract with a Proponent,

then at the Commonwealth’s discretion that amount of Funds must be:

(d) refunded by the Organisation to the Commonwealth within 20 Business Days of a written notice from the Commonwealth; or

(e) otherwise dealt with as directed in writing by the Commonwealth,

or the Commonwealth may reduce further payments of Funding to the Organisation by up to that amount.


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5.10A If, upon expiry of the Activity Period, completion of the Activity or any termination of this Agreement, whichever is the earliest, the Organisation’s Contributions and/or Other Contributions have not been provided in full, the Commonwealth may (without limiting its rights) require the Organisation to refund to the Commonwealth within 20 Business Days of a written notice from the Commonwealth an amount of Funds calculated in accordance with the following formula:

R = F × [1 − (AC ÷ OC)] − W

Where:

R = The refund amount;

F = The amount of Funding specified in Item 2.1 of the Schedule;

AC = The total aggregate amount of contributions made as Organisation’s Contributions and/or Other Contributions pursuant to this Agreement;

OC = The total aggregate amount of Organisation’s Contributions and Other Contributions specified in Item 3 of Annexure B (and any subsequent Annexures); and

W = Any amount of Funding either withheld by the Commonwealth or already refunded to the Commonwealth by the Organisation.

5.11 If an amount is required to be repaid to the Commonwealth under this clause 5 and the amount is not repaid to the Commonwealth within 20 Business Days, Interest will accrue and be payable by the Organisation, unless the Commonwealth notifies the Organisation otherwise, on the amount outstanding after the expiry of the 20 Business Days, until the amount is paid in full.

5.12 If:

(a) at the completion of the Activity Period the Organisation has Funds; or

(b) at the completion of a Proponent's Sub-Project, the Proponent has Funds,

(which does not include those Funds legally and irrevocably committed for expenditure in accordance with this Agreement and which fall for payment thereafter), the Organisation must seek the Commonwealth’s agreement for the Organisation or the Proponent to retain the Funds and use them for purposes agreed by the Commonwealth.

5.13 If the Commonwealth does not agree to the Organisation or a Proponent retaining the Funds under subclause 5.12, the Organisation must return those Funds to the Commonwealth.

5.14 Any amount, including any Interest, owed to the Commonwealth under this clause 5, will, without prejudice to any other rights available to the Commonwealth under this Agreement or at law or in equity, be recoverable


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by the Commonwealth, at its sole discretion, as a debt due to the Commonwealth by the Organisation without further proof of the debt by the Commonwealth being necessary.

5.15 The Commonwealth is not responsible for the provision of any money or resources in excess of the Funds. As between the Commonwealth and the Organisation, the Organisation accepts responsibility for the provision of any additional funds which may be required to complete the Activity.

Arrangements in relation to the Project and Sub-Projects

5.16 The Organisation is responsible for:

(a) undertaking the Activity (including the Project);

(b) completing the Sub-Project Types the subject of the Sub-Project Type Schedules attached to this Agreement; and

(c) entering into contracts with its Proponents in respect of the Sub-Projects identified in a Sub-Project Type Schedule.

Arrangements between the Organisation and its Proponents

5.17 The Organisation may only provide Funding for a Proponent’s Sub-Project if:

(a) the Proponent has the capacity to enter a legally binding contract with the Organisation in respect of the Sub-Project and has entered into such a contract with the Organisation;

(b) the Proponent's Sub-Project (and the Funding to be provided to a Proponent) is identified in the Sub-Project Type Schedule, or otherwise approved in writing by the Department;

(c) a Proponent in that Sub-Project holds the Water Access Entitlements or a Proponent in that Sub-Project has the capacity to enter into a Water Access Entitlement Contract; and

(d) a Proponent in that Sub-Project has entered into a Water Access Entitlement Contract.

5.18 The Organisation is required to ensure that its contract with each of its Proponents is consistent with, and gives effect to, the Organisation’s obligations in this Agreement. Without limiting the generality of the preceding sentence, the Organisation is required to:

(a) ensure that its contract with each of its Proponents contains provisions that contain the requirements specified in Annexure A;

(b) ensure that its contract with each of its Proponents gives the Commonwealth or the Department (as the case may be) the same rights in respect of a Proponent, as the Commonwealth or the Department has in respect of the Organisation under this Agreement, in relation to:


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(i) the disclosure of Commonwealth Confidential Information – see clause 14;

(ii) access to premises, records and accounts – see clause 19; and

(iii) (where a Proponent holds a Water Access Entitlement(s)) the Assignment of the Commonwealth Share of the Agreed Water Savings to the Commonwealth – see clause 8;

(c) effectively manage each contract with a Proponent and monitor the Proponent’s compliance with the contract;

(d) enforce the Organisation’s rights, and Proponents' obligations, in those contracts as and when required by the Department at no cost to the Commonwealth;

(e) enforce, on the Commonwealth’s behalf, any rights granted for the benefit of the Commonwealth in those contracts at no cost to the Commonwealth; and

(f) if requested by the Department, provide a final draft copy of the Organisation's contract with each of its Proponents to the Department prior to the Organisation signing those contracts.

5.19 The Organisation is required to ensure that it does not make any payment of Funds for a Proponent’s Sub-Project until a Proponent in that Sub-Project holding a Water Access Entitlement(s) has entered into:

(a) a contract with the Organisation that satisfies the requirements of clauses 5.17 and 5.18 above, which includes a requirement for the Proponent to enter into a Water Access Entitlement Assignment Contract;

(b) a Water Access Entitlement Assignment Contract as required by clause 8 and,

that Water Access Entitlement Assignment Contract has settled so that the transfer of the relevant Water Access Entitlements have been completed.

5.20 If a Proponent does not complete the Water Access Entitlement Assignment Contract within 90 Business Days of the date of that contract (or such longer period agreed by the Commonwealth), any Funds provided to the Organisation in respect of that Proponent’s Sub-Project shall be repaid by the Organisation to the Department in accordance with clause 5.10 or otherwise dealt with by the Organisation as directed in writing by the Department.

6. ORGANISATION’S CONTRIBUTIONS AND OTHER CONTRIBUTIONS6.1 The Organisation must provide the Organisation’s Contributions for the

Activity.


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6.2 It is a condition precedent to the payment of Funds under this Agreement that:

(a) the Organisation must ensure that the people (if any and other than the Commonwealth), identified in Item 3 of the Schedule and each Sub-Project Type Schedule, provide the Department with satisfactory written evidence that they will provide the Other Contributions, including the amounts to be provided and the terms and conditions of the provision of the Other Contributions; and

(b) the terms and conditions on which these Other Contributions are to be provided must be satisfactory to the Department.

Note: Providing the Department with a copy of the Organisation's contract with a Proponent would satisfy the Organisation's obligation under clause 6.2 in respect of any Other Contributions that are required to be provided by that Proponent under that contract.

6.3 The written confirmation referred to in subclause 6.2 must be provided to the Department within 60 Business Days of the date of execution of the Organisation’s contract with a Proponent in relation to the Proponent’s Sub-Project, failing which the Commonwealth may, at its sole discretion, reduce the scope of (and the Funds payable under) this Agreement under clause 21 or terminate this Agreement under clause 22.

6.4 The Organisation must use all reasonable endeavours to obtain Other Contributions sufficient to enable the completion of the Activity.

6.5 If the Organisation is not able to provide the Organisation’s Contributions or obtain Other Contributions or provide or obtain them in time to enable completion of the Activity, then the Commonwealth may:

(a) suspend payment of the Funds or an instalment of the Funds (as the case may be) until the Organisation’s Contributions are provided or the Other Contributions are received;

(b) (upon expiry of the Activity Period, completion of the Activity or any termination of this Agreement, whichever is the earliest) request the Organisation to refund to the Commonwealth an amount of Funds calculated in accordance with the formula in clause 5.10A; or

(c) terminate this Agreement in accordance with clause 22.

6.6 The Organisation must inform the Department in writing within 10 Business Days of entering into any arrangement (whether contractual or statutory) under which the Organisation or a Proponent is entitled to receive any additional monetary or in-kind contributions in respect of the Activity that are not identified in the Schedule. Any such additional contribution that the Organisation or a Proponent becomes entitled to receive after the Date of this Agreement will constitute Other Contributions.

6.7 The Organisation must include any Organisation’s Contributions and/or Other Contributions in the overall Activity Budget and, where an additional


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Other Contribution is agreed (as contemplated by clause 6.6), provide an updated Sub-Project Type Schedule that reflects the Other Contribution.

6A. QUALITY OF EQUIPMENT 6A.1 The Organisation must ensure that all equipment (new and second-hand)

installed as part of a Proponent’s Sub-Project is of merchantable quality, fit for purpose and consistent with the nature and character of the Proponent’s Sub-Project.

6A.2 The Organisation agrees that any use of second-hand equipment:

(a) may involve higher risk than the use of new equipment, and

(b) is at the Organisation’s and Proponent’s own risk.

6A.3 The Organisation must be satisfied (and ensure that a Proponent is satisfied), prior to any use of second-hand equipment in performing a Proponent’s Sub-Project, that the second-hand equipment complies with the requirements specified in subclause 6A.1 above.

6A.4 If the Commonwealth, acting reasonably, determines that any use of second-hand equipment has reduced the expected benefits from a Proponent’s Sub-Project and does not comply with the requirements of this Agreement, the Commonwealth may:

(a) withhold or suspend a payment of Funds in whole or in part in accordance with clause 4; and/or

(b) require the Organisation or Proponent to carry out remedial works at the Organisation’s or Proponent’s cost.

7. ASSETS7.1 The Organisation agrees not to use the Funding to create or acquire any Asset

(apart from an Asset specified in the Budget in Item 4 of the Schedule or a Sub-Project Type Schedule) without obtaining the prior written approval of the Commonwealth (which will not be unreasonably withheld). The Commonwealth’s approval may be given subject to any conditions the Commonwealth may impose.

7.2 The Organisation must ensure that Proponents only use the Funding to create or acquire Assets which have been specified in a contract with a Proponent.

7.3 During the Activity Period the Organisation agrees to use each Asset, and ensure that each Asset is used:

(a) by the Organisation in accordance with this Agreement; and

(b) by a Proponent in accordance with a contract between the Organisation and a Proponent.

7.4 Throughout the Term of this Agreement, the Organisation agrees (and must ensure that its Proponents agree):


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(a) not to encumber or Dispose of any Asset, or deal with or use any Asset other than in accordance with this clause 7, without the Organisation obtaining the Department’s prior written approval, which may be given subject to any conditions the Department requires;

(b) to hold all Assets securely and safeguard them against theft, loss, damage, or unauthorised use;

(c) to maintain all Assets in good working order;

(d) (unless a specific exemption is given by the Department to the Organisation) to maintain all appropriate insurances for all Assets to their full replacement value noting the Commonwealth’s interests, if any, in the Asset under this Agreement and provide satisfactory written evidence of this to the Department when requested;

(e) if required by law, to maintain registration and licensing of all Assets;

(f) to be fully responsible for, and bear all risks relating to, the use or Disposal of all Assets;

(g) to maintain an Assets register in the form and containing the details as described in the Schedule (this requirement does not apply to Proponents); and

(h) as and when requested by the Department to the Organisation, to provide copies of the Assets register to the Department.

7.5 If the Organisation or a Proponent Disposes of an Asset during the Term of this Agreement (which must be with the Department’s prior written consent and subject to any conditions the Department may impose), the proportion of the Asset’s market value that was met by the Funds must be accounted for as Project Generated Income.

7.6 If any Asset is lost, stolen, damaged or destroyed, or not maintained, during the Term of this Agreement, the Organisation must, and must ensure that its Proponents, reinstate the Asset, including from the proceeds of the insurance and this clause 7 continues to apply to the reinstated Asset. The proportion of any surplus from the proceeds of insurance which reflects the proportion of the acquisition cost of the Asset that was met by the Funds must be notified to the Department and used and accounted for as Project Generated Income under this Agreement.

7.7 The Department’s approvals under subclause 7.1, paragraph 7.4(a) and subclause 7.5 will not be unreasonably withheld. A decision as to whether an approval will be provided will be made within a reasonable time of the request.


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8. WATER ACCESS ENTITLEMENTS8.1 The Organisation must ensure that each Proponent holding a Water Access

Entitlement(s) or having the capacity to enter into a Water Access Entitlement Assignment Contract as contemplated by clause 5.17(c), is contractually obliged to Assign to the Commonwealth that part of the Proponent’s Water Access Entitlement(s):

(a) that is/are in total equivalent to the Commonwealth Share of the Agreed Water Savings for that Proponent’s Sub-Project in the volumes specified in Item 14 of the Schedule and Item 5 of the Sub-Project Type Schedule; and

(b) by the date or dates set out in the Milestone Schedule or as otherwise notified by the Commonwealth.

8.2 The Organisation undertakes, if requested by the Commonwealth, to bring into existence, sign, execute or otherwise deal with any document, or require its Proponents to do so, which may be necessary or desirable to give effect to this clause 8.

8.3 The Organisation must ensure that a Proponent does not use the Funds to pay for costs associated with the Assignment to the Commonwealth of the Water Access Entitlement(s) that is/are required to be Assigned to the Commonwealth by this clause 8, Item 14 of the Schedule and Item 5 of a Sub-Project Type Schedule.

9. RECORDS AND AUDIT9.1 The Organisation must keep full and accurate accounts and Records of:

(a) the conduct of the Activity including, without limitation, the progress against the Milestones;

(b) the receipt and use of Funding, Organisation’s Contributions (if any) and Other Contributions (if any);

(c) the acquisition of Assets;

(d) the Agreed Water Savings, the Commonwealth Share of the Agreed Water Savings, the Assignment of the Commonwealth Share of the Agreed Water Savings; and

(e) the creation of Intellectual Property Rights in Activity Material.

9.2 Records and accounts specified in or referred to in subclause 9.1 must be retained by the Organisation for a period of no less than 7 years after the end of the Activity Period.

9.3 The operation of subclause 9.2 survives the expiration or earlier termination of this Agreement.

9.4 In addition to any other requirement in relation to the retention of records and reporting, the Organisation acknowledges that the Department may, at its discretion, conduct an independent audit of the Organisation, a Proponent


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and any Subcontractor(s) having regard to their obligations and warranties under this Agreement.

9.5 The subject matter of any audit conducted pursuant to subclause 9.4 may include financial and technical matters, the extent to which the parties are aware of their obligations and have complied with clause 25 and whether water savings have accrued as represented in a Sub-Project Plan.

9.6 In conducting an audit contemplated by this clause the Department may take into consideration:

(a) the records the subject of subclause 9.1;

(b) any other information or materials reasonably required (and the Organisation must comply and must ensure that its Subcontractors comply with any reasonable request to provide such information or material),

and may conduct a site inspection as contemplated by subclause 19.6.

9.7 The Organisation must ensure that its contractual arrangements with Subcontractors and Proponents reflect the requirements of this clause 9.

10. REPORTING10.1 The Organisation agrees to provide the Department with written reports at

the times and containing the information, specified in Item 5 of the Schedule.

