DEED OF STANDING
OFFER
Deed of Standing Offer for
engagement of a Delivery Partner
as part of the Commonwealth On
Farm Further Irrigation Efficiency
Programme
Deed reference no. [Insert]
Commonwealth of Australia as represented by
the Department of Agriculture and Water
Resources
ABN 24 113 085 695 (Department)
[Insert name and ABN of Delivery Partner]
(Delivery Partner)
Note to drafter: This template Deed of Standing Offer is intended for the
engagement of a Delivery Partner to provide Services as part of the
Commonwealth On Farm Further Irrigation Efficiency Programme.
To prepare this Deed for use:

complete the Parties’ details on page 5;

insert the relevant execution block on the Execution Page;

complete the Schedules; and

address and delete all drafting notes (like this one) and yellow highlighted
notes throughout the document.
Do not amend the clauses of this Deed without first consulting the General
Counsel Branch.
Table of contents
Table of contents
3
Details
6
Agreed Terms
8
Part 1 – Deed specific provisions
8
1.
Interpretation and priority of Deed documents
8
2.
Duration of Deed
8
3.
Delivery of the On-going Services
8
4.
Standing offer to deliver the Project Services
9
5.
Formation of Project Agreements
10
6.
Termination of Deed
10
Part 2 – Project Agreement specific provisions
13
7.
Interpretation and priority of Project Agreement documents
13
8.
Delivery of the Project Services
13
9.
Planning and design
14
10.
Conduct of the Works
14
11.
Assumption of risks for the Project
16
12.
Performing Works on third parties’ Property
17
13.
Compliance with Building Code 2013
17
14.
Australian Government Building and Construction WHS Accreditation
Scheme
19
15.
Indigenous Procurement Policy
19
16.
Payment
21
17.
GST
22
18.
Termination of Project Agreement
23
19.
Survival (Project Agreement)
24
Part 3 – Provisions applicable to Deed and Project Agreements
25
20.
General obligations of Delivery Partner
25
21.
Provision of Services
25
22.
Personnel and subcontracting
26
23.
Monitoring progress
29
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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24.
Performance assessment
29
25.
Intellectual Property Rights
30
26.
Moral Rights
32
27.
Indemnity and release
33
28.
Insurance
34
29.
Work health and safety
35
30.
Compliance with water market, charge and trading rules
36
31.
Confidential Information
37
32.
Protection of Personal Information
38
33.
Access to documents
39
34.
Conflict of Interest
39
35.
Security
40
36.
Books and records
41
37.
Audit and access
42
38.
Workplace Gender Equality
43
39.
Unforeseen events
44
40.
Dispute resolution
44
41.
Notices and other communications
46
42.
Survival (Deed and any Project Agreement)
47
43.
Miscellaneous
48
44.
Definitions and interpretation
49
Schedule 1 - Deed Details
60
Schedule 2 – On-going Services
63
Schedule 3 – Managing delivery of Services
65
Schedule 4 – Pricing Methodology
66
Schedule 5 – Eligibility Requirements
68
Schedule 6 – Project Proposals
70
Schedule 7 – Project Order
71
Schedule 8 – Works & Transfer Agreement Requirements
80
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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Schedule 9 – Template Water Transfer Deed
83
Execution page
84
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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Details
Parties
1.
The Commonwealth of Australia as represented by the Department of
Agriculture and Water Resources ABN 24 113 085 695 (Department).
2.
[Insert name and ABN of Delivery Partner] (Delivery Partner).
Recitals
A. The Commonwealth is working together with Murray-Darling Basin states to deliver
on the commitments of the Murray-Darling Basin Plan 2012 (the Basin Plan) to
restore the Basin’s rivers and wetlands to health while supporting strong regional
communities and sustainable food production. As part of these efforts, measures are
being implemented to:
(i) promote efficient water use, especially in irrigation, through infrastructure
projects in the Basin; and
(ii) transfer water savings to the Commonwealth to increase the volume of water
available for environmental use.
B. It is in this context that the Department is undertaking the Commonwealth On Farm
Further Irrigation Efficiency Programme (the Programme). The Programme is funded
from the Water for the Environment Special Account established under section
86AB(1) of the Water Act.
C. The Department has engaged the Delivery Partner to assist in implementation of the
Programme through the delivery and completion of Projects.
D. The Delivery Partner must provide the Services, comprising:
(i) the On-going Services - including working with Eligible Irrigators to encourage
interest in the Programme, assisting them to develop draft project proposals,
and providing Project Proposals for the Department’s consideration; and
(ii) subject to the Department’s endorsement of a Project Proposal and issue of a
Project Order to the Delivery Partner (creating a Project Agreement for that
Project), the Project Services - including:
i. entering into a legally binding Works & Transfer Agreement with the
Eligible Irrigator identified in the Project Order (with that Eligible
Irrigator then referred to as the Proponent);
ii. facilitating the transfer of an agreed volume of Eligible Water
Entitlements from the Proponent to the Commonwealth using a Water
Transfer Deed;
iii. providing Reports to the Department in relation to the Project;
iv. managing the project and work being undertaken by the Proponent or
other sub-contractors according to the milestones contained in the
Works and Transfer Agreement;
v. making payments to the Proponent and any sub-contractors employed
by the Delivery Partner in accordance with the achievement of
outcomes contained in the Works and Transfer Agreement’ and
vi. completing the Works.
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E. The Delivery Partner acknowledges that there is no guarantee or assurance of any
particular volume of Project Orders or business under this Deed.
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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Agreed Terms
Part 1 – Deed specific provisions
1.
Interpretation and priority of Deed documents
1.1
Definitions and rules of interpretation
Definitions and rules of interpretation for this Deed are specified in clause 44.
Defined terms can be identified in the Deed by commencing with a capital letter
1.2
Priority of documents for Deed purposes
If there is inconsistency between any of the documents forming part of this Deed,
those documents will be interpreted in the following (descending) order of priority to
the extent of any inconsistency:
(a)
the Agreed Terms;
(b)
the Schedules (in their order of appearance);
(c)
any attachments to the Schedules; and
(d)
documents incorporated by reference in this Deed.
2.
Duration of Deed
2.1
Initial Deed Period
2.2
(a)
This Deed begins on the Commencement Date and continues in relation to ongoing services for the duration of the Initial Deed Period unless terminated in
accordance with clause 6 or clause 39.3, or extended in accordance with
clause 2.2.
(b)
The Deed begins on the Commencement Date and continues in relation to
project services for the period stated in Item 3 of Schedule 7 (the Project Order)
for each Project.
Option to extend Deed Period
(a)
The Deed Period may be extended by the Department for further period(s),
specified in Item 7 of the Deed Details (each an Option Period), on the terms
and conditions then in effect, by giving notice to the Delivery Partner. Such
notice must be given at least:
(i)
30 days; or
(ii)
such other period specified in Item 8 of the Deed Details (Option
Notice Period),
before the end of the then current Deed Period.
(b)
Any extension in accordance with this clause 2.2 takes effect from the end of
the then current Deed Period.
3.
Delivery of the On-going Services
3.1
Obligation to provide On-going Services
The Delivery Partner must provide the On-going Services throughout the Deed
Period in accordance with:
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3.2
(a)
the Performance Criteria;
(b)
any reasonable directions in relation to the On-going Services at Schedule 2
given by the Department from time to time; and
(c)
otherwise in accordance with the requirements of this Deed.
No payment due for On-going Services
The Delivery Partner acknowledges that no Fees or other payment will be made by
the Department to the Delivery Partner for provision of the On-going Services.
4.
Standing offer to deliver the Project Services
4.1
Standing offer
The Delivery Partner makes an irrevocable standing offer to supply the Project
Services to the Department for the Fees and on the terms and conditions set out in
this Deed.
4.2
Fees
The Fees payable to the Delivery Partner for delivering the Project Services and
completing Projects will be calculated using the Pricing Methodology and specified
in the relevant Project Order.
4.3
Issuing a Project Order
(a)
Subject to clause 4.3(b) and in response to a Proposal provided as part of the
On-going Services, the Department may issue the Delivery Partner with a
Project Order.
(b)
The Delivery Partner acknowledges that the Department has absolute
discretion about whether to issue a Project Order and that the Department:
(c)
(i)
is not obliged to issue a Project Order following receipt of a Proposal;
(ii)
may require a Proponent to amend and resubmit a Proposal where the
Department reasonably believes that a Proposal does not meet the
requirements of Schedule 6, provides insufficient detail or is otherwise
inconsistent with this Deed; and
(iii)
will respond to the Delivery Partner within ten (10) business days of
receipt of a proposal either issuing a Project Order, declining a
proposal, or requesting the Delivery Partner to amend and resubmit a
proposal.
In determining whether to exercise its discretion to issue a Project Order, the
Department may have regard to any matter it considers relevant, including:
(i)
the amount of any appropriation available for the Programme;
(ii)
the volume of Eligible Water Entitlements or particular categories of
Eligible Water Entitlements sought to be acquired by the
Commonwealth across the Basin or within particular Eligible
Catchments;
(iii)
the Eligibility Requirements for the Programme;
(iv)
the performance of the Delivery Partner in providing Services under this
Deed and any previous or then current Project Agreement; and
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(v)
4.4
the assessed capacity of the Delivery Partner to provide Project
Services in particular Eligible Catchments or with particular groups of
Eligible Irrigators, as demonstrated by:
(A)
any expression of interest or request for tender process leading to
the execution of this Deed; and/ or
(B)
the performance of the Delivery Partner in providing Project
Services under any previous or current Project Agreement; and/or
(C)
an assessment of their capacity to provide Project Services in
addition to those under any current Project Agreements..