10.2 Within 60 Business Days after each financial year and, within 60 Business Days prior to the end of the Activity Period or termination of this Agreement (whichever is the earliest), the Organisation agrees to provide the Department with a financial Report containing:

(a) audited financial statements of its income and expenditure in respect of the Funding, Organisation’s Contributions (if any), Other Contributions (if any), and Project Generated Income that include:

(i) a definitive statement as to whether the financial information for the Activity is true and fair and is based on proper accounts and Records;

(ii) a definitive statement as to whether the Funding (and any Other Contributions, Organisation’s Contributions and Project Generated Income) was spent for the Activity and in accordance with this Agreement;

(b) a statement of financial position (assets and liabilities by class), which must include, under assets, the balance of the Organisation’s account referred to in paragraph 5.6(a);

(c) a copy of a letter to the Organisation from its Approved Auditor, or a report from the Organisation’s Approved Auditor, including:


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(i) specific comment on the adequacy of financial controls being maintained by the Organisation;

(ii) specific comment on the Organisation’s financial position as it relates to any issues affecting its ability to repay surplus Funds or complete the Activity with available Funds;

(iii) where there are any qualifications or limitations on the audit, an outline of the reason(s) for the qualifications or limitations and the remedial action recommended; and

(d) a statement that the Organisation is satisfied that a Proponent has spent the Funds in accordance with the Organisation’s contract with the Proponent.

10.3 The information required to be provided under subclauses 10.1 and 10.2 must be accompanied by a certificate (from the Organisation’s Chief Executive Officer or the Organisation’s senior executive officer who has primary responsibility for managing the Organisation’s audit functions) that:

(a) all Funding received (and any Other Contributions, Organisation’s Contributions and Project Generated Income) was spent for the purpose of the Activity and in accordance with this Agreement and that the Organisation has complied with this Agreement;

(b) salaries and allowances paid to persons involved in the Activity are in accordance with any applicable award or agreement in force under any relevant Law;

(c) any financial information required is presented in accordance with any other financial reporting requirements which the Department may notify to the Organisation;

(d) where an Asset has been created or acquired with the Funding, that the Organisation has complied with clause 7 in respect of those Assets; and

(e) at the time the Report or financial statement is provided to the Department, the Organisation is able to pay all of its debts as and when they fall due.

10.4 The Organisation agrees that the financial statements referred to in subclause 10.2 will comply with Australian Accounting Standards and will be prepared by a Qualified Accountant.

10.5 The Organisation agrees that the audit referred to in subclause 10.2 will be carried out by an Approved Auditor and comply with the Australian Auditing Standards.

10.6 The Organisation is responsible for:

(a) consolidating its financial statements;

(b) arranging for those consolidated statements to be audited by an Approved Auditor; and


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(c) ensuring that the audit complies with the Australian Auditing Standards.

10.7 The operation of this clause 10 survives the expiration or earlier termination of this Agreement.

11. TAXES, DUTIES AND GOVERNMENT CHARGES11.1 Subject to this clause 11 as between the Commonwealth and the

Organisation, all taxes, duties and government charges imposed or levied in Australia or overseas in connection with this Agreement must be borne by the Organisation.

11.2 The Organisation warrants that it has an ABN, which it has correctly quoted to the Department. The Organisation must:

(a) not provide Funds to a Proponent unless the Proponent has an ABN or provided the Organisation with an Australian Taxation Office “Statement by a Supplier” declaration form confirming the reason for not quoting an ABN;

(b) immediately notify the Department of any changes to the Organisation's or a Proponent's GST status or ABN; and

(c) supply proof of its and its Proponents’ GST status, as and when requested by the Department.

The requirements in this clause 11.2 are preconditions to the payment of Funds.

11.3 The Funds paid by the Department under this Agreement include an amount on account of GST imposed on any supplies made by the Organisation to the Department under this Agreement that are taxable supplies within the meaning of the GST Act.

11.4 The Organisation must give the Department a tax invoice in accordance with the GST Act in relation to any taxable supply made by the Organisation to the Department under this Agreement prior to payment of any Funds by the Department.

11.5 If no taxable supplies are made by the Organisation to the Department under this Agreement, the Organisation on receipt of a written demand from the Department must promptly pay back to the Department the amount on account of GST included in the Funds.

11.6 No Party may claim or retain from the other Party any amount in relation to a supply made under this Agreement for which the first Party can obtain an input tax credit or decreasing adjustment.

11.7 If requested by the Department, the Organisation must provide evidence of its GST status.


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12. AUSTRALIAN GOVERNMENT MATERIAL12.1 Ownership of all Australian Government Material, including Intellectual

Property Rights in that Material, remains vested at all times in the Commonwealth but the Commonwealth grants the Organisation a licence to use, copy and reproduce that Material (including a right of sublicence) but only for the purposes of this Agreement and in accordance with any conditions or restrictions specified in this clause or the Schedule or otherwise notified by the Department to the Organisation in writing.

12.2 Upon the expiration of the Activity Period or earlier termination of this Agreement, the Organisation may retain all Australian Government Material remaining in the Organisation’s possession, unless otherwise specified in the Schedule.

12.3 The Organisation must keep safely and maintain Australian Government Material provided to the Organisation for the purposes of this Agreement.

12.4 Should the Organisation provide any Australian Government Material to a Subcontractor or a Proponent, the provision of that Australian Government Material to a Subcontractor or a Proponent is to be on the same terms as this clause 12 and the Schedule.


13. INTELLECTUAL PROPERTY13.1 Subject to this clause 13, as between the Commonwealth and the

Organisation (but without affecting the position between the Organisation and a third party) Intellectual Property Rights in Activity Material vest immediately in the Organisation.

13.2 The Organisation grants to the Commonwealth, and must arrange for a grant to the Commonwealth of, a permanent, irrevocable, free, worldwide, non-exclusive licence (including a right of sub-licence) to use, reproduce, adapt and exploit the Intellectual Property Rights in Activity Material for any purpose. If the Intellectual Property Rights in any Activity Material are owned by a third party, the Organisation must arrange for that third party to grant the Commonwealth a permanent, irrevocable, free, worldwide, non-exclusive licence (including a right of sub-licence) to use, reproduce, adapt and exploit the Intellectual Property Rights in the Activity Material for the purposes of reporting on, evaluating, monitoring, communicating and publicising (but not commercialising) the Activity.

13.3 This clause 13 does not affect the ownership of any Intellectual Property Rights in any Existing Material, which is specified in the Schedule. The Organisation, however, grants to the Commonwealth or must arrange for the grant to the Commonwealth of a permanent, irrevocable, free, world-wide, non-exclusive licence (including a right of sub-licence) to use, reproduce,


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adapt and exploit the Intellectual Property Rights in Existing Material for any purpose.

13.4 Without limiting the effect of subclause 13.2 and 13.3, subclauses 13.2 and 13.3 require the Organisation to ensure the Commonwealth has a licence to use, reproduce, adapt and exploit the Intellectual Property Rights in all Activity Material and Existing Material that vest in a Subcontractor or a Proponent.

13.5 The Organisation:

(a) must, if requested by the Department to do so, bring into existence, sign, execute or otherwise deal with any document for the purpose of giving effect to this clause 13;

(b) warrants that it is entitled, or will be entitled at the relevant time, to deal with the Intellectual Property Rights in the Activity Material and the Existing Material in accordance with this clause 13;

(c) except as expressly provided for in this Agreement, must not deal with the Intellectual Property Rights in the Activity Material during the Term of this Agreement; and

(d) must ensure that each Subcontractor and Proponent complies with the requirements of this subclause 13.5.

13.6 For the purposes of this clause 13, the ‘Specified Acts’ means any of the following classes or types of acts or omissions by or on behalf of the Commonwealth:

(a) using, reproducing, adapting or exploiting all or any part of the Activity Material, with or without attribution of authorship;

(b) supplementing the Activity Material with any other Material;

(c) using the Activity Material in a different context to that originally envisaged;

but does not include false attribution of authorship.

13.7 The Organisation agrees:

(a) to obtain from each author of any Activity Material a written consent which extends directly or indirectly to the performance of the Specified Acts by the Commonwealth or any person claiming under or through the Commonwealth (whether occurring before or after the consent is given); and

(b) upon request, to provide the executed original of any such consent to the Department.

13.8 This clause 13 does not apply to any:

(a) Australian Government Material incorporated in the Activity Material;


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(b) practical or commercial use by the Commonwealth of Existing Material including any software applications, patents and designs used to perform the Activity; or

(c) use by the Commonwealth of detailed specifications in relation to Existing Material.


14. CONFIDENTIAL INFORMATION14.1 Subject to subclause 14.5, a Party must not, without the prior written consent

of the other Party, use or disclose any Confidential Information of the other Party.

14.2 In giving written consent to use or disclose its Confidential Information, a Party may impose such conditions as it thinks fit, and the other Party agrees to comply with these conditions.

14.3 A Party may at any time require the other Party to arrange for:

(a) the other Party’s employees, officers and volunteers;

(b) the other Party’s Advisers; or

(c) any person with a Third Party Interest;

to give a written undertaking in the form of a Deed relating to the use and non-disclosure of the first Party’s Confidential Information.

14.4 If a Party receives a request under subclause 14.3, it must promptly arrange for all such undertakings to be given.

14.5 The obligations on a Party under this clause 14 will not be taken to have been breached to the extent that Confidential Information:

(a) is disclosed by a Party to its Advisers or employees solely in order to comply with the Party’s obligations, or to exercise the Party’s rights, under this Agreement;

(b) is disclosed to a Party’s internal management personnel, solely to enable effective management or auditing of Agreement-related activities;

(c) is disclosed by the Department to the responsible Minister;

(d) is shared by the Department with another Commonwealth department or agency, where this serves the Commonwealth’s legitimate interests;

(e) is disclosed by a Party, in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia;

(f) is authorised or required by law to be disclosed;

(g) is disclosed by a Party and is information in a material form in respect of which an interest, whether by licence or otherwise, in the


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Intellectual Property Rights in relation to that material form, has vested in, or is assigned to, the disclosing Party under this Agreement or otherwise, and that disclosure is permitted by that licence or otherwise;

(h) is disclosed by a Party to the Australian Securities Exchange pursuant to a listing rule or other requirement to do so; or

(i) is in the public domain otherwise than due to a breach of this clause 14.

14.6 Where a Party intends to disclose Confidential Information to another person:

(a) pursuant to paragraphs 14.5 (a) to (e) – the disclosing Party must notify the receiving person that the information is Confidential Information; and

(b) pursuant to paragraphs 14.5 (a), (b) or (d) – the disclosing Party must not provide the information unless the receiving person agrees to keep the information confidential.

14.7 The Parties may agree in writing after the Date of this Agreement that certain additional information is to constitute Confidential Information for the purposes of this Agreement.

14.8 Where the Parties agree in writing after the Date of this Agreement that certain additional information is to constitute Confidential Information for the purposes of this Agreement, that documentation is incorporated into, and becomes part of this Agreement (and the Schedule is deemed to be varied accordingly), on the date by which both Parties have signed that documentation.

14.9 The obligations under this clause 14 continue, notwithstanding the expiry or termination of this Agreement:

(a) in relation to an item of information described in the Schedule – for the period set out in the Schedule in respect of that item; and

(b) in relation to any information which the Parties agree in writing after the Date of this Agreement is to constitute Confidential Information for the purposes of this Agreement – for the period agreed by the Organisation and the Commonwealth in writing in respect of that information.

14.10 Nothing in this clause 14 derogates from any obligation which the Organisation may have either under the Privacy Act, or under this Agreement, in relation to the protection of Personal Information.

15. PROTECTION OF PERSONAL INFORMATION15.1 This clause 15 applies only where the Organisation deals with Personal

Information when, and for the purpose of, conducting the Activity under this Agreement.


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15.2 The Organisation agrees to be treated as a 'contracted service provider' within the meaning of section 6 of the Privacy Act, and agrees in respect to the conduct of the Activity under this Agreement:

(a) to use or disclose Personal Information obtained during the course of conducting the Activity under this Agreement only for the purposes of this Agreement;

(b) not to do any act or engage in any practice that would breach an Australian Privacy Principle (APP) contained in section 14 of the Privacy Act, which if done or engaged in by an agency, would be a breach of that APP;

(c) to carry out and discharge the obligations contained in the APPs as if the Organisation were an agency under that Act;

(d) to notify individuals whose Personal Information the Organisation holds, that complaints about the Organisation’s acts or practices may be investigated by the Privacy Commissioner who has power to award compensation against the Organisation in appropriate circumstances;

(e) not to use or disclose Personal Information or engage in an act or practice that would breach a registered APP Code, where that registered APP Code is applicable to the Organisation.

(f) to immediately notify the Department if the Organisation becomes aware of a breach or possible breach of any of the obligations contained in, or referred to in, this clause 15, whether by the Organisation or any Subcontractor; and

(h) to ensure that any of the Organisation’s employees, officers, Advisers or volunteers who are required to deal with Personal Information for the purposes of this Agreement are made aware of the Organisation’s obligations set out in this clause 15.

15.3 The Organisation agrees to ensure that any subcontract entered into for the purpose of fulfilling the Organisation’s obligations under this Agreement contains provisions to ensure that the Subcontractor has the same awareness and obligations as the Organisation has under this clause, including the requirement in relation to subcontracts.

15.4 The Organisation agrees to indemnify the Commonwealth in respect of any loss, liability or expense suffered or incurred by the Commonwealth which arises directly or indirectly from a breach of any of the Organisation’s obligations under this clause 15, or a Subcontractor under the subcontract provisions referred to in subclause 15.3.

15.5 In this clause 15, the terms 'agency', 'registered APP Code’, and 'Australian Privacy Principles' (APPs) have the same meaning as they have in section 6 of the Privacy Act, and ‘subcontract’ and other grammatical forms of that word has the meaning given in section 95B(4) of the Privacy Act.


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16. INDEMNITY16.1 The Organisation indemnifies (and keeps indemnified) the Commonwealth

against any:

(a) loss or liability incurred by the Commonwealth;

(b) loss of or damage to the Commonwealth’s property; or

(c) loss or expense incurred by the Commonwealth in dealing with any claim against the Commonwealth (whether or not successful), including legal costs and expenses on a solicitor/own client basis and the cost of time spent, resources used, or disbursements paid by the Commonwealth;

arising from:

(d) any act or omission by the Organisation, its employees, agents, volunteers, Advisers, Subcontractors and Proponents in connection with this Agreement, where there was fault on the part of the person whose conduct gave rise to that liability, loss, damage, or expense;

(e) any breach by the Organisation of its obligations or warranties under this Agreement, or any breach by a Proponent of its contract with the Organisation;

(f) the use of the Assets by the Organisation or a Proponent; or

(g) the use by the Commonwealth of the Activity Material or Existing Material, including any claims by third parties (including a subcontractor) about the ownership or right to use Intellectual Property Rights in Activity Material or Existing Material.

16.2 The Organisation’s liability to indemnify the Commonwealth under this clause 16 will be reduced proportionally to the extent that any fault on the Commonwealth’s part contributed to the relevant loss, damage, expense, or liability.

16.3 The Commonwealth’s right to be indemnified under this clause 16 is in addition to, and not exclusive of, any other right, power, or remedy provided by law, but the Commonwealth is not entitled to be compensated in excess of the amount of the relevant liability, damage, loss, or expense.

16.4 In this clause 16, “fault” means any negligent or unlawful act or omission or wilful misconduct.

17. INSURANCE17.1 The Organisation must, for as long as any obligations remain in connection

with this Agreement, have the insurance specified in the Schedule in respect of the Activity including the Proponents' Sub-Projects. The Organisation must ensure that each of its Proponents has the insurance specified in the Schedule in respect of a Proponent’s Sub-Project.


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17.2 Whenever requested, the Organisation must provide the Department, within 10 Business Days of the request, with evidence that is satisfactory to the Department (including a copy of the policy wording if required) that the Organisation maintains the insurances referred to in subclause 17.1.

17.3 All insurance under this clause 17 and paragraph 7.4(d) is to be taken out with an insurer recognised by the Australian Prudential Regulation Authority or regulated by a State/Territory Auditor-General.

18. CONFLICT OF INTEREST18.1 The Organisation warrants that, to the best of its knowledge after making

diligent inquiry, at the Date of this Agreement no Conflict exists or is likely to arise in the performance of the Organisation’s obligations under this Agreement or a Proponents' performance of its Sub-Project under its contract with the Organisation.

18.2 Without limiting the operation of this clause 18, the Organisation must, during the Term of this Agreement, ensure that no Conflict arises through the Organisation’s or its Proponent’s involvement with the parties or programs, if any, specified in the Schedule.

18.3 If during the Term of this Agreement, a Conflict arises in respect of the Organisation or a Proponent, the Organisation must:

(a) immediately notify the Department in writing of that Conflict and of the steps the Organisation and/or the Proponent proposes to take to resolve or otherwise deal with the Conflict;

(b) make full disclosure to the Department of all relevant information relating to the Conflict; and

(c) take such steps as the Department may, if it chooses to, reasonably require to resolve or otherwise deal with that Conflict.

18.4 If the Organisation fails to notify the Department under this clause 18, or is unable or unwilling to resolve or deal with the Conflict as required, the Commonwealth may:

(a) where the Conflict directly involves the Organisation - terminate this Agreement in accordance with clause 22; or

(b) where the Conflict involves a Proponent - reduce the scope of this Agreement under subclause 21.7.

19. ACCESS TO PREMISES AND RECORDS19.1 The Organisation must give the Auditor-General, the Ombudsman, the

Information Commissioner, the Privacy Commissioner, the Freedom of Information Commissioner (or their delegates for the purpose of each performing their functions or activities as the case may be). and persons authorised by the Commonwealth (referred to in this clause 19 collectively as ‘those permitted’) access to premises at which Records and Material


26

associated with this Agreement are stored or work under the Activity is undertaken at all reasonable times and allow those permitted to inspect and copy Records and Material, in the Organisation’s possession or control, for purposes associated with this Agreement or any review of performance under this Agreement. The Organisation must also give those permitted access to any Assets, wherever they may be located, and reasonable access to the Organisation’s employees, for the same purposes.

19.2 The Organisation must provide all reasonable assistance requested by those permitted when they exercise the rights under subclause 19.1 including:

(a) making available all information, documentation and data, in any medium, required by the Commonwealth; and

(b) making available the Organisation’s employees, officers, volunteers and Advisors who must provide access to the Organisation’s computer Records and copies of documentation, including computer discs or other forms of electronic data.

19.3 The rights referred to in subclause 19.1 are subject to:

(a) the provision of reasonable prior notice by those permitted (except where they believe that there is an actual or apprehended breach of the law); and

(b) the Organisation’s reasonable security procedures.

19.4 The requirement for access as specified in subclause 19.1 does not in any way reduce the Organisation’s responsibility to perform the Organisation’s obligations in accordance with this Agreement.

19.5 The Organisation must ensure that any subcontract entered into for the purpose of this Agreement contains an equivalent clause allowing those permitted to have access as specified in this clause 19.

19.6 In addition to any other obligation under this Agreement, the Organisation must give persons authorised by the Commonwealth access to, or arrange for access to be given to, locations where the Organisation or a Proponent will undertake, is undertaking or has undertaken a Sub-Project, Project or Activity (as the case may be). The Department may, at its absolute discretion, exercise rights under this clause for any reasonable purpose including to ascertain whether:

(a) the Organisation and/ or a Proponent is aware of its obligations under clause 25 [Compliance with laws and Policies]; and/or

(b) the Organisation and/ or a Proponent is completing the Activity, the Project or a Sub-Project (as the case may be) in accordance with the requirements of this Agreement (including any requirements identified in the Schedule, a Sub-Project Type Schedule or a Sub-Project Plan),

but any such inspection or review by the Commonwealth under this clause will not oblige or otherwise diminish the Organisation’s or a Proponent’s


27

responsibilities for complying with those requirements under this Agreement or at law.

19.7 Nothing in this Agreement reduces, limits or restricts in any way any function, power, right or entitlement of the Auditor-General, Ombudsman, Information Commissioner, Privacy Commissioner or Freedom of Information Commissioner or their delegates. The rights of the Commonwealth under this Agreement are in addition to any other power, right or entitlement of the Auditor-General, Ombudsman Information Commissioner, Privacy Commissioner or Freedom of Information Commissioner or their delegates.

20. DELAY20.1 The Organisation must take all reasonable steps to minimise delay in

completion of the Activity and ensure that its Proponents take all reasonable steps to minimise delay in the completion of their Sub-Projects.

20.2 If performance by a Party of its obligations under this Agreement is delayed or prevented due to any circumstances beyond its reasonable control, then that Party shall be excused from performance of such obligations for as long as the delay or prevention continues provided the relevant Party uses, and for the duration of the delay continues to use, its best endeavours to minimise the occurrence and consequences of the delay.

20.3 If the Organisation becomes aware that it will be delayed in progressing or completing the Activity in accordance with this Agreement, or a Proponent will be delayed in progressing or completing its Sub-Project, the Organisation must immediately notify the Department in writing of the cause and nature and likely extent of the delay. The Organisation is to detail in the notice the steps it and/or its Proponents will take to contain the delay.

20.4 Notwithstanding subclause 20.2, on receipt of a notice of delay, the Commonwealth will discuss the matter with the Organisation and may at its sole option:

(a) notify the Organisation in writing of a period of extension to complete the Activity and vary this Agreement accordingly;

(b) notify the Organisation in writing of a reduction in the scope of the Activity and any adjustment to the Funds for the Organisation to complete the reduced Activity and vary this Agreement accordingly; or

(c) (where the Commonwealth acting reasonably determines that, as a result of such delay, the Organisation is unable to achieve the Objectives) terminate this Agreement under clause 22 or take such other steps as are available under this Agreement.

20.5 Except to the extent that the Commonwealth takes action under subclause 20.4, the Organisation is required to comply, and must ensure that its


28

Proponents comply, with the time frame for progressing and completing the Activity as set out in this Agreement.

20.6 If the Organisation does not notify the Department of any delay in progressing or completing the Activity (including a Project or Sub-Project) in accordance with subclause 20.3 the Commonwealth may, at its sole discretion and acting reasonably, terminate this Agreement under clause 22.

21. TERMINATION WITH COSTS AND REDUCTION IN SCOPE 21.1 The Commonwealth may, at any time by written notice to the Organisation,

terminate this Agreement or reduce the scope of this Agreement without prejudice to the rights, liabilities, or obligations of either Party accruing prior to the date of termination. If this Agreement is terminated or reduced in scope the Commonwealth will only be liable for:

(a) subject to subclauses 21.3 and 21.4, payments under the payment provisions of this Agreement; and

(b) subject to subclauses 21.4, 21.5, 21.6 and 21.7, any reasonable costs incurred by the Organisation and directly attributable to the termination of this Agreement or reduction in scope of the Agreement.

21.2 Upon receipt of a notice of termination or reduction in scope the Organisation must:

(a) cease or reduce the performance of the Organisation’s obligations under this Agreement in accordance with the notice;

(b) immediately do everything possible to mitigate all losses, costs, and expenses, arising from the termination or reduction in scope contained in the notice;

(c) immediately return to the Commonwealth any Funds in accordance with paragraph 21.3(b) or clause 21.4 or otherwise deal with any such Funds as the Commonwealth may direct in writing; and

(d) ensure that its Subcontractors are required to comply with the requirements of this subclause to the extent necessary to give effect to the notice issued by the Commonwealth.

21.3 Where the Commonwealth terminates this Agreement under subclause 21.1 the Commonwealth:

(a) will not be obliged to pay to the Organisation any outstanding amount of the Funds except to the extent that those monies have been legally and irrevocably committed for expenditure by the Organisation in accordance with this Agreement (or a Proponent in accordance with its contract with the Organisation) and are payable as a current liability (written evidence of which will be required) by the date on which the notice of termination given under subclause


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21.1 is deemed to be received in accordance with subclause 35.2; and

(b) will be entitled to recover from the Organisation any part of the Funds which:

(i) has not been legally and irrevocably committed for expenditure by the Organisation in accordance with this Agreement (or a Proponent in accordance with its contract with the Organisation) as a current liability (written evidence of which will be required) by the date on which the notice of termination given under subclause 21.1 is deemed to be received in accordance with subclause 35.2; or

(ii) has not, in the Commonwealth’s opinion, been expended by the Organisation in accordance with the terms and conditions of this Agreement or by a Proponent in accordance with the terms and conditions in its contract with the Organisation,

and all such Funds will, without prejudice to any other rights available to the Commonwealth under this Agreement or at law or in equity, be regarded as a debt due to the Commonwealth by the Organisation capable of being recovered as such in any court of competent jurisdiction.

21.4 If there is a reduction in scope of the obligations under this Agreement:

(a) the Commonwealth’s liability to pay any part of the Funding will, in the absence of the written agreement of the Parties to the contrary, abate proportionately to the reduction in the Organisation's obligations under this Agreement; and

(b) the Commonwealth will be entitled to recover from the Organisation any Funds that were provided for the part of the Activity that has been removed by the reduction in scope that:

(i) have not been legally and irrevocably committed for expenditure by the Organisation in accordance with this Agreement (or a Proponent for its Sub-Project in accordance with its contract with the Organisation) as a current liability (written evidence of which will be required) by the date on which the notice of the reduction in scope given under subclause 21.1 is deemed to be received in accordance with subclause 35.2; or

(ii) have not, in the Commonwealth’s opinion, been spent by the Organisation in accordance with the terms and conditions of this Agreement or by a Proponent for its Sub-Project in accordance with the terms and conditions in its contract with the Organisation.

21.5 The Commonwealth’s liability to pay any compensation under or in relation to this clause 21 is subject to:


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(a) the Organisation’s strict compliance with this clause 21;

(b) each Proponent’s strict compliance with the requirements in its contract with the Organisation that are equivalent to the requirements in this clause 21;

(c) the Organisation’s substantiation of any amount claimed under paragraph 21.1(b); and

(d) the Organisation agreeing that the Commonwealth is not required to return to the Organisation or a Proponent any Water Access Entitlement(s) that have been Assigned to the Commonwealth.

21.6 The Commonwealth will not be liable to pay compensation for loss of prospective profits for a termination or reduction in scope under this clause 21 or loss of any benefits that would have been conferred on the Organisation or a Proponent had the termination or reduction not occurred.

21.7 Notwithstanding anything else in this Agreement, if a Proponent has materially breached its contract with the Organisation, the Commonwealth:

(a) may require, by written notice, that the Organisation immediately terminates its contract with that Proponent;

(b) will not be obliged to pay to the Organisation any outstanding amount of the Funds in respect of the Proponent except to the extent that those monies have been legally and irrevocably committed for expenditure by the Proponent on its Sub-Project in accordance with its contract with the Organisation and are payable by the Proponent as a current liability (written evidence of which will be required) by the date on which the notice of termination given under paragraph 21.7(a) is deemed to be received by the Organisation in accordance with subclause 35.2;

(c) may require the Organisation to repay an amount of Funds, which is equivalent to the amount of Funds the Proponent has received but has not, in the Commonwealth's opinion:

(i) spent for its Sub-Project in accordance with its contract with the Organisation; or

(ii) legally and irrevocably committed as a current liability (written evidence of which will be required) for its Sub-Project in accordance with its contract with the Organisation,

by the date on which the notice given under paragraph 21.7(a) is deemed to be received by the Organisation in accordance with subclause 35.2; and

(d) may reduce the scope of the Agreement to remove the Proponent and its Sub-Project from the Activity and reduce the Funding accordingly,

without any compensation being payable under this Agreement.


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22. TERMINATION FOR DEFAULT22.1 If:

(a) the Organisation fails to fulfil, or is in breach of, any of its obligations under this Agreement and does not rectify the failure or breach within 20 Business Days of receiving a notice in writing from the Department to do so;

(b) the Organisation is unable to pay all of its debts as and when they become due and payable or the Organisation fails to comply with a statutory demand within the meaning of sections 459E and 459F of the Corporations Act 2001 (Cth);

(c) the Organisation has applied to come under, received a notice requiring it to show cause why it should not come under, or has otherwise come under one of the forms of external administration referred to in Chapter 5 of the Corporations Act 2001 (Cth) or equivalent provisions in Incorporated Associations legislation of the States and Territories, or an order has been made for the purpose of placing the Organisation under external administration;

(d) in relation to this Agreement, the Organisation breaches any law of the Commonwealth, or of a State or Territory;

(e) the Organisation ceases to carry on business;

(f) the Department is reasonably satisfied at any time that any statement made in the Organisation’s application for Funding is incorrect, incomplete, false or misleading in a way which would have affected the original decision to approve the Funding;

(g) the Department is reasonably satisfied at any time that the Organisation is unable to perform the Activity in accordance with this Agreement;

(h) notice is served on the Organisation or any proceedings are taken to wind up the Organisation or cancel the Organisation’s incorporation or registration or to dissolve the Organisation as a legal entity;

(i) the Organisation breaches an Environmental Arrangement;

(j) the Department is not reasonably satisfied that the purposes and activities of the Organisation remain compatible with the Program or Activity;

(k) the Organisation, by written notice to the Department, withdraws from the Activity; or

(l) the Commonwealth acting reasonably considers that:

(i) more than one Proponent is unable to perform its Sub-Project; and/or has breached its obligations in its contract with

the Organisation; and


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(ii) the Organisation has not provided a satisfactory written response to the Department addressing the matter within

20 Business Days of receiving a notice in writing from the Department to do so,

then, in the case of any one or more of these events, the Commonwealth may immediately terminate this Agreement by giving written notice to the Organisation of the termination.

22.1A Where the Commonwealth terminates this Agreement in the case of any one or more of the events specified in paragraphs 22.1(a) to (k), the Commonwealth will use reasonable endeavours to appoint a successor entity to perform the Activity.

22.2 Where the Commonwealth terminates this Agreement under subclause 22.1, the Commonwealth:

(a) will not be obliged to pay to the Organisation any outstanding amount of the Funds except to the extent that those monies have been legally and irrevocably committed for expenditure by the Organisation in accordance with this Agreement (or by a Proponent for its Sub-Project in accordance with its contract with the Organisation) and are payable as a current liability (written evidence of which will be required) by the date on which the notice of termination given under subclause 22.1 is deemed to be received in accordance with subclause 35.2; and

(b) will be entitled to recover from the Organisation any part of the Funds which:

(i) has not been legally and irrevocably committed for expenditure by the Organisation in accordance with this Agreement (or a Proponent for its Project in accordance with its contract with the Organisation) as a current liability (written evidence of which will be required) by the date on which the notice of termination given under subclause 22.1 is deemed to be received in accordance with subclause 35.2; or

(ii) has not, in the Commonwealth’s opinion, been expended by the Organisation in accordance with the terms and conditions of this Agreement (or a Proponent for its Sub-Project in accordance with the terms and conditions of its contract with the Organisation).