No guarantee
(a)
Despite any other provision of this Deed, the Department does not guarantee
or make any assurance that it will issue any Project Orders under this Deed.
(b)
Despite any other provision of this Deed, the Department may obtain the
Services from any source it chooses.
5.
Formation of Project Agreements
5.1
When a Project Agreement is formed
5.2
(a)
A Project Agreement is formed between the Commonwealth and the Delivery
Partner when the Department issues a signed Project Order under clause
4.3(a) in response to a Proposal.
(b)
The parties agree that there is no maximum or minimum number of Project
Agreements that may be created during the Deed Period.
Completion of Items
To the extent that the parties have not completed Items in a Project Order, unless
otherwise stated in the Project Order or this Deed, those Items will be taken to be
‘not applicable’ for the purposes of this Deed and the relevant Project Agreement.
5.3
Terms and conditions
The terms and conditions of each Project Agreement are:
(a)
the terms and conditions specified in the signed Project Order;
(b)
clauses 7 to 19 (inclusive) of this Deed; and
(c)
clauses 20 to 44 of this Deed, except that any references in those clauses to:
(i)
‘this Deed and any Project Agreement’ or ‘this Deed and any relevant
Project Agreement’ are taken to be a reference to ‘this Project
Agreement’; and
(ii)
‘Services’ is taken to be a reference to the ‘Project Services’ specified in
the relevant Project Order.
6.
Termination of Deed
6.1
Termination for convenience
(a)
The Department may, at any time, by notice, terminate this Deed, including for
or as a result of a machinery of government change. On receipt of a notice of
termination the Delivery Partner must:
(i)
stop work as specified in the notice; and
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(ii)
6.2
take all available steps to minimise loss resulting from that termination
and to protect Department Material.
(b)
If this Deed is terminated under clause 6.1(a), the Department is liable only for
reasonable costs actually incurred by the Delivery Partner and directly
attributable to the termination.
(c)
The Delivery Partner is not entitled to compensation for loss of prospective
profits.
Termination for default
(a)
(b)
Without limiting any other rights or remedies the Department may have against
the Delivery Partner arising out of or in connection with this Deed or any Project
Agreement, the Department may terminate this Deed effective immediately by
giving notice to the Delivery Partner if:
(i)
the Delivery Partner breaches a material provision of this Deed where
that breach is not capable of remedy;
(ii)
the Delivery Partner breaches any provision of this Deed and fails to
remedy the breach within 14 days after receiving notice requiring it to do
so;
(iii)
in the opinion of the Department, a Conflict of Interest exists which
would prevent the Delivery Partner from performing its obligations under
this Deed; or
(iv)
an event specified in clause 6.2(c) happens to the Delivery Partner.
Without limitation, for the purposes of clause 6.2(a)(i), each of the following
constitutes a breach of a material provision:
(i)
breach of warranty under clause 21.2 (Delivery Partner warranties);
(ii)
a failure to comply with clause 22 (Personnel);
(iii)
a failure to comply with clause 25 (Intellectual Property Rights);
(iv)
a failure to comply with clause 28 (Insurance)
(v)
a failure to comply with clause 29 (Work health and safety);
(vi)
a failure to comply with clause 31 (Confidentiality and privacy);
(vii) a failure to comply with clause 32 (Protection of Personal Information);
(viii) a failure to comply with clause 33 (Access to documents);
(c)
(ix)
a failure to notify the Department of a Conflict of Interest under
clause 34 (Conflict of Interest);
(x)
a failure to comply with clause 35 (Security); or
(xi)
a failure to comply with clause 38 (Workplace Gender Equality).
The Delivery Partner must notify the Department immediately if:
(i)
the Delivery Partner is a corporation and there is any change in the
direct or indirect beneficial ownership or control of the Delivery Partner;
(ii)
the Delivery Partner disposes of the whole or any part of its assets,
operations or business other than in the ordinary course of business;
(iii)
the Delivery Partner ceases to carry on business;
(iv)
the Delivery Partner ceases to be able to pay its debts as and when
they become due;
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(v)
the Delivery Partner is a corporation and enters into liquidation or has a
controller or managing controller or liquidator or administrator
appointed;
(vi)
the Delivery Partner is a natural person and is declared bankrupt or
assigns his or her estate for the benefit of creditors; or
(vii) the Delivery Partner is a partnership and any step is taken to dissolve
that partnership.
(d)
6.3
In this clause, controller, managing controller and administrator have the
same meanings as in the Corporations Act.
After termination
On termination of this Deed the Delivery Partner must:
6.4
(a)
stop work on the On-going Services;
(b)
deal with Department Material as reasonably directed by the Department; and
(c)
return all the Department’s Confidential Information relating to delivery of the
On-going Services to the Department.
Termination does not affect
Termination of this Deed does not affect:
(a)
any accrued rights or remedies of a party; or
(b)
the continuance of any Project Agreement formed under this Deed.
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Part 2 – Project Agreement specific provisions
7.
Interpretation and priority of Project Agreement
documents
7.1
Definitions and rules of interpretation
Definitions and rules of interpretation for this Project Agreement are specified in
clause 44.
7.2
Priority of documents for Project Agreement purposes
If there is inconsistency between any of the documents forming part of this Project
Agreement, those documents will be interpreted in the following order of priority to
the extent of any inconsistency:
7.3
(a)
the relevant Project Order;
(b)
the Deed;
(c)
the attachments to the relevant Project Order; and
(d)
any other document referred to in the relevant Project Order.
Duration of Project Agreement
This Project Agreement begins on the Start Date and continues for the duration of
the Project Agreement Period unless terminated earlier in accordance with Law or
the terms of the Deed or this Project Agreement.
8.
Delivery of the Project
8.1
Obligation to provide Project Services and complete the Project
The Delivery Partner must deliver the Project and provide the Project Services
including:
(a)
entering into a Works & Transfer Agreement with the Eligible Irrigator specified
in Item 5 of the Project Order;
(b)
ensuring that the relevant Proponent enters into a Water Transfer Deed with
the Commonwealth and completes the transfer of an Eligible Water Entitlement
to the Commonwealth of the type and in the volume specified in Item 6 of the
Project Order; and
(c)
completing the Works,
as specified in the Project Order.
8.2
Standard for delivery of Project Services and completion of the Project
In complying with clause 8.1, the Delivery Partner must ensure that the Project
Services are provided in accordance with:
(a)
the Performance Criteria;
(b)
any Milestones (including dates);
(c)
any reasonable directions in relation to the Project Services given by the
Department from time to time;
(d)
in relation to the Works, that they are designed in accordance with clause 9 and
completed in accordance with clause 10,
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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and otherwise in accordance with the requirements of the Deed and this Project
Agreement.
9.
Planning and design
9.1
Design
(a)
The Delivery Partner is responsible for the design and specifications of the
Works and must maintain copies of all documents necessary to complete the
Works in accordance with this Project Agreement.
10.
Conduct of the Works
10.1
Performance of the Works
(a)
10.2
(i)
ensure that all Approvals are obtained relevant to the conduct and
completion of the Works;
(ii)
ensure that the Works are carried out:
(A)
in accordance with the Approvals for the Works;
(B)
in accordance with the requirements and standards of all Laws
applicable to the Works;
(C)
diligently, effectively and to a high professional standard; and
(D)
so as to ensure that the Works will be fit for their intended
purpose.
(iii)
comply with the timeframes (including any Milestones) specified in the
Project Order for completion of the Works or a specific part of the Works
and the Project more generally; and
(iv)
complete the Works in accordance with clause 10.5(b).
Commencement of the Works
(a)
(b)
10.3
The Delivery Partner must:
Without limiting the Delivery Partner’s obligations under this Project Agreement,
the Delivery Partner must not commence the Works or allow the Works to
commence until:
(i)
the transfer of Eligible Water Entitlements contemplated under clause
8.1(b)has been completed;
(ii)
all relevant Approvals as required under clause 10.1 have been
obtained by the Proponent; and
(iii)
all insurances required under clause 28.2 have been obtained.
The Delivery Partner must notify the Department in writing when the
requirements of clause 10.2(a) above have been met (and prior to the
commencement of the Works).
Inspection of Works and design
(a)
At all reasonable times and upon giving notice of at least five Business Days:
(i)
during the construction of the Works; and
(ii)
during the period of 24 months following the Completion Date,
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the Department or persons authorised by the Department may enter the
Property to inspect the Works, subject to the Delivery Partner’s and the
Proponent’s reasonable requirements in relation to safety and security.
(b)
10.4
Despite the Department‘s right to inspect the construction or conduct of the
Works (as contemplated by clause 10.3(a)):
(i)
the Department is not obliged to review the suitability of the design,
Project documents or specifications or the fitness of those materials for
their intended purpose;
(ii)
the Department is not obliged to check the construction of the Works for
any defect, fault or omission; and
(iii)
the Delivery Partner is not relieved of responsibility for any defect, fault
or omission in respect of the Works, the design or the Project
documents.