22.3 If the Organisation does not repay to the Commonwealth the amount referred to in clause 21.7 or paragraph 22.2(b) within 10 Business Days of receipt of the notice provided under 21.7 or 22.1 (or if a different period is stated in the notice, that period) the Organisation must also pay the Commonwealth Interest on the outstanding amount which the Organisation acknowledges represents a reasonable pre-estimate of the loss incurred by the Commonwealth as a result of the loss of investment opportunity for, or the


33

reasonable cost of borrowing other money in place of, the amount which should have been repaid. The amount set out in the notice, and Interest owed under this clause will, without prejudice to any other rights available to the Commonwealth under this Agreement or at law or in equity, be recoverable by the Commonwealth, at its sole discretion, as a debt due to the Commonwealth by the Organisation.

22.4 Subclause 22.2 does not limit or exclude any of the Commonwealth’s other rights, including the right to recover any other amounts from the Organisation on termination of this Agreement.

23. SUBCONTRACTING23.1 The Organisation must not, without the Department’s prior written approval,

subcontract the performance of any obligations under this Agreement. In giving written approval, the Department may impose such terms and conditions as the Department think fit. The Department's approval of a Subcontractor may be specified in the Schedule.

23.2 The Organisation is fully responsible for the performance of all of its obligations under this Agreement, even though the Organisation may have subcontracted any of them.

23.3 Despite any approval given by the Department under subclause 23.1, the Organisation is responsible for ensuring the suitability of a Subcontractor for the work proposed to be carried out and for ensuring that such work meets the requirements of this Agreement.

23.4 The Organisation must ensure that any subcontract placed with a Subcontractor:

(a) is consistent with, and gives effect to, the Organisation’s obligations in this Agreement; and

(b) reserves a right of termination to take account of the Commonwealth’s right of termination under clauses 21 or 22, and the Organisation must, where appropriate, make use of that right in the event of a termination or revocation by the Commonwealth.

23.5 The Organisation must not enter into a subcontract under this Agreement with a Subcontractor named by the Workplace Gender Equality Agency as an employer currently not complying with the Workplace Gender Equality Act 2012 (Cth).

24. ACKNOWLEDGMENT AND PUBLICITY24.1 The Organisation must obtain the Department’s written approval for each

public announcement, or publication issued by, the Organisation or a Proponent that relates to the Activity, the Funding or this Agreement prior to the making of that announcement or issuing of that publication. In all publications, promotional and advertising materials, public announcements and public activities the Organisation must, and must ensure that its


34

Proponents, acknowledge the financial and other support provided by the Commonwealth for the Activity, in the form and containing the information which must be approved by the Department prior to the issuing of the publication, material, announcement or undertaking of the public activity.

24.2 The Department reserves the right to publicise and report on the awarding of Funding for the Activity. The Department may do this by including in media releases, general announcements about the Funding and in annual reports:

(a) the Organisation’s name;

(b) the amount of the Funds provided; and

(c) the title and a brief description of the Activity, the Project and Sub-Projects (including the Commonwealth’s Share of the Agreed Water Savings).

The Department will obtain the Organisation’s prior written consent to any publication and reporting on:

(d) the amount of Funding provided to a particular Proponent; and

(e) the volume of Water Access Entitlement(s) that a particular Proponent is required to Assign.

24.3 Where the Organisation or a Proponent has been provided with Funding to produce any publication, the Organisation must provide a copy of the publication to the Department.

25. COMPLIANCE WITH LAWS AND OUR POLICIES25.1 In carrying out its obligations under this Agreement the Organisation must

comply, and must ensure that its Subcontractors and Proponents, comply, with the provisions of all relevant statutes, regulations, by-laws and requirements of any Commonwealth, State, Territory or local authority.

25.2 In carrying out its obligations under this Agreement, the Organisation must comply, and must ensure that each Proponent complies, with any of the Commonwealth’s policies as notified, referred to, or made available, by the Commonwealth to the Organisation in writing, including those specified in Item 12A of the Schedule.

26. NEGATION OF LEGAL RELATIONSHIP OF EMPLOYMENT, PARTNERSHIP AND AGENCY

26.1 The Organisation, its employees, officers, volunteers, partners, Advisers will not, by virtue of this Agreement, be or for any purpose be deemed to be the Commonwealth’s legal employees, partners or agents.

26.2 The Organisation must not, and must ensure that its employees, officers, volunteers, partners, or Advisers do not, represent the Organisation or themselves as being the Commonwealth’s employees, officers, volunteers, partners or Advisers or as otherwise able to bind or represent the Commonwealth.


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27. ENTIRE AGREEMENT, VARIATION AND SEVERANCE27.1 This Agreement records the entire agreement between the Parties in relation

to its subject matter.

27.2 Except for action the Commonwealth is expressly authorised to take elsewhere in this Agreement, no variation of this Agreement is binding unless it is agreed in writing and signed by the Parties.

27.3 If a court or tribunal says any provision of this Agreement has no effect or interprets a provision to reduce an obligation or right, this does not invalidate any other provision.

28. SURVIVING TERMS28.1 The obligations in clauses 5, 7 to 17 inclusive, 32 and 39 survive the Term

of this Agreement.

28.2 The obligations in clauses 19 and 24 survive the Term of this Agreement for 7 years.

29. WAIVER29.1 If either Party does not exercise (or delays in exercising) any of its rights,

that failure or delay does not operate as a waiver of those rights.

29.2 A single or partial exercise by a Party of any of its rights does not prevent the further exercise of any right.

29.3 Waiver of any provision of, or right under, this Agreement:

(a) must be in writing signed by the Party entitled to the benefit of that provision or right; and

(b) is effective only to the extent set out in the written waiver.

29.4 In this clause 29, ‘rights’ means rights or remedies provided by this Agreement or at law.

30. ASSIGNMENT AND NOVATION30.1 The Organisation must not assign its rights under this Agreement, and must

ensure that a Proponent does not assign its rights under its contract with the Organisation, without prior written approval from the Department. This subclause 30.1 does not apply to any amalgamation.

30.2 The Organisation agrees not to enter into negotiations with any other person for the purposes of entering into an arrangement that will require novation of this Agreement without first obtaining the prior written approval of the Department.

31. CORPORATE GOVERNANCE31.1 The Organisation must inform the Department whenever there is a change in

its Constitution, structure, management or operations which could reasonably


36

be expected to affect its eligibility for the Funding or have an adverse effect on the Organisation’s ability to comply with its obligations under this Agreement.

31.2 The Organisation agrees not to employ or engage any person in its management or financial administration of the Activity if:

(a) the person is an undischarged bankrupt;

(b) there is in operation a composition, deed of arrangement or deed of assignment with the person’s creditors under the law relating to bankruptcy;

(c) the person has suffered final judgment for a debt and the judgment has not been satisfied;

(d) subject to part VIIC of the Crimes Act 1914 (Cth), the person:

(i) has been convicted of an offence within the meaning of paragraph 85ZM(1) of that Act unless:

A. that conviction is regarded as spent under paragraph 85ZM(2) (taking into consideration the application of Division 4 of part VIIC);

B. the person was granted a free and absolute pardon because the person was wrongly convicted of the offence; or

C. the person’s conviction for the offence has been quashed; or

(ii) is or was a Director or occupied an influential position in the management or financial administration of an organisation that had failed to comply with funding requirements of the Commonwealth; or

(e) the person is otherwise prohibited from being a member or Director or employee or responsible officer of the Organisation.

31.3 Where a person falls or is discovered as falling within any of paragraphs 31.2 while employed or engaged by the Organisation, the Organisation must immediately notify the Department and take all actions required by the Department to ensure the person ceases to have any involvement in the Activity. If the Department is not satisfied with the actions taken by the Organisation, the Commonwealth may terminate this Agreement.

31.4 If the Organisation is registered under the Corporations Act 2001 (Cth), in the event that it applies to come under, receives a notice requiring it to show cause why it should not come under, receives a notice or an application from any other person for it to come under or has otherwise come under one of the forms of external administration referred to in chapter 5 of the Corporations Act 2001 or an order has been made for the purpose of placing the Organisation under external administration, the Organisation agrees to inform the Department in writing within 5 Business Days of the date of the


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making or receipt of such a notice or application or the making of such an order.

32. DISPUTE RESOLUTION32.1 Subject to subclause 32.3, both Parties agree not to commence any legal

proceedings in respect of any dispute arising under this Agreement, which cannot be resolved by informal discussion, until the procedure provided by this clause has been utilised.

32.2 Both Parties agree that any dispute arising during the course of this Agreement is dealt with as follows:

(a) the Party claiming that there is a dispute will send the other a written notice setting out the nature of the dispute;

(b) the Parties will try to resolve the dispute though direct negotiation by persons who they have given authority to resolve the dispute;

(c) the Parties have 10 Business Days from the receipt of the notice to reach a resolution or to agree that the dispute is to be submitted to mediation or some alternative dispute resolution procedure; and

(d) if:

(i) there is no resolution of the dispute;

(ii) there is no agreement on submission of the dispute to mediation or some alternative dispute resolution procedure; or

(iii) there is a submission to mediation or some other form of alternative dispute resolution procedure, but there is no resolution within 15 Business Days of the submission, or such extended time as the Parties may agree in writing before the expiration of the 15 Business Days,

then, either Party may commence legal proceedings.

32.3 This clause 32 does not apply to the following circumstances:

(a) either Party commences legal proceedings for urgent interlocutory relief;

(b) action by the Commonwealth under or purportedly under clauses 4, 5, 19, 20, 21 or 22;

(c) an authority of the Commonwealth, a State or Territory is investigating a breach or suspected breach of the law by the Organisation or a Proponent.

32.4 Despite the existence of a dispute, both Parties must (unless requested in writing by the other Party not to do so) continue to perform their respective obligations in accordance with this Agreement.

32.5 The Organisation must ensure that each contract with a Proponent includes a dispute resolution clause that contains a dispute resolution process for use as


38

between the Organisation and the Proponent that is substantially the same as the dispute resolution process between the Organisation and the Commonwealth outlined in this clause 32.

32.6 The Organisation must inform the Commonwealth of any significant dispute between the Organisation and a Proponent. The Commonwealth will not however, be responsible for mediating or resolving any such dispute.

33. APPLICABLE LAW AND JURISDICTION33.1 The laws of [Insert relevant state - e.g. NSW, Victoria, South Australia]

apply to this Agreement.

33.2 Both Parties agree to submit to the non-exclusive jurisdiction of the courts of [Insert relevant state - e.g. NSW, Victoria, South Australia] in respect to any dispute under this Agreement.

34. LIAISON AND MONITORING34.1 The Organisation must:

(a) liaise with and provide information to the Department as reasonably required by the Department; and

(b) comply with all the Commonwealth’s reasonable requests, directions, or monitoring requirements.

34.2 At the Date of this Agreement, the Parties' representatives for the purpose of this clause 34 are the persons specified in Item 13 of the Schedule.

35. NOTICES35.1 A Party giving notice or notifying under this Agreement must do so in

writing or by electronic mail or facsimile transmission:

(a) directed to the recipient's address, as varied by any notice; and

(b) hand delivered or sent by pre-paid post or transmitted by electronic mail or facsimile transmission (‘electronically’) to that address. If a notice is sent electronically a confirmatory copy is also to be sent to the addressee by pre-paid post.

The Parties' address details as at the Date of this Agreement are specified in the Schedule.

35.2 A notice given in accordance with subclause 35.1 is taken to be received:

(a) if hand delivered, on delivery;

(b) if sent by pre-paid post (other than a confirmatory copy of a notice sent by other means), 5 Business Days after the date of posting unless it has been received earlier; or

(c) if transmitted electronically, upon actual receipt by the addressee.


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36. BUILDING CODE 201336.1 In this clause 36:

(a) ‘the Building Code’ means the Building Code 2013. The Building Code can be downloaded from https://employment.gov.au/building-code-2013;

(b) ‘the Supporting Guidelines’ means the Supporting Guidelines for Commonwealth Funding Entities to the Building Code 2013. The Supporting Guidelines can be downloaded from https://employment.gov.au/building-code-2013; and

(c) ‘the Project Parties’ means all contractors, Subcontractors, consultants and employees who perform on site work in relation to the Activity, the Project or a Sub-Project.

36.2 Where the Funding specifically relates to building and construction activity, subject to the thresholds specified in the Building Code, the Organisation must comply and ensure that the Proponents and Project Parties comply with the Building Code.

36.3 The Building Code requires the Organisation to ensure that:

(a) all requests for tender, expressions of interest, submissions and invitations to join common use arrangements in relation to the Activity, the Project or a Sub-Project made by it, or any of the Proponents or Project Parties, contain the commitment to apply the Building Code as set out in the model tender documents; and

(b) all contracts entered into in relation to the Activity, the Project or a Sub-Project by it, or any of the Proponents or Project Parties, contain the commitment to apply the Building Code as set out in the model contract clauses.

36.4 The Organisation must maintain adequate records of compliance by it, and each of the Proponents and Project Parties, with the Building Code. The Organisation must permit the Commonwealth and those authorised by the Commonwealth, including a person occupying a position in the Fair Work Building Industry Inspectorate, full access to the premises and records of the Organisation, the Proponents and Project Parties to:

(a) inspect any work, material, machinery, appliance, article or facility;

(b) inspect and copy any record relevant to the Activity, the Project, Sub-Projects and works governed by this Agreement; and

(c) interview any person,

as is necessary to monitor compliance with the Building Code.

36.5 Additionally, the Organisation undertakes that it and each of the Proponents and Project Parties will agree to a request from the Commonwealth, including a person occupying a position in the Fair Work Building Industry


40

Inspectorate, to produce a specified document within a specified period, in person, by fax or by post.

36.6 The Commonwealth and those authorised by it, may publish or otherwise disclose information in relation to compliance by the Organisation, the Proponents and Project Parties with the Building Code. The Organisation must obtain the consent of the Proponents and Project Parties to the publication or disclosure of information under this clause.

36.7 While acknowledging that value for money is the core principle underpinning decisions on government procurement, when assessing tenders the Organisation may preference Proponents, contractors, Subcontractors and consultants that have a demonstrated commitment to:

(a) adding and/or retaining trainees and apprentices;

(b) increasing the participation of women in all aspects of the industry; or

(c) promoting employment and training opportunities for Indigenous Australians in regions where significant indigenous populations exist.

36.8 The Organisation must not appoint a Proponent, contractor, Subcontractor or consultant in relation to the Activity, the Project or a Sub-Project where:

(a) the appointment would breach a sanction imposed by the Commonwealth Minister for Employment; or

(b) the Proponent, contractor, Subcontractor or consultant has had a judicial decision against them relating to employee entitlements, not including decisions under appeal, and has not paid the claim.

37. COMPLIANCE WITH THE AUSTRALIAN GOVERNMENT BUILDING AND CONSTRUCTION OHS ACCREDITATION SCHEME

37.1 In this clause:

(a) ‘the Act’ means the Fair Work (Building Industry) Act 2012 (Cth);

(b) ‘Builder’ has the same meaning as it has in section 35 of the Act;

(c) ‘Building Work’ has the same meaning as it has in section 5 of the Act;

(d) ‘the Regulations’ means the Fair Work (Building Industry - Accreditation Scheme) Regulations 2005; and

(e) ‘Scheme’ means the Australian Government Building and Construction OHS Accreditation Scheme established under the Act.

37.2 Subject to exclusions specified in the Regulations, construction projects that use funds provided under this Agreement are bound by the application of the Scheme.