Variations to the Works
(a)
The Delivery Partner must notify the Department in writing, and seek the
Department’s approval, for all proposed variations to the Works that would or
might reasonably be expected to have a material effect on:
(i)
the cost of completing the Works when the proponent would for the first
time be required to make a contribution, or the proponent would be
required to make a substantially greater contribution, to complete the
works; or
(ii)
the timeframes for completion of the Works or the Project where a risk
that the works will not be completed within 3 years becomes apparent;
or
(iii)
the capacity of the works to deliver the expected water savings; or
(iv)
the fitness of the Works for their intended purpose of providing at least
equivalent farm outputs with less water; or.
(v)
the Approvals obtained in relation to the Works.
The Delivery Partner must also ensure that the Works are not progressed
unless and until the Department has granted its approval.
(b)
The Department will not withhold its approval under clause 0 provided that, in
the Department’s opinion, the variation required to obtain the Approval will not
adversely affect the Project, the Works, and achievement of the objectives of
the Programme or the use of the Works.
(c)
The Department will be deemed to have provided its consent to any variation if
the Department has not responded to the Delivery Partner’s notice within 10
Business Days of the date of that notice. For the avoidance of doubt the
Department is not required to make a decision as to whether it will provide
consent within this 10 Business Day period and may, in its response to the
Delivery Partner, require further time to make a decision.
(d)
If the Department requires, the Delivery Partner must provide to the
Department any information in relation to proposed variations in such format as
may be specified by the Department in writing from time to time.
(e)
In relation to any variation other than as described in clause 0, the Delivery
Partner may vary the Works at its own discretion without the consent in writing
of the Department.
(f)
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10.5
Completion of the Works
(a)
The Delivery Partner must notify the Department when the Works have been
completed in accordance with clause 10.5(b).
(b)
In order to achieve completion in respect of the entire Works or a specific part
of the Works:
(i)
the Works (or the specific part of the Works) must be:
(A)
(B)
(ii)
complete and free from errors, omissions and defects, except for
errors, omissions or defects that:
1.
are of a minor nature;
2.
the immediate making good of which by the Delivery
Partner is not reasonably practicable;
3.
the existence of which will not significantly inconvenience
users of the Property or the Works in the time until it is
made good;
4.
the making good of which by the Delivery Partner at a later
time when the Works are in use will not significantly
inconvenience users of the Property or the Works; and
5.
which do not cause any legal or physical impediment to the
use and occupation of the Property and the Works.
fit for their intended purpose;
if requested by the Department, the Delivery Partner must obtain from:
(A)
the Delivery Partner Representative; and
(B)
a suitably qualified and independent person engaged for the
purposes of inspecting the Works (or the specific part of the
Works) on their completion and determining whether, in the
professional opinion of that person, the Works (or the specific part
of the Works) meet the requirements set out in clauses
10.5(b)(i)(A) and 10.5(b)(i)(B),
written confirmation that the Works (or the specific part of the Works)
meet the requirements set out in clauses 10.5(b)(i)(A) and 10.5(b)(i)(B),
and provide each such written certification to the Department.
10.6
Defects after completion
(a)
The Delivery Partner must promptly rectify any defects, faults or omissions in
the Works or ensure that such defects, faults or omissions in the Works are
promptly rectified, including defects, faults or omissions which become
apparent after the date that the works are completed in accordance with clause
10.5(b) and which:
(i)
are not within the scope of the exceptions referred to in clause
10.5(b)(i)(A); or
(ii)
would reasonably be expected to negatively affect the use, enjoyment
and/or safety of the Works or the Property.
11.
Assumption of risks for the Project
11.1
Responsibility for the Project
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The Delivery Partner is fully responsible for the delivery of the Project, and for
ensuring compliance with the requirements of this Project Agreement and all Laws,
and will not be relieved of that responsibility because of any:
11.2
(a)
involvement by the Department or any third party (including a Proponent or
other subcontractor) in the performance of the Project;
(b)
payment of the Fees made to the Delivery Partner on account of the Project; or
(c)
contracting or subcontracting of all or any part of the Project Services.
Acceptance of risk
The Delivery Partner accepts all risks in respect of, and the Department does not
accept any risk for, the conduct of the Project Services including all risks of, and
associated with, the design, construction and use of the Works, and the risk of the
actual cost of the design, construction and commissioning of the Works being
greater than anticipated in a Proposal or exceeding the Fees.
11.3
Responsibility for managing exposure and risk
It is the responsibility of the Delivery Partner to manage its exposure and risk
through its contracts with any third party (including a Proponent or other
subcontractor).
12.
Performing Works on third parties’ Property
12.1
Permission from the owner of the Property
(a)
This clause 12 applies where Works are to be performed on Property for which
the Proponent or a person other than the Delivery Partner is the registered
proprietor.
(b)
The Delivery Partner represents and warrants to the Department that, prior to
commencement of the Works in accordance with clause 10.2, the Delivery
Partner has executed a Works & Transfer Agreement or other legally binding
agreement with the registered proprietor of the Property (or the relevant part of
the Property) that allows the Delivery Partner to fully comply with its obligations
under this Project Agreement.
(c)
The Delivery Partner acknowledges and agrees that the Department has relied,
and will continue to rely, on the Delivery Partner’s representation and warranty
in clause 12.1(b) in paying the Fees in consideration for delivery of the Project,
performance of the Project Services and to achieve the objectives of the
Programme.
(d)
If the Department requires, the Delivery Partner must provide the Department
with a copy of all legally binding agreements that it has entered into with the
registered proprietor of the Property (or any part of the Property).
13.
Compliance with Building Code 2013
13.1
Requirement to comply with Building Code
(a)
The Delivery Partner must comply with the Building Code 2013 (Building
Code). Copies of the Building Code are available at
www.employment.gov.au/BuildingCode.
(b)
Compliance with the Building Code does not relieve the Delivery Partner from
responsibility for performance of this Project Agreement, or from liability for any
defect in the Works arising from compliance with the Building Code.
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(c)
13.2
Where a change in the Project Agreement is proposed and that change would
affect compliance with the Building Code, the Delivery Partner must submit a
report to the Department specifying the extent to which the Delivery Partner’s
compliance with the Building Code will be affected.
Maintaining records of compliance
The Delivery Partner must maintain adequate records of compliance with the
Building Code by the Delivery Partner, its subcontractors, consultants and related
entities (refer section 8 of the Building Code).
13.3
Consequences of failure to comply
If the Delivery Partner does not comply with the requirements of the Building Code
in the performance of this Project Agreement such that a sanction is applied by the
Minister for Employment, the Code Monitoring Group or the Commonwealth,
without prejudice to any rights that would otherwise accrue, those parties shall be
entitled to record that non-compliance and take it, or require it to be taken, into
account in the evaluation of any future tenders that may be lodged by the Delivery
Partner or a related entity in respect of work funded by the Commonwealth or its
agencies.
13.4
Assessing tenders
While acknowledging that value for money is the core principle underpinning
decisions on Commonwealth procurement, when assessing tenders, the Delivery
Partner may give preference to subcontractors and consultants that have a
demonstrated commitment to:
13.5
(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.
Subcontracting and inspection
(a)
(b)
The Delivery Partner must not appoint a subcontractor or consultant in relation
to the Project where:
(i)
the appointment would breach a sanction imposed by the Minister for
Employment; or
(ii)
the subcontractor or consultant has had an adverse Court or Tribunal
decision (not including decisions under appeal) for a breach of
workplace relations law, work health and safety law, or workers’
compensation law and the tenderer has not fully complied, or is not fully
complying, with the order.
The Delivery Partner agrees to require that it and its subcontractors or
consultants and its related entities provide the Commonwealth or any person
authorised by the Commonwealth, including a person occupying a position in
the Fair Work Building Industry Inspectorate, with access to:
(i)
inspect any Work, material, machinery, appliance, article or facility;
(ii)
inspect and copy any record relevant to the Project the subject of this
Project Agreement; and
(iii)
interview any person as is necessary to demonstrate its compliance with
the Building Code.
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(c)
Additionally, the Delivery Partner agrees that the Delivery Partner and its
related entities will agree to a request from the Commonwealth or any person
authorised by the Commonwealth, including a person occupying a position in
the Fair Work Building Industry Inspectorate, to produce a specified document
within a specified period, in person, by fax or by post.
(d)
The Delivery Partner must ensure that all subcontracts impose obligations on
subcontractors’ equivalent to the obligations under this clause 13.
14.
Australian Government Building and Construction
WHS Accreditation Scheme
14.1
Interpretation
In this clause 14:
14.2
(a)
Building Industry Act means the Fair Work (Building Industry) Act 2012
(Cth);
(b)
building work has the same meaning as it has in section 5 of the Building
Industry Act; and
(c)
Scheme means the Australian Government Building and Construction WHS
Accreditation Scheme established under the Building Industry Act.
Compliance with Scheme
While undertaking building work for the purposes of delivering Project Services, the
Delivery Partner must:
(a)
maintain accreditation under the Scheme; and
(b)
comply with all conditions of Scheme accreditation.
15.
Indigenous Procurement Policy
15.1
Interpretation
In this clause 15:
15.2
(a)
Indigenous enterprise means an organisation that is 50 per cent or more
Indigenous owned that is operating a business;
(b)
Indigenous Participation Plan means a plan developed and approved in
accordance with clause 15.4;
(c)
Indigenous Procurement Policy means the Commonwealth’s Indigenous
Procurement Policy as amended from time to time, details of which are
available at the Commencement Date at: http://www.dpmc.gov.au/indigenousaffairs/publication/commonwealth-indigenous-procurement-policy; and
(d)
Remote Area has the meaning given to that term in the Indigenous
Procurement Policy.
Requirement to increase purchasing from Indigenous enterprises and
employment of Indigenous Australians
(a)
The Delivery Partner acknowledges that it is the Commonwealth’s policy to
stimulate Indigenous entrepreneurship and business development, providing
Indigenous Australians with more opportunities to participate in the economy.
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(b)
The Delivery Partner must use its reasonable endeavours to increase its:
(i)
purchasing from Indigenous enterprises; and
(ii)
employment of Indigenous Australians,
in the delivery of the Project and conduct of the Project Services.
(c)
15.3
For the purposes of clause 15.2(b), purchases from Indigenous enterprises
may be in the form of engagement of an Indigenous enterprise as a
subcontractor, and use of Indigenous suppliers in the Delivery Partner's supply
chain.
Reporting
Subject to clause 15.4(b)(ii), the Delivery Partner must provide a written report and
evidence of its compliance with this clause 15 every year during the Project
Agreement Period as part of every second biannual report as required in the
Management Schedule (Schedule 3).
15.4
Policy application to High Value Contracts
The following clause applies if the Fees payable under a Project Agreement exceed
$7.5 million.
(a)
If during the Project Agreement Period the amount of the Fees likely to
become payable under this Project Agreement exceeds $7.5 million, then this
Project Agreement will become a ‘High Value Contract’ for the purposes of the
Indigenous Procurement Policy, in which case the Delivery Partner must:
(i)
(ii)
(b)
within 20 Business Days after the $7.5 million amount of Fees is agreed
(either upon issue of the relevant Project Order or by later variation to
this Project Agreement in accordance with clause 43.2), develop an
Indigenous Participation Plan that addresses:
(A)
how the Delivery Partner intends on meeting the mandatory
minimum requirements specified in the Indigenous Procurement
Policy;
(B)
the Delivery Partner's current rate of Indigenous employment and
supplier use;
(C)
the Delivery Partner's commitment to Indigenous participation;
and
(D)
if any part of the Project is being or will be delivered in a Remote
Area, how the Delivery Partner will ensure that its provision of the
Project Services will deliver significant Indigenous employment or
supplier use outcomes in that Remote Area; and
submit the draft Indigenous Participation Plan to the Department for its
review and, if appropriate, approval.
Upon approval of the draft Indigenous Participation Plan under clause
15.40(ii), the Delivery Partner must:
(i)
comply with the Indigenous Participation Plan (which will by variation in
accordance with clause 43.2 be included as an attachment to this
Project Agreement);
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(ii)
report against its compliance with the Indigenous Participation Plan in
accordance with the Management Schedule during the Project
Agreement Period; and
(iii)
comply with any reasonable directions issued by the Department
Representative in relation to the Delivery Partner's implementation of
the Indigenous Participation Plan.
16.
Payment
16.1
Obligation to pay Fees
Subject to this clause 16 and the Project Services meeting Project Agreement
requirements including the Performance Criteria, the Department must pay to the
Delivery Partner the Fees.
(a) The Pricing Methodology, Administrative costs of the Delivery Partner, payment
schedule and invoicing requirements are set out in Schedule 4 of the Deed.
16.2
Delivery Partner to provide invoice
The Delivery Partner must provide a correctly rendered invoice to the Department
for the Fees in accordance with the requirements specified in Schedule 4.
16.3
Due date for payment
The Department will pay the Delivery Partner within 30 days after receipt of a
correctly rendered invoice. If this period ends on a day that is not a Business Day,
payment is due on the next Business Day.
16.4
Interest for late payment in certain circumstances
(c)
This clause 16.4 only applies where:
(i)
the total Fees payable under this Project Agreement do not exceed
$1 million (GST inclusive); and
(ii)
the amount of the interest payable exceeds $10.
(d)
The Department will pay interest on late payments to the Delivery Partner for
payments made by the Department more than 30 days after the amount
became due and payable.
(e)
Interest payable under this clause 16.4 will be simple interest on the unpaid
amount at the General Interest Charge Rate, calculated in respect of each
day from the day after the amount was due and payable, up to and including
the day that the Department effects payment as represented by the following
formula:
SI = UA x GIC x D
Where:
16.5
SI
=
simple interest amount;
UA
=
the unpaid amount;
GIC
=
General Interest Charge Rate daily rate; and
D
=
the number of days from the day after payment was due up to
and including the day that payment is made.
Incorrect invoices, under / over payment
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If an invoice is found to have been rendered incorrectly after payment, any
underpayment or overpayment will be recoverable by or from the Delivery Partner,
as the case may be, and, without limiting recourse to other available means, may
be offset against any amount subsequently due by the Department to the Delivery
Partner under this Project Agreement or any other Project Agreement formed under
the Deed.
16.6
16.7
Expenses
(a)
The Delivery Partner must not charge the Department for any fees, charges or
expenses (including travel and accommodation, document reproduction,
transportation and courier charges, bank charges, and telecommunications
charges) in addition to the Fees.
(b)
Subject to clause 16.4, the Department is under no obligation to pay any
amount in excess of the Fees.
Taxes
The Delivery Partner must pay:
16.8
(a)
all stamp duty (including penalties and interest) assessed or payable in respect
of this Project Agreement and the delivery of the Project Services; and
(b)
subject to clause 17, all taxes, duties and government charges imposed or
levied in Australia or overseas in connection with the performance of this
Project Agreement.
Interest on payments to the delivery partner
(a)
Any interest accruing to the Delivery Partner on fees paid to the Delivery
Partner by the Department are the Delivery Partners.
(b)
Interest may be used for any purpose at the discretion of the Delivery Partner
both purposes relating to the conduct of projects including the payment of
expenses, any taxes, and make good expenses, but also expenses not related
to the project.
(c)
Interest on the fees associated with one project can be used for expenses,
taxes and costs associated with any other project.
17.
GST
17.1
Interpretation
In this clause 17, a word or expression defined in the GST Act has the meaning
given to it in that Act.
17.2
GST gross up
If a party (Supplier) makes a supply under or in connection with this Project
Agreement in respect of which GST is payable, the recipient of the supply
(Recipient) must pay to the Supplier an additional amount equal to the GST
payable on the supply (GST Amount).
17.3
Reimbursements
If a party must reimburse or indemnify another party for a loss, cost or expense, the
amount to be reimbursed or indemnified is first reduced by any input tax credit the
other party is entitled to for the loss, cost or expense, and then increased in
accordance with clause 17.2.
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17.4
Exclusion of GST from calculations
If a payment is calculated by reference to or as a specified percentage of another
amount or revenue stream, that payment will be calculated by reference to or as a
specified percentage of the amount or revenue stream exclusive of GST.
17.5
17.6
Adjustments
(a)
If the GST payable by a Supplier on any supply made under or in connection
with this Project Agreement varies from the GST Amount paid or payable by
the Recipient under clause 17.2 such that a further amount of GST is payable
in relation to the supply or a refund or credit of GST is obtained in relation to
the supply, then the Supplier will provide a corresponding refund or credit to, or
will be entitled to receive the amount of that variation from, the Recipient.
(b)
Any payment, credit or refund under this clause is deemed to be a payment,
credit or refund of the GST Amount payable under clause 17.2.
(c)
If an adjustment event occurs in relation to a supply, the Supplier must issue an
adjustment note to the Recipient in relation to that supply within 14 days after
becoming aware of the adjustment.
Tax invoice
A party need not make a payment for a taxable supply made under or in connection
with the Project Agreement until it receives a tax invoice for the supply to which the
payment relates.
18.
Termination of Project Agreement
18.1
Termination for default
(a)
(b)
Without limiting any other rights or remedies the Department may have against
the Delivery Partner arising out of or in connection with this Project Agreement,
the Department may terminate the Project Agreement effective immediately by
giving notice to the Delivery Partner if:
(i)
the Delivery Partner breaches a material provision of the Project
Agreement where that breach is not capable of remedy;
(ii)
the Delivery Partner breaches any provision of the Project Agreement
and fails to remedy the breach within 14 days after receiving notice
requiring it to do so;
(iii)
in the opinion of the Department, a Conflict of Interest exists which
would prevent the Delivery Partner from performing its obligations under
the Project Agreement; or
(iv)
an event specified in clause 6.2(c) of the Deed happens to the Delivery
Partner.
Without limitation, for the purposes of clause 18.11(a)(i), each of the following
constitutes a breach of a material provision:
(i)
a breach of warranty under clause 21.2 (Delivery Partner warranties);
(ii)
a failure to comply with clause 22 (Personnel);
(iii)
a failure to comply with clause 25.1 (Intellectual Property Rights);
(iv)
a failure to comply with clause 28 (Insurance);
(v)
a failure to comply with clause 29 (Work health and safety);
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(vi)
a failure to comply with clause 31 (Confidentiality and privacy);
(vii) a failure to comply with clause 32 (Protection of Personal Information);
(viii) a failure to comply with clause 33 (Access to documents);
18.2
(ix)
a failure to notify the Department of a Conflict of Interest under
clause 34 (Conflict of Interest);
(x)
a failure to comply with clause 35 (Security); or
(xi)
a failure to comply with clause 38 (Workplace Gender Equality).