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37.3 The Organisation must ensure that all contracts that it enters into, and all contracts that Proponents enter into, for Building Work as a part of the Activity that are valued at $3 million or more:

(a) are notified to the Office of the Federal Safety Commissioner at the earliest possible opportunity (that is, when approaching the market); and

(b) contain a requirement that the Builder:

(i) is accredited under the Scheme;

(ii) maintains Scheme accreditation for the life of the contract; and

(iii) must comply with all conditions of the Scheme accreditation.

37.4 The Organisation agrees to notify the Department immediately if that Builder has ceased, or is likely to cease, to meet the accreditation requirements in paragraph 37.3(b).

37.5 The Organisation must maintain adequate records of compliance by it, and each of the Proponents, with the Scheme.

38. COMPLIANCE WITH THE WATER MARKET, CHARGE AND TRADING RULES

38.1 In this clause:

(a) ‘irrigation infrastructure operator’ and ‘irrigation right’ have the meaning given to those terms in the Water Act;

(b) ‘the Water Act’ means the Water Act 2007 (Cth);

(c) ‘the water market rules’ means the Water Market Rules 2009 made under Section 97 the Water Act as varied from time to time;

(d) ‘the termination fees rules’ means the Water Charge (Termination Fees) Rules 2009 made under Section 92 the Water Act as varied from time to time;

(e) ‘the water infrastructure charge rules’ means the Water Charge (Infrastructure) Rules 2010 made under Section 92 the Water Act as varied from time to time;

(f) ‘the water charge planning and management information rules’ means the Water Charge (Planning and Management Information) Rules 2010 made under Section 92 the Water Act as varied from time to time;

(g) ‘the water trading rules’ means Chapter 12 of the Basin Plan 2012 adopted by the Minister under section 44 of the Water Act as varied from time to time.

38.2 The Organisation must comply with the water market rules, the termination fees rules, the water infrastructure charge rules, the water charge planning


42

and management information rules and the water trading rules to the extent that the rules apply to the Organisation.

38.3 This subclause applies to an Organisation to the extent that the water market rules, the termination fees rules, the water infrastructure charge rules, the water charge planning and management information rules and the water trading rules do not otherwise apply to the Organisation. An Organisation to which this subclause applies must take all reasonable steps to act as though the water market rules, the termination fees rules, the water infrastructure charge rules, the water charge planning and management information rules and the water trading rules applied to it.

38.4 This subclause applies to an Organisation which operates a joint water supply scheme under which the members of the scheme jointly hold a Water Access Entitlement. For the purposes of clause 38.3 the water market rules, the termination fees rules, the water infrastructure charge rules, the water charge planning and management information rules and the water trading rules should be applied by the Organisation as though the Organisation is an irrigation infrastructure operator and a person who has an entitlement to water under the co-held Water Access Entitlement has an irrigation right against the Organisation.

38.5 An Organisation to which subclauses 38.3 and 38.4 apply must, if requested by the Department, provide to the Department written reports and other documents or information relating to the requirements in subclauses 38.3 and 38.4:

(a) in the form and manner; and

(b) at the times,

specified by the Department.

39. REVIEW39.1 The Organisation agrees to provide, and ensure its Proponents provide, all

reasonable assistance required by the Commonwealth in relation to conducting a review and final evaluation of the Program.

40. ANIMAL ETHICS40.1 The Organisation agrees to comply, and ensure that each Proponent

complies, with any legislation, regulations, guidelines and/or codes of practice relating to animal welfare in force in the States or Territories where the Activity is to be carried out.

40A. TRANSFER OF RIGHT, TITLE AND INTEREST IN LAND 40A.1 Subject to subclause 40A.2, nothing in this Agreement shall prevent a

Proponent from Disposing or encumbering their rights, title or interest in Proponent Land affected by:

(a) this Agreement;


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(b) a Contract between the Organisation and a Proponent; or

(c) the Activity.

40A.2 The Organisation agrees to ensure that any Contract it enters into with a Proponent provides that the Proponent must not Dispose of or encumber the Proponent Land without:

(a) obtaining the Organisation’s prior consent to the Disposal and/ or encumbrance;

(b) providing the Organisation with a copy of any instrument effecting a Disposal and/ or encumbrance; and

(c) ensuring that any such instrument contains provisions (in a form acceptable to the Commonwealth and as set out in Item 15) under which the purchaser, transferee, lessee, mortgagee or chargee (as the case may be) (the third party or third parties), covenants in favour of the Organisation that they have satisfied themselves of the terms of this Funding Agreement, and:

(i) where a third party is a purchaser, transferee or lessee, warrants that it will:

(A) comply with the terms of the Contract;

(B) use the Proponent Land to deliver the Sub-Project; and

(ii) where a third party is a mortgagee or chargee, warrants that it will not act inconsistently with the requirements of this Funding Agreement or a Contract in exercising its rights under any instrument of mortgage or charge.

40A.3 For the purpose of this clause 40A:

(a) ‘Contract’ means a contract between the Organisation and a Proponent in relation to the performance of a Sub-Project (as is contemplated by clause 5.17) that is to be conducted on Proponent Land; and

(b) ‘Proponent Land’ means land in relation to which the Proponent has an interest.

40B WORK HEALTH AND SAFETY40B.1 In this clause 40B:

(a) ‘Notifiable Incident’ has the meaning given in section 35 of the WHS Act;

(b) ‘Regulator’ means Comcare;

(c) ‘WHS Act’ means the Work Health and Safety Act 2011 (Cth) and any corresponding WHS law within the meaning of section 4 of the WHS Act;


44

(d) ‘WHS Entry Permit Holder’ has the meaning given in the WHS Act;

(e) ‘WHS Laws’ means the WHS Act and WHS Regulations; and

(f) ‘WHS Regulations’ means the regulations made under the WHS Act.

40B.2 The Organisation must in carrying out its obligations under this Agreement, comply, and ensure that each of the Proponents comply and use reasonable endeavours to ensure that its Subcontractors comply, with the provisions of all relevant statutes, regulations, by-laws and requirements of any Commonwealth, State, Territory or local authority including those arising under the WHS Laws in respect of occupational health and safety.

40B.3 The Organisation must, in carrying out its obligations under this Agreement, comply, and ensure that the Proponents comply and use reasonable endeavours to ensure that its Subcontractors comply, with any of the Commonwealth’s policies referred to, or made available, by the Commonwealth to the Organisation in writing.

40B.4 If the Organisation is required, or the Proponents are required, by the WHS Act to report a Notifiable Incident to the Regulator arising out of the Activity, the Project or a Sub-Project:

(a) at the same time, or as soon as is possible in the circumstances, the Organisation must give notice of such incident, and a copy of any written notice provided to the Regulator, to the Department; and

(b) the Organisation must provide to the Department, within such time as is specified by the Department, a report detailing the circumstances of the incident, the results of the investigations into its cause, and any recommendations or strategies for prevention in the future.

40B.5 The Organisation must inform the Department of the full details of:

(a) any suspected contravention of the WHS Laws relating to the Activity, the Project or a Sub-Project, within 24 hours of becoming aware of any such suspected contravention;

(b) any cessation or direction to cease work relating to the Activity, the Project or a Sub-Project, due to unsafe work, immediately upon the Organisation being informed of any such cessation or direction;

(c) any workplace entry by a WHS Entry Permit Holder, or an inspector, to any place where the Activity, the Project or a Sub-Project, is being performed or undertaken, within 24 hours of becoming aware of any such workplace entry; and

(d)any proceedings against the Organisation, its officers, the Proponents or the Proponents’ officers, or any decision or request by the Regulator given to the Organisation, its officers, the Proponents or the Proponents’ officers, under the WHS Laws, within 24 hours of becoming aware of any such


45

proceedings, decision or request.40B.6 The Organisation agrees, when using the Department’s premises or facilities, to comply with all reasonable directions and procedures relating to occupational health, safety and security in effect at those premises or in regard to those facilities, as notified by the Department or as might reasonably be inferred from the use to which the premises or facilities are being put.

41. INTERPRETATION41.1 In this Agreement, unless the contrary intention appears:

‘ABN’ has the same meaning as it has in section 41 of the A New Tax System (Australian Business Number) Act 1999 (Cth);

‘Activity’ means the activity described in the Schedule, which aims to fulfil one or more of the goals of the Program, and includes the Project, the provision of Activity Material and any parts of the Activity that are required to be undertaken by Subcontractors;

‘Activity Material’ means all Material:

(a) brought into existence for the purpose of performing the Activity (whether by the Organisation or a Subcontractor);

(b) incorporated in, supplied or required to be supplied along with the Material referred to in paragraph (a); or

(c) copied or derived from Material referred to in paragraphs (a) or (b) by or on behalf of the Organisation;

‘Activity Period’ means the period specified in the Schedule during which the Activity must be completed;

‘Adjustment Note’ has the meaning given in section 195-1 of the GST Act;

‘Advisers’ means a Party’s agents, contractors (including Subcontractors) or advisers engaged in the performance or management of this Agreement;

‘Agreed Water Savings’ means the volume of Water Access Entitlements specified in Item 14 of the Schedule that is expected to be saved as a result of the Proponent’s use of the Funds to undertake the Sub-Project;

‘Agreement’ means this document and includes any Schedules and Annexures;

‘Annexure’ means an annexure to the Schedule;

‘Approved Auditor’ means a person who is:

(a) registered as a company auditor under the Corporations Act 2001, or a member of the Institute of Chartered Accountants in Australia, or of CPA Australia or the National Institute of Accountants; and

(b) not a principal, member, shareholder, officer or employee of the Organisation or of a related body corporate as defined in section 9 of


46

the Corporations Act 2001 or the Organisation’s or a Proponent’s Qualified Accountant;

‘Asset’ means any item of tangible property, purchased, leased, created or otherwise brought into existence wholly, or in part, with the use of the Funds, which has at that time a value of over $5,000 inclusive of GST, but does not include Activity Material or any Water Access Entitlement that the Organisation or a Proponent is required to Assign to the Commonwealth;

‘Assign’ means, in respect of a Water Access Entitlement, to permanently transfer all right, title and interest in that Water Access Entitlement free of any third party interest affecting the Water Access Entitlement (including but not limited to lease, term transfer, mortgage, debenture, bill of sale or charge);

‘Auditor-General’ means the office established under the Auditor-General Act 1997 (Cth) and includes any other entity that may, from time to time, perform the functions of that office;

‘Australian Accounting Standards’ refers to the standards of that name maintained by the Australian Accounting Standards Board created by section 226 of the Australian Securities and Investments Commission Act 2001 (Cth);

‘Australian Auditing Standards’ refers to the standards of that name maintained by the Australian Auditing and Assurance Standards Board created by section 227A of the Australian Securities and Investments Commission Act 2001 (Cth);

‘Australian Government Material’ means any Material provided by the Commonwealth to the Organisation for the purposes of this Agreement or which is copied or derived from Material so provided, except for Activity Material;

‘Budget’ refers to a budget for expenditure of the Funding for the purposes of conducting the Activity and performing obligations under this Agreement, including the overall Activity Budget in Item 4 of the Schedule and the budget for each Sub-Project Type set out in Item 4.1 of each Sub-Project Type Schedule;

‘Business Day’ means in relation to taking any action in a place, any day other than a Saturday, Sunday or public holiday in that place;

‘Commonwealth’ means the Commonwealth of Australia;

‘Commonwealth Share’ means the volume of Agreed Water Savings specified in Item 14 of the Schedule and as detailed in Item 5 of each Sub-Project Type Schedule, to be Assigned to the Commonwealth under a Water Access Entitlement Assignment Contract;

‘Completion Date’ means the day after the Organisation and each of its Subcontractors has done all that it is required to do under this Agreement to the Department’s satisfaction;


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‘Confidential Information’ means:

(a) the information described in the Schedule; and

(b) information that is agreed between the Parties after the Date of this Agreement as constituting Confidential Information for the purposes of this Agreement.

‘Conflict’ means any matter, circumstance, interest or activity involving or affecting the Organisation, its Personnel or Subcontractors (including its Proponents) which may or may appear to impair the ability of the Organisation to perform the Activity, or its Proponent to perform its Sub-Project, diligently and independently;

‘Constitution’ means (depending on the context):

(a) a company’s constitution, which (where relevant) includes any rules and amendments that are part of the company’s constitution; or

(b) in relation to any other kind of body:

(i) the body’s charter, rules or memorandum; or

(ii) any instrument or law constituting or defining the constitution of the body or governing the activities of the body or its members;

‘Date of this Agreement’ means the date written on the execution page of this Agreement, and if no date or more than one date is written there, then the date on which this Agreement is signed by the last Party to do so;

‘Department’ means the Commonwealth Department of the Environment ABN 34 190 894 983 (or any other Commonwealth department or agency that is, from time to time, responsible for the administration of this Agreement) and the delegates, officers, employees and agents of that Department;

‘Depreciated’ means the amount representing the reduction in value of an Asset calculated in accordance with Australian Accounting Standards;

‘Director’ means:(a) a person who is a director, as defined in section 9 of the

Corporations Act 2001 (Cth), of a body corporate regardless of the name given to their position;

(b) a member of the committee of an organisation incorporated pursuant to State or Territory laws relating to the incorporation of associations; and

(c) a member of the board, committee or group of persons (however described) that is responsible for managing or overseeing the affairs of a body corporate;

‘Dispose’ means to sell, lease or sub-lease, or otherwise transfer or give up ownership or the right to occupy or use, or to enter into an agreement to do any of the preceding acts and ‘Disposal’ means the method of so disposing;


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‘Environmental Arrangement’ means an arrangement (whether contractual or statutory) with the Commonwealth under which the Commonwealth provides funds for irrigation purposes or water resource management, environmental management or natural resource management purposes excluding this Agreement and the contracts executed between the Proponents' and the Organisation for the purpose of this Agreement;

’Existing Material’ means all Material in existence prior to the Date of this Agreement:

(a) incorporated in;

(b) supplied with, or as part of; or

(c) required to be supplied with, or as part of;

the Activity Material;

‘Financial Year’ means each period from 1 July to the following 30 June occurring during the Activity Period, or any part of such a period occurring at the beginning or end of the Activity Period;

‘Freedom of Information Commissioner’ means the office of that name established under the Australian Information Commissioner Act 2010 (Cth) and includes any other person that may, from time to time, perform the functions of that office;

‘Funding’ or ‘Funds’ means the amount or amounts (in cash or kind) payable under this Agreement by the Commonwealth as specified in the Schedule, including any interest earned on the Funds;

‘GST’ has the meaning given in section 195-1 of the GST Act;

‘GST Act’ means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

‘Guidelines ’ refers to the guidelines for the Program, which are available from http://www.environment.gov.au/topics/water/rural-water/sustainable-rural-water-use-and-infrastructure/farm-irrigation-efficiency-1

‘Information Commissioner’ means the office of that name established under the Australian Information Commissioner Act 2010 (Cth) and includes any other person that may, from time to time, perform the functions of that office;

‘Input Tax Credit’ has the meaning given in section 195-1 of the GST Act;

‘Intellectual Property Rights’ includes all copyright (including rights in relation to phonograms and broadcasts), all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), designs, circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields but does not include Moral Rights, the rights of performers or rights in relation to Confidential Information;


49

http://www.environment.gov.au/topics/water/rural-water/sustainable-rural-water-use-and-infrastructure/farm-irrigation-efficiency-1

http://www.environment.gov.au/topics/water/rural-water/sustainable-rural-water-use-and-infrastructure/farm-irrigation-efficiency-1

‘Interest’ means interest calculated at an interest rate equal to the general interest charge rate for a day pursuant to section 8AAD of the Tax Administration Act 1953 (Cth), on a daily compounding basis;

‘Material’ means the subject matter of any category of Intellectual Property Rights and includes documents, equipment, software (including source code and object code), goods, information and data stored by any means including all copies and extracts of the same;

‘Milestone’ means a stage of completion of the Activity, the Project or a Sub-Project (as the case may be) set out in a Milestone Schedule;

‘Milestone Schedule’ means the table(s) contemplated by Item 1.7 of the Schedule as set out at Item 1.4 of each Sub-Project Type Schedule;

‘Moral Rights’ includes the following rights of an author of copyright Material:

(a) the right of attribution of authorship;

(b) the right of integrity of authorship;

(c) the right not to have authorship falsely attributed;

‘Objectives’ means:

(a) in respect of the Activity (including the Project) to be undertaken by the Organisation – the objectives described in the Schedule, and

(b) in respect of a Sub-Project Type – the objectives described in a Sub-Project Type Schedule,

which are the agreed results the Organisation must achieve and ensure its Subcontractors achieve;

‘Ombudsman’ means the office of that name established under the Ombudsman Act 1976 (Cth) and includes any other person that may, from time to time, perform the functions of that office;

‘Organisation’ means [Note: insert full legal name and ABN of the Organisation] and, where the context admits, includes the Organisation’s officers, employees, agents, volunteers and Subcontractors and its successors;

‘Organisation’s Contributions’ means the contributions, if any, specified in the Schedule that are provided by the Organisation for the purposes of the Activity;

‘Other Contributions’ means the financial or in-kind resources (with in-kind resources valued at cost), other than the Funding or any Organisation’s Contributions, which are specified in the Schedule and are used by the Organisation for the Activity;

‘Party’ means a party to this Agreement;

‘Personal Information’ has the same meaning as it has in section 6 of the Privacy Act;


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‘Privacy Act’ refers to the Privacy Act 1988 (Cth);

‘Privacy Commissioner’ means the office of that name established under the Australian Information Commissioner Act 2010 (Cth) and includes any other person that may, from time to time, perform the functions of that office;

‘Program’ means the part of the Department’s operations specified in the Schedule under which the Commonwealth is able to give the Funding to the Organisation described in the Recitals of this Agreement;

‘Project’ means the irrigation efficiency project that the Organisation is required to undertake which includes the management and delivery of Sub-Projects in the Sub-Project Types contemplated by this Agreement for which Proponents are required to Assign to the Commonwealth the Commonwealth Share of the Agreed Water Savings;

‘Project Generated Income’ means any income earned or generated by the Organisation from its use of the Funds, including:

(a) interest earned from the investment of the Funds;

(b) where the proceeds of insurance paid to the Organisation to replace an Asset exceed the amount actually paid by the Organisation to replace the Asset – the proportion of that excess that reflects the proportion of the total cost of acquiring the Asset that was met by the Funds; and

(c) the proportion of any income received by the Organisation as a result of its use of an Asset that reflects the proportion of the total cost of acquiring the Asset that was met by the Funds;

‘Proponent’ means any person or organisation:

(a) holding a Water Access Entitlement for the purposes of agricultural production; and/or

(b) that is the owner or occupier of land and is engaged by the Organisation to undertake part of the Activity (e.g. a Sub-Project) under this Agreement on the land; and/or

(c) that is a business operator engaged by the Organisation to undertake part of the Activity (e.g. a Sub-Project) under this Agreement.

‘Qualified Accountant’ means a person who is a member of the Institute of Chartered Accountants in Australia, or of CPA Australia or the National Institute of Accountants;

‘Records’ includes documents, information and data stored by any means and all copies and extracts of the same;

‘Report’ means Activity Material that is provided to the Department for reporting purposes on matters as stipulated in the Schedule;

‘Schedule’ refers to the schedule to this Agreement and may include Annexures and incorporate other documents including by reference;


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‘Subcontractor’ means a contractor engaged by the Organisation to perform part or all of the Organisation’s obligations under this Agreement, but does not include a Proponent;

‘Sub-Project’ means a Sub-Project to be undertaken by a Proponent for on farm irrigation efficiency works of a particular Sub-Project Type (as described in a Sub-Project Type Schedule);

‘Sub-Project Plan’ means a finalised plan for a Sub-Project submitted by the Organisation to the Department (as part of the assessment process) which must be consistent with the obligations of the Organisation under this Agreement and which details (amongst other matters):

(a) the works to be undertaken by a Proponent in a Sub-Project; and

(b) the water savings to be delivered by the Sub-Project.

‘Sub-Project Type’ means a category of Sub-Projects which the Organisation has undertaken to manage and deliver as part of the Activity.

‘Sub-Project Type Schedule’ means a schedule in the form attached at Annexure B which identifies:

(a) a Sub-Project Type which the Organisation has undertaken to manage and deliver; and

(b) the Sub-Projects which each Proponent will undertake.

‘Tax Invoice’ has the meaning given in section 195-1 of the GST Act;

‘taxable supply’ has the meaning given in section 195-1 of the GST Act;

‘Term of this Agreement’ refers to the period described in subclause 2.1;

‘Third Party Interest’ means any legal or equitable right, interest, power or remedy in favour of any person other than the Organisation or the Commonwealth in connection with the Agreement, including, without limitation, any right of possession, receivership, control or power of sale, and any mortgage, charge, security or other interest;

‘Undepreciated’ in relation to the value of an Asset, means the value of the Asset which has not been Depreciated;

‘Water Access Entitlement’ means a ‘water access entitlement’ as defined in section 4 of the Water Act 2007 (Cth) and specified in Item 14 of the Schedule and Item 5 of each Sub-Project Type Schedule which is capable of being Assigned to the Commonwealth under a Water Access Entitlement Assignment Contract;

‘Water Access Entitlement Assignment Contract’ means a contract between the Proponent and the Commonwealth to Assign the Commonwealth Share of the Agreed Water Savings to the Commonwealth; and

‘Water Act’ means the Water Act 2007 (Cth).

41.2 In this Agreement, unless the contrary intention appears:


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(a) words in the singular number include the plural and words in the plural number include the singular;

(b) words importing a gender include any other gender;

(c) words importing persons include a partnership and a body whether corporate or otherwise;

(d) all references to clauses are clauses in this Agreement;

(e) all references to dollars are to Australian dollars and this Agreement uses Australian currency;

(f) reference to any statute or other legislation (whether primary or subordinate) is to a statute or other legislation of the Commonwealth and, if it has been or is amended, modified or repealed and other legislation substituted, is a reference to that statute or other legislation as amended, modified or substituted;

(g) an uncertainty or ambiguity in the meaning of a provision of this Agreement will not be interpreted against a Party just because that Party prepared the provision;

(h) where any word or phrase is given a defined meaning, any other part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning; and

(i) the term "includes" is not a term of limitation,

41.3 The Schedule (and Annexures and documents incorporated by reference, if any) form part of this Agreement.

41.4 In the event of any conflict or inconsistency between any part of:

(a) the terms and conditions contained in the clauses of this Agreement;

(b) the Schedule;

(c) a Sub-Project Type Schedule;

(d) any Annexures, or

(e) any other documents incorporated by reference,

then the material mentioned in any one of paragraphs (a) to (e) will, to the extent of any conflict or inconsistency, have a descending order of precedence (so that a document higher in the list will take precedence over a document lower in the list).

SCHEDULE 1. TERM, PROGRAM AND ACTIVITY (Recital A, subclauses 2.1, 5.1 and

41.1)

TERM

1.1 The Activity Period ends within 36 months following execution of this Agreement.


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PROGRAM

1.2 The Program is described in the Recitals of this Agreement.

ACTIVITY

1.3 In conducting the Activity, the Organisation must perform the work and achieve the Milestones (including those relating to the provision of Reports) specified in Item 1 of each Sub-Project Type Schedule. The Organisation must also provide each Proponent with contact details (as follows) for The Department of Agriculture. It is then up to each Proponent to elect (or not) to contact The Department of Agriculture to discuss the Sub-Project(s) in which they have participated.

Dale Ashton Farm Analysis, Productivity and Social Sciences BranchThe Department of Agriculture 02 6272 [email protected]

Objectives of the Activity and Sub-Project Types

1.4 The Objectives of the Activity are to improve the efficiency and productivity of on-farm water use and management through the implementation of on-farm irrigation infrastructure projects. Water savings generated by the Activity will be shared between proponents and the environment with at least 50 per cent of the water savings transferred to the Australian Government. The Organisation has identified Sub-Project Types comprised of a number of Sub-Projects to be undertaken at a Proponent level.

These Sub-Projects will allow Proponents to reduce water losses and manage their water allocations more efficiently. They will also assist dependent irrigation communities to adapt to a future of reduced water availability due to climate change.

The Objectives of each Sub-Project Type are set out in Item 1.1 of each Sub-Project Type Schedule.

Detailed Description of Sub-Project Types and Sub-Projects

1.5 Detailed descriptions of each Sub-Project Type and Sub-Project are set out in Item 1.2 of each Sub-Project Type Schedule.

Demonstration and communication activities

1.6 The demonstration and communication activities (if any) to be performed for each Sub-Project Type are set out in Item 1.3 of each Sub-Project Type Schedule.

Milestones

1.7 The Milestones for each Sub-Project Type are set out in Item 1.4 of each Sub-Project Type Schedule.


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mailto:[email protected]


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2. FUNDING AND PAYMENT (subclause 4.1, clause 5 and subclause 41.1)

FUNDING

2.1 The maximum Funding for the Activity is $[insert amount in bold] (inclusive of GST / $[insert amount in bold] (exclusive of GST).

2.2 The Funding will be paid at the times and in the manner specified in the Milestone Schedule of each Sub-Project Type Schedule.

2.3 Any payment made in accordance with a Milestone Schedule is subject to the terms of this Agreement and:

(a) the Organisation’s compliance with the Reporting requirements falling up to and on the date the payment is due (see Item 5);

(b) where the Organisation makes a taxable supply under this Agreement, the Organisation providing the Commonwealth with a Tax Invoice in accordance with subclause 11.4;

(c) the Organisation demonstrating that the Funds already provided to the Organisation have been fully spent or will be fully spent in the near future;

(d) progress of Proponents’ Sub-Projects to the reasonable satisfaction of the Department;

(e) (where completion of Proponents’ Sub-Projects is a condition of the relevant payment) the Proponents’ Sub-Projects having been completed:

(i) so as to achieve the Objectives, and

(ii) in accordance with the detailed description,

to the reasonable satisfaction of the Department.

3. ORGANISATION’S CONTRIBUTIONS AND OTHER CONTRIBUTIONS (clause 6 and subclause 41.1)

ORGANISATION’S CONTRIBUTIONS

3.1 The Organisation’s Contributions for each Sub-Project Type are specified in Item 3.1 of each Sub-Project Type Schedule.

OTHER CONTRIBUTIONS

3.2 The Other Contributions (including Other Contributions by Proponents) for each Sub-Project Type are specified in Item 3.2 of each Sub-Project Type Schedule.


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4. BUDGET (subclause 41.1)

4.1 The Budget for the Activity is specified in the following table:

Activity element (including a

Project)

FundingIncluding

Admin

(GST Exc.)

FundingIncluding

Admin

(GST Inc.)

Proponent Cash Contributions (not in-kind)

(GST Inc.)

Organisation's Cash

Contributions

(GST Inc.)

Total

(GST Inc.)

Sub-Project Type 0

Sub-Project Type

0

Sub-Project Type

0

Sub-Project Type

0

Total 0


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[In the table above, insert overall high level Budget for the Activity showing the Funding, Other Contributions and Organisation’s Contributions broken down, for example, into total amounts for separate projects and the Organisation's administration. Each Sub-Project Type should be a separate line item in the overall Budget]

4.2 The Budget for each Sub-Project Type is specified in Item 4.1 of each Sub-Project Type Schedule.

5. REPORTS (clause 10 and subclause 41.1)

5.1 The Organisation must provide, in accordance with clause 10 [Reporting] and in a form and manner as specified in this Item 5 [Reporting] five types of Report:

(a) progress Reports;

(b) financial Reports;

(c) a Sub-Project Type Closure Report;

(d) a final Activity Report; and

(e) other ad hoc Reports (as requested by the Department).

5.2 Two (2) copies of all Reports must be provided to the Department - one signed original and one electronic copy.

PROGRESS REPORTS

5.3 The Organisation is required to submit a progress Report to the Department as part of its completion of each Milestone for each Sub-Project Type.

5.4 Each progress Report must include, but need not be limited to, the following information for the reporting period:

(a) the name of the Organisation and each Proponent under the Sub-Project Type;

(b) the full Sub-Project Type title;

(c) the amount of Funds and the total cost/value of the Sub-Project Type;

(d) the part of the Sub-Project Type period to which the Report relates;

(e) a description and analysis of the Organisation's Activities and its progress of the Sub-Project Type to date, including the Objectives achieved during the period to which the Report relates;

(f) identification of the Milestones and timeframes (and any performance indicators) met by the Organisation and its Proponents during the period to which the Report relates;

(g) a statement as to whether the timeframes for the Sub-Project Type is being met by the Organisation and its Proponents and an explanation of any delays that have occurred, including the reasons

58Department of the, Environment – Round Four Funding Agreement - <Insert DP Title Name>

for those delays and the action the Organisation proposes to take to address the delay and the expected effects (if any) the delay will have on the activities and Sub-Project Type (including subsequent Milestones and the overall completion of the activities and Sub-Project Type);

(h) a statement as to whether the Activity and Sub-Project Type are proceeding within the overall Project Activity Budget and if it is not, an explanation of why those Budgets are not being met and the action the Organisation proposes to take to address this;

(i) a statement of the balance of the Organisation’s account referred to in paragraph 5.6(a) and the amount of Funds, if any, held by each Proponent;

(j) an income and expenditure statement for the Funds to date (and as compared with the overall Activity Budget and the Budget for the relevant Financial Year of the Activity) including a statement of the amount of Funds provided to, and spent by, each Proponent; and

(k) a statement regarding the use of the interest earned on the Funds by the Organisation and its Proponents. Note the Organisation must obtain written permission from the Department prior to using any interest earned on the Funds (see subclause 5.5).

FINANCIAL REPORTS

5.5 The Organisation must submit financial Reports as required under clause 10.

SUB-PROJECT TYPE CLOSURE REPORT

5.6 The Sub-Project Type Closure Report for each Sub-Project Type is due within 60 Business Days of completion of the final Milestone of each Sub-Project Type, at the completion of the Sub-Project Type or termination of this Agreement, whichever is the earliest.

5.7 The Sub-Project Type Closure Report for each Sub-Project Type must be a stand-alone document that can be used for public information dissemination purposes on the operation, mechanisms and processes employed by the Organisation to perform the Sub-Project Type and achieve its Objectives.

5.8 The Sub-Project Type Closure Report by Sub-Project Type must:

(a) cover the entire Sub-Project Type period;

(b) describe the conduct, benefits and outcomes of the Sub-Project Type as a whole;

(c) evaluate the Sub-Project Type (including Proponent Sub-Projects) and include a detailed discussion of the extent to which each of the Objectives of the Sub-Project Type have been achieved; and

(d) contain an explanation of why any Objectives were not achieved.