After termination
On termination of the Project Agreement the Delivery Partner must:
18.3
(a)
cease delivering the Project Services in relation to the Project;
(b)
deal with Deed Material in accordance with clause 25.12; and
(c)
deal with Department Material and the Department’s Confidential Information
as reasonably directed by the Department.
Termination does not affect accrued rights
Termination of this Project Agreement does not affect any accrued rights or
remedies of a party.
18.4
Termination does not affect Deed or other Project Agreements
Termination of this Project Agreement does not affect the continuance of the Deed
or any other Project Agreement formed under the Deed.
19.
Survival (Project Agreement)
19.1
Survival of Project Agreement provisions
The following clauses survive the expiry or earlier termination of this Project
Agreement:
(a)
clause 10.3 (Inspection of Works and design);
(b)
clause 10.6 (Defects after completion);
(c)
clause 12.1 (Permission from the owner of the Property);
(d)
clause 13.2 (Maintaining records of compliance);
(e)
clause 13.5(b) and (c) (Inspection and producing documents about
compliance);
(f)
clause 16.5 (Incorrect invoices, under/over payment);
(g)
clause 16.7 (Taxes);
(h)
clause 17 (GST);
(i)
clause 18.2 (After termination);
(j)
clause 18.3 (Termination does not affect accrued rights); and
(k)
this clause 19.1 (Survival of Project Agreement provisions).
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Part 3 – Provisions applicable to Deed and Project
Agreements
20.
General obligations of Delivery Partner
20.1
Conduct of the Delivery Partner
The Delivery Partner must, at all times:
20.2
(a)
act reasonably in performing its obligations and exercising its rights under the
Deed and any Project Agreement; and
(b)
diligently perform its obligations under the Deed and any Project Agreement.
Co-operation with Personnel and contractors
The Delivery Partner must in the performance of the Services:
(a)
fully co-operate with the Department’s Personnel and other contractors; and
(b)
use its best efforts to coordinate its activities so as to support and facilitate, in
the Department’s best interests, the timely and efficient completion of all work
and other activities in relation to the Services to be performed for the
Department by any person.
21.
Provision of Services
21.1
Service obligations
The Delivery Partner must supply the Services:
(a)
to the reasonable satisfaction of the Department;
(b)
with due skill and care and to the best of the Delivery Partner’s knowledge and
expertise;
(c)
to a high standard and in accordance with the professional standards of
conduct applying to the relevant industry;
(d)
in accordance with relevant Australian industry standards, best practice and
guidelines or where none apply, relevant international industry standards, best
practice and guidelines;
(e)
using the Specified Personnel (if any);
(f)
in accordance with all applicable Laws;
(g)
in accordance with Commonwealth or Department policies and specific
requirements notified to the Delivery Partner or set out in Item 9 of any relevant
Project Order;
(h)
so as to meet the Milestones and other Project requirements by the dates
specified for those Milestones or requirements, and where no Milestones or
particular Project requirements are specified, promptly and without delay;
(i)
in accordance with the same standards and obligations that are imposed on
Commonwealth Personnel under the Work Health and Safety Act 2011 (Cth);
and
(j)
so as to keep accurate and auditable records relating to the performance of the
Services; and
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(k)
21.2
otherwise in accordance with the provisions of this Deed and any relevant
Project Agreement, and especially the requirements of Schedule 2 of this
Deed.
Delivery Partner warranties
The Delivery Partner represents and warrants that:
(a)
it has the right to enter into this Deed and any Project Agreement formed under
the Deed;
(b)
it has all rights, title, licences, interests and property necessary to lawfully
perform the Services;
(c)
it and its subcontractors and Personnel, including its Specified Personnel, have
the necessary experience, skill, knowledge, expertise and competence to
perform the Services and (where appropriate) will hold such licences, permits
or registrations as are required under any State, Territory or Commonwealth
legislation to perform the Services, and are fit and proper people;
(d)
the Services will be fit for their intended purpose and will be complete and
accurate;
(e)
any materials that the Delivery Partner incorporates in the Services are free
from defects in design, performance and workmanship;
(f)
all work performed under this Deed and any Project Agreement will be carried
out and completed in a proper and workmanlike manner and in the most costeffective manner, and using materials suitable for the purpose;
(g)
all insurance policies required to be held by the Delivery Partner under this
Deed and any Project Agreement:
(i)
will remain in effect as provided for in this Deed and any relevant
Project Agreement; and
(ii)
will not be varied by the Delivery Partner without the Department’s
written consent.
22.
Personnel and subcontracting
22.1
Use of Specified Personnel
The Delivery Partner must:
(a)
Provide the Services required to facilitate the proponent making a Well
Informed Decision.
(b)
provide the Services or any part of the Services to which their particular
expertise relates, with the active involvement of, and using the expertise of, the
Specified Personnel; and
(c)
ensure that each of the Specified Personnel is aware of and complies with the
Delivery Partner’s obligations in providing the Services.
The following clause applies if the Delivery Partner is Mandating particular products
or services.
The Delivery Partner must ensure Proponents are free to choose the products and
services (including using a particular irrigation infrastructure, e.g. only use gravity or
low pressure systems - flood irrigation or pipes and risers or other systems, or only
use sub-surface drip or centre pivot) used in their projects except where:
(d)
the requirement to use particular products or services
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1) is made clear to the potential Proponent at the first meeting or
communication between the delivery partner and the potential Proponent;
2) is considered as part of the Well Informed Decision process undertaken by
the potential Proponent; and
3) is considered by the Potential Proponent prior to their entering into any
formal arrangement with the delivery partner.
(e)
The proponent has signed a declaration, at each of the above three stages,
stating they were aware of the requirements of that Delivery Partner to use
particular products and services in their project and any fees or charges for any
service that would be performed by any member of the consortium, or any
business associated with any member of the consortium, prior to, during or
after the project.
(f)
The Proponent is made aware in writing of their freedom to determine whether
they wish to proceed with the Delivery Partner at each of the above three
stages.
A delivery partner cannot require or mandate that an irrigator make a payment for
any purpose before, during or after the Project is undertaken where the requirement
for that payment has not been disclosed on the delivery partner’s website and at the
first meeting between the delivery partner and the irrigator
22.2
22.3
22.4
If the Specified Personnel are not available
(a)
Where one or more of the Specified Personnel is or will become unable or
unwilling to be involved in providing the Services, the Delivery Partner must
notify the Department immediately.
(b)
The Delivery Partner must:
(i)
if requested by the Department, provide a replacement person of
suitable ability and qualifications at no additional charge and at the
earliest opportunity; and
(ii)
obtain the Department’s written consent prior to appointing any such
replacement person. The Department’s consent will not be
unreasonably withheld.
Department may request replacement of Personnel
(a)
The Department may at any time request the Delivery Partner to remove any of
the Specified Personnel or any of the Delivery Partner’s Personnel from work in
delivering the Services.
(b)
On receipt of a request under clause 22.3(a), the Delivery Partner must
promptly arrange for the removal of such Personnel and their replacement in
accordance with the process outlined in clause 22.2.
Subcontracting
(a)
The Delivery Partner must:
(i)
not subcontract any aspect of the provision of:
(A)
the On-going Services, other than to those entities set out in Item
10 of the Deed Details; and
(B)
the Project Services, other than to the Proponent specified in Item
5 of the relevant Project Order (by way of a Works & Transfer
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Agreement) and any other entity specified in Item 10 of the
relevant Project Order,
without the prior written approval of the Department, which will not be
unreasonably withheld;
not, in any event, enter into a subcontract under this Deed and any
Project Agreement with a subcontractor named by the Workplace
Gender Equality Agency in a report to the Minister responsible for the
WGE Act as an employer currently not complying with the reporting
requirements of the WGE Act; and
(iii)
ensure that any subcontractor undertaking work relating to delivery of
the Services complies with all applicable Laws and:
(A)
clause 13 (Building Code 2013)
(B)
clause 25 (Intellectual Property Rights);
(C)
clause 27.2 (Release from liability);
(D)
clause 28 (Insurance)
(E)
clause 29 (Work health and safety);
(F)
clause 30 (Compliance with water market, charge and trading
rules);
(G)
clause 31 (Confidentiality and privacy);
(H)
clause 32 (Protection of Personal Information);
(I)
clause 33 (Access to documents);
(J)
clause 34 (Conflict of Interest);
(K)
clause 35 (Security);
(L)
clause 36 (Books and records);
(M)
clause 37 (Audit and access); and
(N)
clause 38 (Workplace Gender Equality).
(b)
The Delivery Partner is fully responsible for the performance of the Services
even if the Delivery Partner subcontracts any aspect of the provision of the
Services, including to a Proponent under a Works & Transfer Agreement.
(c)
The Delivery Partner:
(d)
22.5
(ii)
(i)
must, on request by the Department, provide the Department with the
names of any of the Delivery Partner’s subcontractors;
(ii)
agrees that the Department may disclose publicly the names of any of
the Delivery Partner’s subcontractors; and
(iii)
must ensure that any subcontractor agrees that the Department may
disclose the subcontractor’s name publicly.
If requested by the Department, the Delivery Partner must promptly provide to
the Department a copy of any contract relating to the Services or any Material
relating to the engagement of the subcontractor.
Proponents as subcontractors
Unless expressly stated otherwise, subcontractors include Proponents and
subcontracts include Works & Transfer Agreements for the purposes of this Deed
and any Project Agreement.
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23.