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5.9 The Organisation must also include a discussion of any other matters, relating to the evaluation of the Sub-Project Type, which the Department specifies to be included in the Sub-project Type Closure Report. Any such requirement will be notified to the Organisation at least 30 Business Days before the Sub-Project Type Closure Report for each Sub-Project Type is due.

FINAL ACTIVITY REPORT

5.10 The final Activity Report is due within 60 Business Days prior to the end of the Activity Period or at the completion of the final Sub-Project Type or termination of this Agreement, whichever is the earliest.

5.11 The final Activity Report must be a stand-alone document that can be used for public information dissemination purposes on the operation, mechanisms and processes employed by the Organisation to perform the Activity and achieve its Objectives.

5.12 The final Activity Report must:

(a) cover the entire Activity Period;

(b) describe the conduct, benefits and outcomes of the Activity as a whole;

(c) evaluate the Activity (including Sub-Project Types) and include a detailed discussion of the extent to which each of the Objectives of the Activity have been achieved; and

(d) contain an explanation of why any Objectives were not achieved.

5.13 The Organisation must also include in the final Activity Report a discussion of any other matters, relating to the evaluation of the Activity, which the Department specifies to be included in the final Activity Report. Any such requirement will be notified to the Organisation at least 30 Business Days before the final Activity Report is due.

OTHER REPORTS

5.14 The Department may require the Organisation to provide ad hoc Reports to the Department concerning:

(a) any significant developments concerning the Activity or the Sub-Project Type; and

(b) any significant delays or difficulties encountered in performing the Activity or the Sub-Project Type in accordance with the Agreement.


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6. ASSETS (subclause 41.1 and clause 7)

ASSET REGISTER

6.1 The Organisation must maintain, and must ensure that each Proponent maintains, for the duration of the Activity Period an Asset register in the following form and containing the following information:

Asset number

Description of Asset

Purchase price or total lease cost

Date of purchase or lease

Term of lease

Location of Asset

Method of and Date on which the Asset was disposed of or written-off

7. AUSTRALIAN GOVERNMENT MATERIAL (subclauses 12.1 to 12.3)

[This item will state any conditions or restrictions on the Organisation’s or a Proponent’s use of Australian Government Material.]

8. INTELLECTUAL PROPERTY (subclause 41.1 and clause 13)

[Insert as required]

9. CONFIDENTIAL INFORMATION (subclause 41.1 and clause 14)COMMONWEALTH CONFIDENTIAL INFORMATION

9.1 The Commonwealth’s Confidential Information is:

Agreement Provisions/Schedule/AnnexuresItem Period of

Confidentiality

[Insert] [Insert]

Agreement-related materialItem Period of

Confidentiality

[Insert] [Insert]

ORGANISATION’S CONFIDENTIAL INFORMATION

9.2 The Organisation’s Confidential Information is:

Agreement Provisions/Schedule/AnnexuresItem Period of

Confidentiality

[Insert] [Insert]


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Agreement-related materialItem Period of

Confidentiality

[Insert] [Insert]

10. INSURANCE (subclause 17.1)

10.1 The Organisation is required to hold and maintain (and ensure that its Proponents hold and maintain) the following insurance for the duration of the Activity:

(a) workers compensation insurance as required by law where the Organisation or Proponent (as the case may be) carries out activities under this Agreement;

(b) public liability insurance to the value of at least $20 million per claim, or occurrence giving rise to a claim, in respect to activities undertaken under this Agreement, where occurrence means either a single occurrence or a series of occurrences if these are linked or occur in connection with one another from one original cause, as the case may be;

(c) insurance over any Asset acquired by the Organisation pursuant to clause 7 of this Agreement or by or on behalf of the Proponents for its full replacement value; and

(d) to the extent that the Organisation or Proponent is providing a professional service or product, professional indemnity insurance for an amount of not less than $10 million per claim.

11. SUBCONTRACTORS (subclause 23.1)

11.1 [Write ‘Not applicable’ if this item does not apply] The approved Subcontractors as at the Date of this Agreement and any terms and conditions relating to their engagement are identified in the table below:

Name of Subcontractor Terms and conditions (if required)

[Insert] [Insert or write ‘Not Applicable’]

12. ACKNOWLEDGMENT AND PUBLICITY (subclause 24.1)

12.1 The Organisation must acknowledge, and ensure that each Proponent acknowledges, the provision of the Funding by the Commonwealth. The form of this acknowledgement is to be agreed with the Department on a case-by-case basis.


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12A. COMPLIANCE WITH LAWS AND OUR POLICIES (subclause 25.2)

12A.1 The Organisation must comply with the following policies and program documentation in carrying out the Activity:

(a) Funding Guidelines for the On-Farm Irrigation Efficiency Program (July 2013)

13. CONTACT and NOTICES (subclause 34.2 and subclause 35.1)

13.1 The Department’s contact and notice details are as follows:

[name, position, address, telephone, fax and e-mail to be specified]

On-Farm Irrigation Efficiency Program Department of the EnvironmentGPO Box 787CANBERRA ACT 2601P: 02 627X xxxxF: 02 6274 xxxxE: [email protected]

13.2 The Organisation’s contact for day to day communications is:

[name, position, postal address, telephone, fax and e-mail to be specified]

Ph: xxxxxxxxxxxM: xxxxxxxxxxxF: xxxxxxxxxxxxE: xxxxxxxxxxxx

The Organisation must, as required, update the Specified Personnel contact for day to day communications by notifying the Department in writing within 10 days of the change of personnel.

13.3 The Organisation’s contact for notices are as follows:

[name, position, physical address, telephone, fax and e-mail to be specified][This person should be the CEO or equivalent of the Organisation]

Ph: xxxxxxxxxxxxM: xxxxxxxxxxxxF: xxxxxxxxxxxxE: xxxxxxxxxxxx

14. WATER ACCESS ENTITLEMENT ARRANGEMENTS (subclauses 5.18 and 41.1 and clause 8)

[This part of the Schedule will specify the arrangements agreed with the Organisation and Proponents for the Assignment of Water Access Entitlements equivalent to the Commonwealth Share of the Agreed Water Savings.]


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mailto:[email protected]

14.1 The Agreed Water Savings are [xxxxx]ML.

14.2 The Commonwealth Share of the Agreed Water Savings are [xxxxx]ML in respect of each Sub-Project Type as specified in Item 5.1 of each Sub-Project Type Schedule.

14.4 The Water Access Entitlement(s) that are required to be Assigned to the Commonwealth under this Agreement must, to the satisfaction of the Department, be entitlements that are:

(a) expected to be saved as a result of a Sub-Project(s); and/or

(b) consistent with those proposed by the Organisation in their application for funding under the Program.

15. PROVISIONS FOR INCLUSION IN INSTRUMENT OF TRANSFER/MORTGAGE

15.1 Where there is a Disposal of land (i.e. sale, transfer, lease etc)

(a) With effect from the date of this instrument the Transferor warrants to the Transferee and the [Organisation] that it will:

(i) discharge all liabilities and obligations to the Organisation for which the Transferor may be liable under the terms of its Contract with the Organisation prior to the date of transfer;

(ii) agree to novate the Transferor’s Contract to the Transferee;

(iii) agree to novate the Water Access Entitlement Assignment Contract (if not complete) to the Transferee; and

(iv) will obtain before the date of this instrument, the release or discharge of any mortgages, charges or other encumbrances affecting any land and/or water entitlement being transferred and will transfer any such entitlement to the Transferee free of any such encumbrances whatsoever.

(b) With effect from the date of this instrument the Transferee warrants and covenants with the Transferor and Organisation that it:

(i) has reviewed and satisfied itself of the terms of the Organisation’s Funding Agreement.

(ii) is satisfied as to the provisions of the Transferor’s Contract with the [Organisation] in respect of the conduct of the Sub-Project;

(iii) agrees to accept novation of the Transferor’s Contract with the Organisation and assume full responsibility and liability for complying with the terms of the Contract and completing the Sub-Project;

(iv) if required, agrees to accept novation of the Transferor’s Water Access Entitlement Assignment Contract with the Organisation and assume full responsibility and liability for


64

complying with the terms of the Water Access Entitlement Assignment Contract;

(v)will give notice to the Organisation of any mortgage, charge or other encumbrance affecting either the land or the water entitlement to be transferred and to allow the Organisation to record such mortgage, charge or encumbrance against the Transferee’s entitlement in the records of the Organisation; and

(vi) will not use or allow to be used any water entitlement in any way other than as provided for in the Contract and/or Water Access Entitlement Assignment Contract or any rules, regulations or management decisions made by the Organisation.

(c) For the purpose of the above clause;

(i) ‘Contract’ means a contract between the [Organisation] and the Transferor (Proponent) in relation to the performance of a Sub-Project (as is contemplated by clause 5.17 in the Funding Agreement);

(ii) ‘Funding Agreement’ means [insert name of Funding Agreement] dated [insert date of execution of Agreement];

(iii) ‘Organisation’ means the [insert full name of Organisation and ABN];

(iv) ‘Sub-Project’ means the Sub-Project to be undertaken by the Transferor (Proponent) for on farm irrigation efficiency works of a particular Sub-Project Type (as described in the Sub-Project Type Schedule in the Funding Agreement); and

(v) ‘Water Access Entitlement Assignment Contract’ means the contract between the Transferor (Proponent) and the Commonwealth to Assign the Commonwealth Share of the Agreed Water Savings to the Commonwealth as described in the Funding Agreement.


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15.2 Where there is a mortgage/charge arrangement

(a) With effect from the date of this instrument the Mortgagee warrants to the Transferor and [Organisation] that it:

(i) has satisfied itself of the terms of the Funding Agreement and the Contract; and

(ii)will not act inconsistently with the requirements of the Organisation’s Funding Agreement with the Commonwealth or the Contract in exercising its rights under any instrument of mortgage or charge.

(b) For the purpose of the above clause;

(i) ‘Contract’ means a contract between the Organisation and the Transferor (Proponent) in relation to the performance of a Sub-Project (as is contemplated by clause 5.17 in Funding Agreement titled [insert name]);

(ii) ‘Funding Agreement’ means [insert name of Funding Agreement] dated [insert date of execution of Agreement];

(iii) ‘Organisation’ means the [insert full name of Organisation and ABN]; and

(iv) ‘Sub-Project’ means a Sub-Project to be undertaken by the Transferor (Proponent) for on farm irrigation efficiency works of a particular Sub-Project Type (as described in the Sub-Project Type Schedule in the Funding Agreement).


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Annexure A: Requirements that must be included in the Organisation's contracts with its Proponents

A.1 As specified in paragraph 5.18(a), the Organisation must include provisions in its contract with each of its Proponents that are substantially the same as the requirements specified in the following table.

A.2 The Organisation may include additional provisions in its contract with a Proponent provided they are not inconsistent with the Organisation's obligations under this Agreement.

Clause Number in this Agreement

Related requirements that must be reflected in the Organisation's contract with each Proponent

3.3 The Proponent must inform the Organisation if the Proponent has any outstanding or unacquitted money under an Environmental Arrangement.

4.4 Notwithstanding any withholding or suspension of any payment of Funds under this Agreement, the Proponent must continue to perform its Sub-Project and its obligations under its contract with the Organisation unless the Organisation has obtained the Department's prior written agreement to the contrary.

5.1 The Proponent must carry out its Sub-Project in accordance with its contract with the Organisation, diligently, effectively and in good faith.

5.5 The Proponent may only spend the Funding for its Sub-Project in accordance with its contract with the Organisation and the Guidelines.

The Proponent may only spend interest it earns on the Funds if the Organisation has obtained the Department's prior written permission for the Proponent to do so. The Proponent may only spend interest it earns on the Funds on its Sub-Project.

5.6 If the Organisation pays Funds to the Proponent in advance (i.e. to complete the Proponent's next Milestone):

(a) the Proponent must comply with requirements that are substantially the same as those in subclause 5.6 of this Agreement other than the requirements specified in paragraphs 5.6(b) and 5.6(g) of this Agreement; and

(b) the Organisation is required to have the same rights as the Commonwealth has under clause 5.6, including the right to exercise an authorisation to obtain information from the bank about the Proponent's bank account.


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5.7 The Proponent must keep financial accounts and Records that enable it to meet requirements that are substantially the same as those in paragraphs 5.7(a) to (c) inclusive of this Agreement in relation to:

(a) any Funding paid by the Organisation to the Proponent for the Proponent's Sub-Project; and

(b) any Other Contributions made by the Proponent to the Proponent’s Sub-Project.

5.8 The Proponent must ensure that all payments of Funds it makes to third parties are correctly made and properly authorised and that it maintains proper and diligent control over its incurring of liabilities in respect of its Sub-Project.

The Organisation must obtain the Proponent's prior written agreement to deduct the cost of any Asset that the Organisation purchases for the Proponent to use in its Sub-Project from the Funds that would otherwise be paid to the Proponent.

5.9 The Proponent must not use any of the things specified in paragraphs 5.9(a) to (c) inclusive of this Agreement as security for the purpose of obtaining or complying with any form of loan, credit, payment or other interest.

5.12 The Proponent must notify the Organisation if, at the end of the Proponent's Sub-Project, the Proponent has Funds that have not been spent or irrevocably committed in respect of the Proponent's Sub-Project.

5.18(b) The Proponent must comply with the requirements specified in clause 5.18(b) of this Agreement.

5.19(a) and (b) The Organisation must include payment provisions in its contract with the Proponent that reflect the requirements in paragraphs 5.19(a) and (b) of this Agreement.

The Organisation's contract with the Proponent that relates to a Proponent’s Sub-Project should be expressed to expire if a Proponent in that Sub-Project does not enter into a contract for the Assignment of a Water Access Entitlement in accordance with clauses 5.19 and 8.

6.2.a The Proponent must provide any Other Contributions that this Agreement states are to be provided by that Proponent for its Sub-Project.

6.6 The Proponent must notify the Organisation if the Proponent becomes entitled to receive any financial or in-kind assistance from a third party (other than the Commonwealth) in respect of its Sub-Project.

6A The Proponent must, in respect of its Sub-Project, ensure that all equipment (new and second-hand) used as part of the Proponent’s Sub-Project complies with the requirements specified in clause 6A.1.


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The Proponent agrees that any use of second-hand equipment may involve higher risk than using new equipment, and is at the Proponent’s own risk. The Proponent further agrees that the Commonwealth has the rights specified in clause 6A.4.

7.1 and 7.2 The Proponent must not acquire any Asset with the Funding unless the Asset is specified in the contract or the Organisation has notified the Proponent that it has obtained the Department's prior written consent to the Proponent acquiring that Asset.

7.3 During the Activity Period, the Proponent must use each Asset it acquires with the Funds for its Sub-Project and in accordance with its contract with the Organisation.

7.4 and 17 The Proponent must comply, in respect of any Assets the Proponent acquires with the Funds, with requirements that are substantially the same as those specified in subclause 7.4 of this Agreement unless the Organisation obtains the Department's prior written consent to the contrary in respect of the Asset. The Proponent must comply with the requirement to maintain insurance in respect of any Asset it acquires. The Proponent is required to insure any Asset it acquires for the Asset's full replacement value.

7.5 The Proponent must not sell, cease to use or otherwise dispose of an Asset acquired with the Funds during the Term of this Agreement without the Organisation first obtaining the Department's written consent to the sale or disposal of that particular Asset.