Monitoring progress
23.1
Progress meetings
(a)
(b)
23.2
The parties will meet at the times and in the manner set out in the Management
Schedule and any Project Order (or otherwise as agreed in writing between the
parties) to discuss any issues in relation to:
(i)
this Deed, including the delivery of the On-going Services; and
(ii)
the provision of the Project Services under any or all Project
Agreements.
The Delivery Partner must ensure that the Delivery Partner Representative and
the Department must ensure the Department Representative is reasonably
available to attend such meetings and answer any queries relating to the
matters referred to in clause 23.1(a) which may be raised by either party.
Reports
(a)
The Delivery Partner must provide the Department with Reports in accordance
with the Management Schedule and any Project Order.
(b)
Reports provided under clause 23.2(a) are part of the Deed Material and all
Intellectual Property Rights in them vest in the Department.
(c)
If the Department needs to use any Material provided by the Delivery Partner
that is owned by the Delivery Partner or a third party to receive the full benefit
of the Reports, the Delivery Partner grants to, or must obtain for, the
Department a perpetual, irrevocable, world-wide, royalty free, non-exclusive
licence (including the right to sublicense) to use, reproduce, adapt, modify and
communicate the Material.
(d)
The licence granted to the Department under clause 23.2(c) does not include a
right to exploit the Material for the Department’s commercial purposes.
(e)
Reports also need to include details of monitoring and evaluation that the
Delivery Partner has carried out in accordance with the Key Performance
Indicators.
24.
Performance assessment
24.1
Assessment of Services
Without limiting any other obligation of the Delivery Partner, each element of the
Services is subject to assessment by the Department against the relevant
Performance Criteria.
24.2
Notice of non-compliant Services
If the Department considers that all or part of the Services does not meet the
Performance Criteria, the Department may provide the Delivery Partner with notice
of that fact and include reasons for the Services not meeting the Performance
Criteria.
24.3
Rectification of non-compliant Services
If the Department notifies the Delivery Partner that all or part of the Services do not
meet the Performance Criteria, the Delivery Partner must:
(a)
within five Business Days after the date of receipt of the notice or such other
time as agreed between the parties in writing:
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(b)
24.4
(i)
take all necessary steps to ensure that the Services are promptly
corrected;
(ii)
give notice to the Department when the Services have been corrected;
and
following compliance with clause 24.3(a), allow the Department to repeat the
assessment of all or part of the Services against the Performance Criteria until
it is satisfied that the Performance Criteria are met.
Right to terminate
If all or any part of the Services do not meet the Performance Criteria on two or
more occasions, the Department may terminate this Deed and any relevant Project
Agreement under clauses 6.2 and 18.1 (respectively) by giving the Delivery Partner
notice in accordance with those clauses.
24.5
Other Rights
Clauses 24.2, 24.3 and 24.4 do not limit in any way any other right, remedy or
recourse of the Department.
25.
Intellectual Property Rights
Option 3 – Any purpose (including a commercial purpose)
The Department owns IPR in the Deed Material and confers a licence on the
Delivery Partner, which enables them (subject to direction) to use, reproduce,
adapt, modify and communicate that material for any purpose including
commercial purposes.
25.1
25.2
Pre-existing Material of the Delivery Partner
(a)
This clause 25 does not affect the ownership of the Intellectual Property Rights
in any Pre-existing Material of the Delivery Partner.
(b)
The Delivery Partner grants to the Department, a perpetual, irrevocable, worldwide, royalty free, non-exclusive licence (including the right to novate or assign
the licence, and to sublicense) to use, reproduce, adapt, modify and
communicate the Pre-existing Material of the Delivery Partner for the
Department’s purposes.
Third Party Material
(a)
The Delivery Partner must provide Third Party Material necessary or
appropriate to supply the Services.
(b)
Before using any Third Party Material the Delivery Partner must procure for the
Department perpetual licences enabling the Department to use the Third Party
Material to the extent necessary to obtain the full benefit of the Services,
including after the expiry or termination of this Deed and any relevant Project
Agreement.
(c)
If the Delivery Partner cannot obtain the licences as described in clause
25.2(b), the Delivery Partner must:
(i)
notify the Department of the best alternative licence terms for that Third
Party Material and not use that Third Party Material unless the
Department consents to those terms; and
(ii)
if the Department does not consent under clause 25.2(c)(i), notify the
Department of any comparable Third Party Material and comply with its
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obligations under this clause 25.2 in respect of comparable Third Party
Material.
25.3
Department ownership of Intellectual Property Rights in Deed Material
All Intellectual Property Rights in Deed Material vest in the Department on creation.
25.4
Provision and licence of Department Material to Delivery Partner
To the extent that the Delivery Partner needs to use any Department Material for
the purpose of performing its obligations under this Deed or a Project Agreement,
the Department will provide that Department Material to the Delivery Partner and
grants to the Delivery Partner, subject to any direction given by the Department, a
royalty-free, non-exclusive, non-transferable licence to use, reproduce, adapt,
modify and communicate the Department Material solely for the purpose of
providing the Services.
25.5
25.6
25.7
25.8
Model for licensing Intellectual Property Rights in Deed Material to the
Delivery Partner
(a)
The model for licensing Intellectual Property Rights in Deed Material to the
Delivery Partner is set out in Item 11 of the Deed Details.
(b)
If no licensing model is selected in Item 11 of the Deed Details, clause 25.6
applies and clauses 25.7, 25.8, and 25.9 in their entirety, do not apply to this
Deed and any Project Agreement.
(c)
Each party must, at its own cost, do all things and execute all documents
necessary or convenient to give effect to the licensing model.
Option 1 – Licence to use Deed Material only for providing the Services
(a)
Subject to clause 25.5(b), this clause applies if Option 1 is selected in Item 11
of the Deed Details.
(b)
The Department grants to the Delivery Partner, subject to any direction given
by the Department, a royalty-free, non-exclusive, non-transferable licence to
use, reproduce, adapt, modify and communicate Deed Material solely for the
purpose of providing the Services.
Option 2 – Licence to use Deed Material for any non-commercial
purpose
(a)
Subject to clause 25.5(b), this clause applies if Option 2 is selected in Item 11
of the Deed Details.
(b)
The Department grants to the Delivery Partner, subject to any direction given
by the Department, a royalty-free, non-exclusive, non-transferable licence to
use, reproduce, adapt, Modify and communicate Deed Material for any noncommercial purpose.
Option 3 – Licence to use Deed Material for any purpose (including
commercialisation)
(a)
Subject to clause 25.5(b), this clause applies if Option 3 is selected in Item 11
of the Deed Details.
(b)
The Department grants to the Delivery Partner, subject to any direction given
by the Department, a royalty-free, non-exclusive, non-transferable licence to
use, reproduce, adapt, Modify, exploit and communicate Deed Material for any
purpose, including the Delivery Partner’s commercial purposes.
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25.9
25.10
Option 4 – Licence to use Deed Material in accordance with a Creative
Commons Licence
(a)
Subject to clause 25.5(b), this clause applies if Option 4 is selected in Item 11
of the Deed Details.
(b)
The Department makes the Deed Material available under a Creative
Commons Licence and the Delivery Partner must use the Deed Material in
accordance with that Creative Commons Licence.
(c)
Any reproduction of Deed Material by the Delivery Partner must attribute the
Department and affix the Creative Commons Licence symbol (i.e. CC-BY 3.0).
Warranty
The Delivery Partner warrants that:
25.11
(a)
the Warranted Materials and the Department’s use of the Warranted Materials
will not infringe the Intellectual Property Rights of any person;
(b)
it has the necessary rights to vest the Intellectual Property Rights and grant the
licences as provided for in this clause 25; and
(c)
if specified in Item 11 of the Deed Details, the licences conferred under clauses
25.1(b) and 25.2(b) above, are sufficient to allow the Department to licence
Deed Material under a Creative Commons Licence, should it elect, at its
absolute discretion, to do so.
Remedy for breach of warranty
If someone claims, or the Department reasonably believes that someone is likely to
claim, that all or part of the Warranted Materials infringe their Intellectual Property
Rights, the Delivery Partner must, in addition to the indemnity under clause 27 and
to any other rights that the Department may have against it, promptly, at the
Delivery Partner’s expense:
25.12
(a)
use its best efforts to secure the rights for the Department to continue to use
the affected Warranted Materials free of any claim or liability for infringement;
or
(b)
replace or modify the affected Warranted Materials so that the Warranted
Materials or the use of them does not infringe the Intellectual Property Rights of
any other person without any degradation of the performance or quality of the
affected Warranted Materials.
Delivery of Deed Material
On the expiry or termination of this Deed and any Project Agreement or on such
earlier date as may be specified by the Department, the Delivery Partner must
deliver to the Department Representative a copy of all Deed Material in a format
reasonably acceptable to the Department.
26.
Moral Rights
26.1
Obtaining consents
To the extent permitted by applicable Laws and for the benefit of the Department,
the Delivery Partner must:
(a)
give, where the Delivery Partner is an individual, in a form acceptable to the
Department;
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(b)
use its best endeavours to ensure that each of the Personnel used by the
Delivery Partner in the production or creation of Deed Material gives, in a form
acceptable to the Department; and
(c)
use its best endeavours to ensure that any holder of Moral Rights in Third Party
Material included in Deed Material gives, in a form acceptable to the
Department,
genuine consent in writing to the use of Deed Material for the Specified Acts, even if
such use would otherwise be an infringement of its or their Moral Rights.