7.6 The Proponent or the Organisation must reinstate any Asset acquired with the Funds that is lost, damaged or destroyed during the Term of this Agreement.

8 The Proponent must comply with requirements that are substantially the same as those specified in clause 8.

9 The Proponent must, in respect of its Sub-Project, comply with requirements that are substantially the same as those specified in clause 9.

10 The Proponent must be required to provide the following information and documents to the Organisation to enable the Organisation to comply with its requirements specified in clause 10 and Item 5 of the Schedule of this Agreement:

(a) information as specified in Item 5 of the Schedule regarding the Proponent's progress of its Sub-Project;

(b) where the Proponent receives Funding from the Organisation, within 60 Business Days after the completion of the Proponent’s Sub-Project:

(i) audited copies of the financial statements that meet the


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requirements of clause 10.2(a) to (d) (inclusive) and clause 10.4 of this Agreement in respect of any Funding paid by the Organisation to the Proponent for the Proponent's Sub-Project; and

(ii) the certificates specified in subclauses 10.3 and 10.6 regarding the Proponent's Sub-Project; and

(c) where the Proponent provides an Other Contribution to its Sub-Project but does not receive any Funding from the Organisation, within 40 Business Days following the completion of the Proponent’s Sub-Project the Proponent must provide the Organisation with all relevant information, including receipts and payments, relating to the expenditure of the Proponent’s Other Contribution to its Sub-Project.

11.2 The Proponent must provide information about the Proponent's GST status and ABN to the Organisation when requested by the Organisation.

12.2 Unless the Organisation notifies the Proponent otherwise, the Proponent may retain any Australian Government Material provided to it by the Organisation.

12.3 The Proponent must keep safely and maintain any Australian Government Material provided to it by the Organisation.

13.4 The Proponent must provide the Organisation with a licence (including a right of sub-licence) to use, reproduce, adapt and exploit the Intellectual Property Rights in any Activity Material or Existing Material that vests in the Proponent so as to enable the Organisation to grant the Commonwealth the licences required under subclauses 13.2 and 13.3 of this Agreement.

13.5 The Proponent must comply with requirements that are substantially the same as those contained in subclause 13.5 of this Agreement.

13.7 The Proponent to agree to provide the consents referred to in clause 13.7 of this Agreement.

14.3 If requested by the Organisation, the Proponent agrees to sign the written undertaking referred to in subclause 14.3 of this Agreement.

15 The Proponent must comply with requirements that are substantially the same as those contained in subclause 15.2.

17 The Proponent must comply with the insurance requirements contained in clause 17 and Item 10 of the Schedule to this Agreement.

18 The Proponent must immediately inform the Organisation if the Proponent becomes aware it has any Conflict regarding its performance of its Sub-


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Project, including in relation to the parties or programs (if any) specified in this Agreement.

19.5 The Proponent must comply with requirements that are substantially the same as those contained in subclauses 19.1 to 19.7 inclusive of this Agreement.

20.1 The Proponent must take all reasonable steps to minimise delay in completion of its Sub-Project.

20.3 The Proponent must immediately notify the Organisation if the Proponent becomes aware it will be delayed in progressing or completing its Sub-Project.

20.5 Except to the extent the Commonwealth notifies the Organisation otherwise, the Proponent must comply with the timeframes for completing its Sub-Project that are specified in its contract with the Organisation.

21 The Organisation must have a right in its contract with the Proponent to immediately terminate that contract for convenience if the Organisation defaults under this Agreement and that also reflects the terms of the Commonwealth's right in subclauses 21.1 to 21.6 of this Agreement.

The Proponent must comply with any requirements the Organisation requires to give effect to a notice of termination or reduction in scope issued by the Commonwealth under subclause 21.2 of this Agreement.

The Organisation must have a right in its contract with the Proponent to immediately terminate that contract for default where the Proponent has breached that contract. This right of the Organisation must reflect the Commonwealth's right of termination in subclause 21.7 of this Agreement.

23.5 The Proponent must warrant that it is not an employer that is currently not complying with the Workplace Gender Equality Act 2012 (Cth).

24 The Proponent must acknowledge the financial and other support it has received from the Commonwealth via the Organisation for its Sub-Project in any publications or public announcements the Proponent makes in accordance with requirements that are substantially the same as those specified in clause 24 of this Agreement and which have been approved by the Department

The Proponent agrees that the Commonwealth may report on the award of Funding to the Proponent in the manner specified in subclause 24.2 of this Agreement

The Proponent must provide a copy of any publication that is produced with the Funding to the Organisation.

25 In performing its Sub-Project, the Proponent must comply with all relevant


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statutes, regulations, by-laws and requirements of any Commonwealth, State, Territory or Local Authority.

In performing its Sub-Project, the Proponent must comply with any Commonwealth policies as notified to it by the Organisation.

26 The Proponent must comply with requirements that are substantially the same as those imposed on the Organisation in clause 26 of this Agreement.

27.2 Except to the extent the Organisation is expressly authorised to unilaterally vary its contract with a Proponent, no variation of that contract is binding unless it is agreed in writing and signed by the Organisation and the Proponent.

30 The Proponent must, in respect of its contract with the Organisation, comply with requirements that are substantially the same as those imposed on the Organisation in clause 30 of this Agreement.

32.5 The Proponent and the Organisation must agree to comply with a dispute resolution process that is substantially the same as the dispute resolution process specified in clause 32 of this Agreement.

36 The Proponent agrees to comply with requirements in respect of its Sub-Project that are substantially the same as those specified in clause 36 of this Agreement where the Proponent's Sub-Project involves building or construction activities.

37 The Proponent agrees to comply with requirements in respect of its Sub-Project that are substantially the same as those specified in clause 37 of this Agreement where the Proponent’s Sub-Project involves building or construction activities.

39 The Proponent agrees to provide all reasonable assistance to the Organisation as the Organisation requests for the purpose of the Commonwealth undertaking a final review of the Program.

40 The Proponent agrees to comply with any legislation, regulations, guidelines or codes of practice relating to animal welfare in force in the States or Territories where the Proponent's Sub-Project is performed.

40A The Proponent must agree to comply with the requirements specified in clause 40A and Item 15 of this Agreement.

40B The Proponent agrees to comply with requirements in respect of its Sub-Project that are substantially the same as those specified in clause 40B of this Agreement.


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Annexure B: Sub-Project Type Schedule : xxx-01xxxxxxxxxx 1. SUB-PROJECT TYPE

Objectives of the Sub-Project Type

1.1 [Brief overview of the Sub-Project Type and its Objectives (see Item 1 of the Schedule), noting that the Organisation is required to discuss in its final Activity Report and the Sub-Project Type Closure Report the extent to which its performance of the Activity met the Objectives]

Detailed Description of the Sub-Project Type

1.2 [Brief description of what the Organisation is required to do in performing the Sub-Project Type. Complete a table similar to the example below to detail each Proponent Sub-Project.]

Sub-Project ID Proponent/Irrigator Name Location (Nearest Town) Catchment Finish

Date*

Water Savings retained

by Irrigator

C’wealth Share of

Agreed Water Savings (ML)

for Sub-Project

Project Details (Description below to align with Sub-Project Type )

Demolition & Site Preparation

Paddock Earthworks

Micro Irrigation

Infrastructure

Supply, Drainage &

Storage, Earthworks

& Infrastructure

xxx-xx-001 YZ Blogs Baggie Murray xx/xx/2014 xx xx Y

xxx-xx-002 AB & CD Bloggs Green Murray xx/xx/2014 xx xx Y Y Y

Total xx xx

Demonstration and communication activities for the Sub-Project Type

1.3 [Description of any demonstration/communication activities the Organisation and the Proponents must perform].

Milestone Schedule for the Sub-Project Type: XXX.01 [e.g. Automation]

1.4 [Description of the Milestones (e.g.: the outcomes, products, stages or reports required for the Sub-Project Type) and the dates by which the Milestone must be met. The details in the table below are example only.]

Due DateGrant

FundingGST Inc.

Grant FundingGST Exc.

Signing of Funding Agreement Signed and executed Funding Agreement

Submission of correctly rendered invoice Invoice submitted to the Department with all requirements completed

$ $

Milestone Task Output Due DateGrant

FundingGST Inc.


Milestone 1 – Starts xxxx – Ends xxxx

Sign X % (X) Proponent Water Entitlement Transfer Contracts

Provision of a Communications Strategy Review of the Risk Management Strategy/Plan for

the Project

Documentation that clearly indicates the successful completion of the milestone task including, but not limited to:- X % (X) Water Entitlement Transfer Contracts

settled- Provision of a Communications Strategy- Provision of an updated Risk Management

Strategy/Plan

Completion of Milestone 1 (Date)Progress Report 1 submitted to the Department detailing Milestone 1 achievements (within 30 days following the completion date of the Milestone)

NB: Invoices will be processed subject to your report being deemed satisfactory to the Commonwealth

(Date) $ $


FundingGST Inc.




X % (X) Proponent Works Contracts signed X % (X) Sub-Projects commenced

Documentation that clearly indicates the successful completion of the milestone task including, but not limited to:- Next X % (X) Water Entitlement Transfer

Contracts settled- X % (X) Proponent Works Contracts signed



(Date) $ $

FYX Annual Financial and Audit Report submitted to the Department with all requirements completed (within 60 days after the Financial Year)

(Date)

Note: Case Manager to negotiate audited Financial Statement to be submitted at the end of each Financial Year by Delivery Partners

Department of the Environment Funding Agreement78


FundingGST Inc.




X % (X) Proponent Works Contracts signed X % (X) Sub-Projects commenced


Contracts settled- X% (X) Proponent Works Contracts signed



(Date) $ $



FundingGST Inc.




X% (X) Sub-projects completed incorporating final inspection and audit of works


Contracts settled- Provision of a Sub-project report confirming

that the Sub-Project has been completed - Provision of final inspection details together

with a proponent Declaration and photographic evidence that the works are complete

- X % (X) Sub-project independent audited financial statements completed (60 days after the end of the Sub-Project)



(Date) $ $



FundingGST Inc.





Preparation of X% (X) Sub-project independent audited financial statements

Documentation that clearly indicates the successful completion of the milestone task including:- Next X % (X) Water Entitlement Transfer

Contracts settled- Provision of a Sub-project report confirming



- X % (X) Sub-project independent audited financial statements completed (60 days after the end of the Sub-Project))



(Date) $ $



FundingGST Inc.





Documentation that clearly indicates the successful completion of the milestone task including, but not limited to:- Provision of a Sub-project report confirming



- X % (X) Sub-project independent audited financial statements completed (within 60 days after the end of the Sub-Project)



(Date) $ $



FundingGST Inc.





Documentation that clearly indicates the successful completion of the milestone task including, but not limited to:- Provision of a Sub-project report confirming



- X % (X) Sub-project independent audited financial statements completed (within 60 days after the end of the Sub-Project)

Completion of Milestone 7 (Date)Progress Report 7 submitted to the Department detailing Milestone 7 achievements (within 30 days following completion date of the Milestone)


(Date) $ $

Final Sub-Project Type Closure Report (within 60 Business Days following completion of the final Milestone of the Sub-Project Type)

(Date)

Final Report including an Independent Financial & Audit Report submitted to the Department with all requirements completed (within 60 Business Days prior to the end of the Activity Period )

(Date) $ $


2. FUNDING AND PAYMENT FOR THE SUB-PROJECT TYPE

FUNDING (clause 4 and 5)

2.1 The maximum GST-inclusive amount of Funding for the Sub-Project Type is $[xxxx]

2.2 The Funding for the Sub-Project Type will be paid at the times and in the manner specified in the Milestone Schedule.

3. ORGANISATION’S CONTRIBUTIONS AND OTHER CONTRIBUTIONS FOR THE SUB-PROJECT TYPE

ORGANISATION’S CONTRIBUTIONS

3.1 The Organisation’s Contributions (both cash and in-kind) for the Sub-Project Type are specified in the Budget Table in Item 4.

OTHER CONTRIBUTIONS

3.2 [Note: any contributions by Proponents should be listed as Other Contributions.] The Other Contributions (both cash and in-kind) for the Sub-Project Type are specified in the Budget Table in Item 4.

4. BUDGET FOR THE SUB-PROJECT TYPE

4.1 The Budget for the Sub-Project Type is specified in the following table:

Sub-Project ID

Commonwealth Funding

(GST Inc.)

Other (Proponent) Contributions Organisation Contributions

Total Costs excluding

in-kind

(GST Inc.)

Cash (GST Inc.)

In-Kind(GST Exc.)

Cash (GST Inc.)

In-Kind(GST Exc.)

xxx-xx-xxx

Sub-Total

Program Admin /Management

TOTALS

5. WATER ACCESS ENTITLEMENT ARRANGEMENTS FOR THE SUB-PROJECT TYPE

5.1 The total volume of any Water Access Entitlement(s) that are required to be Assigned to the Commonwealth for this Sub-Project Type is [insert volume ML].

5.2 This total volume is broken down by Proponent in the table set out at Item 1.2 of this Schedule.


THIS AGREEMENT is made on the day of , 2014

Executed by the Parties as a Deed

SIGNED for and on behalf of the COMMONWEALTH OF AUSTRALIA represented by the Department of Sustainability, Environment, Water, Population and Communities by a duly authorised representative

Name of authorised representative (print) Name of witness (print)

Signature of authorised representative Signature of witness

Date Date

[SELECT APPROPRIATE EXECUTION CLAUSE FROM THOSE SET OUT BELOW]

1. Entities comprised of several individuals (ie Ben Jones and Mary Jones ABN….)

SIGNED by [insert name of entity and ABN] by:

[Insert name of individual]in the presence of

Signature Name of witness (print)

Date Signature of witness

Dateand [Insert name of individual] in the presence of

Signature Name of witness (print)

Date Signature of witness

Date

2. Company – multiple directors


SIGNED SEALED AND DELIVERED by [Insert name of company and ABN] in accordance with section 127(1) of the Corporations Act 2001 (Cth) by

Name of Director (print) Name of Director / Company Secretary (print)

Signature of Director Signature of Director / Company Secretary

Date Date

3. Company – sole director

SIGNED SEALED AND DELIVERED by [Insert name of company and ABN] in accordance with section 127(1) of the Corporations Act 2001 (Cth) by

Name of Sole Director (print) Name of witness (print)

Signature of Sole Director Signature of witness

Date Date

4. Partnership or unincorporated association

SIGNED SEALED AND DELIVERED for and on behalf of [insert name of partnership / association and ABN] by a duly authorised representative who warrants that they have the authority to sign this Deed on behalf of [insert name of partnership / association]

in the presence of:

Name of authorised representative (print) Name of witness (print)

Signature of authorised representative Signature of witness

Date Date

5. Incorporated Association not using Common Seal

SIGNED, SEALED AND DELIVERED


for and on behalf of [insert name of Incorporated Association and ABN] by [insert name of Signatory] who by signing warrants that they have the authority to bind [insert name of Incorporated Association] in the presence of:

Signatory

sign here

Witness

sign here

Name and address of Witness

please print

6. Incorporated Association Using Common Seal

The Common Seal of [insert name of Incorporated Association and ABN] was affixed to this document in accordance with its Rules by [insert name of Signatory] who by signing warrants that they have the authority to bind [insert name of Incorporated Association] in the presence of:

Affix common seal:

Signatory

sign here

Witness

sign here

Name and address of Witness

please print


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