27.
Indemnity and release
27.1
Indemnity
The Delivery Partner indemnifies the Department and continues to indemnify the
Department against, all:
(a)
Losses suffered or incurred by the Department, including as the result of any
claim made in relation to:
(i)
loss of or damage to third party property (including property of an
Eligible Irrigator or Proponent); or
(ii)
the injury, illness or death of a third party (including injury illness or
death of an Eligible Irrigator or Proponent);
(b)
loss of or damage to the Department’s property; or
(c)
Losses suffered or incurred by the Department in dealing with any claim
against the Department, including the cost of time spent, resources used, or
disbursements paid by the Department,
arising from:
27.2
(d)
any act or omission by the Delivery Partner (including any of its Personnel) in
connection with this Deed and any Project Agreement;
(e)
any breach by the Delivery Partner (including any of its Personnel) of its
obligations or warranties under this Deed and any Project Agreement;
(f)
any act or omission by a Proponent in connection with a Project or a Works &
Transfer Agreement;
(g)
any breach by a Proponent of its obligations or warranties under a Works &
Transfer Agreement;
(h)
any use or disclosure by the Delivery Partner (including its Personnel) of
Personal Information or Confidential Information (or both, as the case may be)
held or controlled in connection with this Deed and any Project Agreement; or
(i)
the use by the Department of Deed Material, including the Intellectual Property
and Moral Rights comprised in Deed Material.
Release
The Delivery Partner releases, and must ensure that its subcontractors release, the
Department from:
(a)
all claims, actions, demands and proceedings which it may have, or claim to
have, or but for this release might have had, against the Department arising out
of this Deed or in any way connected with the performance of this Deed and
any Project Agreement; and
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(b)
all liability of the Department arising out of this Deed and any Project
Agreement,
on and from the Commencement Date.
27.3
Proportional reduction of liability
The Delivery Partner’s liability to indemnify and release the Department under
clauses 27.1 and 27.2 will be reduced proportionately to the extent that any
negligent or unlawful act or omission, or wilful misconduct on the part of the
Department (including its officers and employees) contributed to the relevant Loss.
27.4
Department’s right to be indemnified is additional to other rights
The Department’s right to be indemnified under clause 27.1 is in addition to, and not
exclusive of, any other right, power, or remedy provided by Law or in equity, but the
Department is not entitled to be compensated in excess of the amount of the
relevant Loss.
28.
Insurance
28.1
Maintaining insurance relating to On-going Services
The Delivery Partner must take out and maintain, and ensure that its subcontractors
engaged in delivery of the On-going Services take out and maintain, for the period
specified in clause 28.3(a) or clause 28.3(b) (as the case may be):
(a)
workers’ compensation insurance required by Law;
(b)
public liability insurance; and
(c)
professional indemnity or errors and omissions insurance,
as specified in Item 12 of the Deed Details.
28.2
Maintaining insurance relating to Project Services
The Delivery Partner must:
(a)
take out and maintain, or ensure that Proponents take out and maintain,
insurance for the Works from commencement of construction in accordance
with clause 10.2 until the relevant Completion Date, and as specified in Item
14(a) of the relevant Project Order; and
(b)
take out and maintain, and ensure that Proponents and subcontractors
engaged in delivery of Project Services take out and maintain, for the period
specified in clause 28.3(a) or clause 28.3(b) (as the case may be):
(i)
workers’ compensation insurance required by Law;
(ii)
public liability insurance; and
(iii)
professional indemnity or errors and omissions insurance,
as specified in Items 14(b) to (d) (inclusive) of the relevant Project Order.
28.3
Period of insurance
(a)
If the Delivery Partner, Proponent or subcontractor (as the case may be) takes
out a ‘claims made’ policy, which requires all claims and any fact situation or
circumstance that might result in a claim to be notified within the period of
insurance, the policy (or a policy in like terms) must be maintained:
(i)
in the case of the Delivery Partner or a subcontractor engaged in
delivery of On-going Services:
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(ii)
(b)
28.4
(A)
during the Deed Period; and
(B)
for a period of seven years following expiry of the Deed Period;
and
in the case of the Delivery Partner, a Proponent or a subcontractor
engaged in delivery of Project Services for a particular Project:
(A)
during the relevant Project Agreement Period; and
(B)
for a period of seven years following expiry of the relevant Project
Agreement Period; and
If the Delivery Partner, Proponent or subcontractor (as the case may be) takes
out an ‘occurrence’ policy, which requires the circumstances to which a claim
relates to occur during the period of insurance whilst the notification of the
event to the insurer can occur at any time subsequently, the policy must be
maintained:
(i)
in the case of the Delivery Partner or a subcontractor engaged in
delivery of On-going Services, during the Deed Period; and
(ii)
in the case of the Delivery Partner, a Proponent or a subcontractor
engaged in delivery of Project Services for a particular Project, during
the relevant Project Agreement Period.
Copies of insurance
The Delivery Partner must, on request, promptly provide to the Department for
inspection any policies and certificates of currency for the insurances that the
Delivery Partner is required to maintain, or require its Proponents and other
subcontractors to maintain, under this clause 28.
29.
Work health and safety
29.1
Interpretation
In this clause 29:
29.2
(a)
corresponding WHS law has the meaning given in section 4 of the WHS Act;
(b)
Regulator means an authority referred to in a WHS Law as the relevant
authority for work health and safety complaints, queries or investigations;
(c)
WHS Act means the Work Health and Safety Act 2011 (Cth);
(d)
WHS Law means the WHS Act and any corresponding WHS law;
(e)
WHS entry permit holder has the meaning given in the WHS Act; and
(f)
WHS Regulations means the regulations made under the WHS Act.
Compliance with Laws and our policies
(a)
The Delivery Partner must, in the performance of the Services, 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 a WHS Law in respect of work health and safety.
(b)
The Delivery Partner must, in the performance of the Services, comply, and
use reasonable endeavours to ensure that its subcontractors comply, with any
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of the Commonwealth’s work, health and safety policies as notified, referred
to, or made available, by the Commonwealth to the Delivery Partner in writing.
29.3
Notifiable incidents and contraventions
(a)
(b)
If the Delivery Partner is required by a WHS Law to report to a Regulator an
incident arising out of the provision of the Services:
(i)
at the same time, or as soon as is possible in the circumstances, the
Delivery Partner must give notice of such incident, and a copy of any
written notice provided to a Regulator, to the Department; and
(ii)
the Delivery Partner 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 investigations into its cause, and any
recommendations or strategies for prevention in the future.
The Delivery Partner must inform the Department of the full details of:
(i)
any suspected contravention of a WHS Law relating to the provision of
the Services, within 24 hours of becoming aware of any such suspected
contravention;
(ii)
any cessation or direction to cease work relating to the provision of the
Services, due to unsafe work, immediately upon the Delivery Partner
being informed of any such cessation or direction;
(iii)
any workplace entry by a WHS entry permit holder, or an inspector, to
any place where the Services are being performed or undertaken, within
24 hours of becoming aware of any such workplace entry; and
(iv)
any proceedings against the Delivery Partner or its officers, or any
decision or request by the Regulator given to the Delivery Partner or its
Personnel, under a WHS Law, within 24 hours of becoming aware of
any such proceedings, decision or request.
30.
Compliance with water market, charge and trading
rules
30.1
Interpretation
In this clause 30:
(a)
irrigation infrastructure operator and irrigation right have the meaning
given to those terms in the Water Act;
(b)
water market rules means the Water Market Rules 2009 made under section
97 of the Water Act as varied or replaced from time to time;
(c)
termination fees rules means the Water Charge (Termination Fees) Rules
2009 made under section 92 the Water Act as varied or replaced from time to
time;
(d)
water infrastructure charge rules means the Water Charge (Infrastructure)
Rules 2010 made under Section 92 the Water Act as varied or replaced from
time to time;
(e)
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 or replaced from time to time; and
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(f)
30.2
30.3
water trading rules means Chapter 12 of the Basin Plan 2012 adopted by the
Minister under section 44 of the Water Act as varied or replaced from time to
time.
Compliance with water market, charge and trading rules
(a)
The Delivery Partner must comply, and ensure that its subcontractors comply,
with 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 to the extent that the rules apply to the Delivery
Partner or its subcontractors (as the case may be).
(b)
This clause 30.2(b) applies to a Delivery Partner 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 Delivery Partner. A Delivery Partner
to which this clause 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.
(c)
This clause 30.2(c) applies to a Delivery Partner 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 30.2(b) 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 Delivery Partner as though the Delivery Partner 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
Delivery Partner.
Provision of reports and documentation
The Delivery Partner must, if requested by the Department, provide to the
Department written reports and other documents or information relating to the
requirements in clauses 30.2(a) to 30.2(c) (inclusive) in the form and manner, and
at the times specified by the Department.
31.
Confidential Information
31.1
Confidential Information not to be disclosed
31.2
(a)
Subject to clause 31.2, a party must not, without the prior written consent of the
other party, disclose any Confidential Information of the other party to a third
party.
(b)
In giving written consent to the disclosure of Confidential Information, a party
may impose such conditions as it thinks fit, and the disclosing party must
comply with those conditions.
Exceptions to obligations
The obligations on the parties under this clause 31 will not be taken to have been
breached to the extent that Confidential Information is:
(a)
disclosed by a party to its Advisers or employees solely in order to comply with
obligations, or to exercise rights, under this Deed and any Project Agreement;
(b)
disclosed to a party’s internal management Personnel, solely to enable
effective management or auditing of this Deed and any Project Agreement
related activities;
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31.3
(c)
disclosed by the Department to the Minister responsible for the Programme;
(d)
disclosed by the Department, in response to a request by a House or a
Committee of the Parliament of the Commonwealth;
(e)
shared by the Department within the Department’s organisation, or with another
Commonwealth agency, where this serves the Commonwealth’s legitimate
interests;
(f)
authorised or required by Law, including under this Deed and any Project
Agreement, under a licence or otherwise, to be disclosed; or
(g)
in the public domain otherwise than due to a breach of this clause 31.
Obligations on disclosure
Where a party discloses Confidential Information to another person:
(a)
(b)
31.4
pursuant to clauses 31.2(a), (b) or (e), the disclosing party must:
(i)
notify the receiving person that the information is Confidential
Information; and
(ii)
not provide the information unless the receiving person agrees to keep
the information confidential; or
pursuant to clauses 31.2(c) and (d), the disclosing party must notify the
receiving party that the information is Confidential Information.
No reduction in privacy obligations
Nothing in this Deed and any Project Agreement derogates from any obligation
which either party may have under the Privacy Act as amended from time to time, in
relation to the protection of Personal Information or information that is protected by
the Census and Statistics Act 1905 (Cth), or any other Law requiring secrecy or
confidentiality in dealing with information.
31.5
Confidential provisions
Despite any other provision of this Deed and any Project Agreement, the
Department may disclose the provisions of this Deed and any Project Agreement.
32.
Protection of Personal Information
32.1
Application of the clause
This clause applies only where the Delivery Partner deals with Personal Information
when, and for the purpose of, providing the Services under this Deed and any
Project Agreement.
32.2
Obligations
The Delivery Partner must:
(a)
use or disclose Personal Information only for the purposes of this Deed and
any relevant Project Agreement;
(b)
not do any act or engage in any practice that would breach an Australian
Privacy Principle under the Privacy Act; and
(c)
immediately notify the Department if the Delivery Partner becomes aware of a
breach or possible breach of any of its obligations under this clause 32.
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32.3
Subcontracts
The Delivery Partner must ensure that any subcontract entered into for the purpose
of fulfilling its obligations under this Deed and any Project Agreement contains
provisions to ensure that the subcontractor has the same awareness and
obligations as the Delivery Partner has under this clause 32, including the
requirement in relation to subcontracts.
32.4
Indemnity
The Delivery Partner indemnifies the Department in respect of any Loss suffered or
incurred by the Department which arises directly or indirectly from a breach of any
of the obligations of the Delivery Partner under this clause 32, or a subcontractor
under the subcontract provisions referred to in clauses 22.4 and 32.3.
33.
Access to documents
33.1
Application of clause
This clause 32.1 only applies if specified in Item 13 of the Deed Details.
33.2
Provision of documents
(a)
Where the Department has received a request for access to a document
created by, or in the possession of, the Delivery Partner or any subcontractor
that relates to the performance of this Deed and any Project Agreement (and
not to the entry into this Deed and any Project Agreement), the Department
may at any time by written notice require the Delivery Partner to provide the
document to the Department and the Delivery Partner must, at no additional
cost to the Department, promptly comply with the notice.
(b)
The Delivery Partner must include in any subcontract relating to the
performance of this Deed and any Project Agreement, provisions that will
enable the Delivery Partner to comply with its obligations under this clause 33.
(c)
In this clause 33, document has the same meaning as it has in the Freedom of
Information Act 1982 (Cth).
34.
Conflict of Interest
34.1
Warranty
The Delivery Partner warrants that, to the best of its knowledge after making diligent
inquiry, at the date of signing this Deed and at the formation of each Project
Agreement, no Conflict of Interest exists or is likely to arise in the performance of its
obligations under this Deed and any Project Agreement.
34.2
Notification of a Conflict of Interest
If, during the performance of the Services a Conflict of Interest arises, or appears
likely to arise, the Delivery Partner must:
(a)
notify the Department immediately in writing;
(b)
make full disclosure of all relevant information relating to the Conflict of Interest
and setting out the steps the Delivery Partner proposes to take to resolve or
otherwise deal with the Conflict of Interest; and
(c)
take such steps as the Department requires to resolve or otherwise deal with
the Conflict of Interest.
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35.
Security
35.1
Compliance with Department requirements and access to security
classified information
(a)
(b)
35.2
35.3
The Delivery Partner must, and must ensure that its subcontractors and
Personnel comply with:
(i)
all relevant security and other requirements specified in the Protective
Security Policy Framework; and
(ii)
any other security procedures or requirements notified, in writing, by the
Department to the Delivery Partner. The Delivery Partner must comply
with such a security procedure or requirement, from the date specified
in the notice, or if none is specified, within five Business Days of receipt
of the notice.
Where the Delivery Partner and its Personnel (including Specified Personnel)
may have access to security classified information of the Department, the
Delivery Partner and its Personnel (including Specified Personnel) involved in
providing the Services must complete, to the Department’s satisfaction, the
Security Awareness Training Program, prior to accessing security classified
information.
Security clearance
(a)
The Department may, from time to time, notify the Delivery Partner of the level
of security or access clearance applicable to the Delivery Partner’s
subcontractors or Personnel, and the date from which, or the period during
which, that clearance will be effective and the Delivery Partner must comply
with and ensure its subcontractors and Personnel act in accordance with that
notice.
(b)
The Delivery Partner must prevent access to security classified information by
its Personnel (including Specified Personnel) and subcontractors who do not
hold security clearances, or whose security clearances are revoked, lapse or
are inadequate for the level of security classified information, or who no longer
require access to that information.
(c)
The Delivery Partner must report to the Department any unauthorised,
incidental or accidental contact with security classified information by its
Personnel (including Specified Personnel) and the Delivery Partner’s
subcontractors, where those Personnel or subcontractors do not hold security
clearances, or hold security clearances that have been revoked, lapsed, or are
inadequate for the level of security classified information, within five Business
Days of the contact with the security classified information occurring.
(d)
The Delivery Partner is responsible for all costs and expenses associated with
obtaining security clearances.
Storage of security classified information
(a)
This clause 35.3 applies where the Delivery Partner will handle or store security
classified information of the Department outside the Department’s premises
and / or systems.
(b)
The Delivery Partner must ensure that the premises and facilities used to
handle or store security classified information of the Department meet the
appropriate security level as determined by the Department.
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35.4
35.5
(c)
The Delivery Partner must have the appropriate systems able to meet
designated information security standards for the electronic processing,
storage, transmission and disposal of official information.
(d)
The Delivery Partner bears all the costs and expenses associated with
ensuring that the storage of security classified information meets the
appropriate security level as determined by the Department.
Security Incidents
(a)
The Delivery Partner must report to the Department any actual or suspected
Security Incident within five Business Days of the actual or suspected Security
Incident.
(b)
The Delivery Partner must report any incidents or breaches of information and /
or communications technology security, not involving Department Material to
CERT Australia within five Business Days of the incident or breach.
Highest level of security classified information
The Delivery Partner may have access to security classified information up to the
level specified in Item 14 of the Deed Details.
35.6
Essential protective security requirements
The Delivery Partner must comply with the essential protective security
requirements specified in Item 15 of the Deed Details.
35.7
Removal of Department Data
The Delivery Partner must not, and must ensure that its subcontractors and
Personnel do not:
(a)
remove Department Data or allow Department Data to be removed from the
Department’s premises; or
(b)
take Department Data or allow Department Data to be taken outside of
Australia,
without the Department’s prior written consent.
36.
Books and records
36.1
Delivery Partner to keep books and records
The Delivery Partner must:
36.2
(a)
keep and require its subcontractors to keep adequate books and records in
accordance with Australian Accounting Standards, in sufficient detail to enable
the amounts payable by the Department under this Deed and any Project
Agreement to be determined; and
(b)
retain, and require its subcontractors to retain, all books and records relating to:
(i)
delivery of the On-going Services, for a period of seven years after the
expiry or termination of this Deed; and
(ii)
delivery of any Project Services, for a period of seven years after the
expiry or termination of the Project Agreement under which the Project
Services were required to be delivered.
Costs
The Delivery Partner must bear its own costs of complying with this clause 36.
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37.
Audit and access
37.1
Right to conduct audits
The Department or a representative may conduct audits relevant to the
performance of the Delivery Partner’s obligations under this Deed and any Project
Agreement. Audits may be conducted of:
37.2
(a)
the Delivery Partner’s operational practices and procedures as they relate to
this Deed and any Project Agreement, including security procedures;
(b)
the accuracy of the Delivery Partner’s invoices and reports in relation to the
provision of the Services under this Deed and any Project Agreement;
(c)
the Delivery Partner’s compliance with its confidentiality, privacy and security
obligations under this Deed and any Project Agreement;
(d)
Material (including books and records) in the possession of the Delivery Partner
relevant to the Services or this Deed and any Project Agreement; and
(e)
any other matters determined by the Department to be relevant to the Services
or this Deed and any Project Agreement.
Access by the Department
(a)
(b)
37.3
The Department may, at reasonable times and on giving reasonable notice to
the Delivery Partner:
(i)
access the premises of the Delivery Partner to the extent relevant to the
performance of this Deed and any Project Agreement;
(ii)
require the provision by the Delivery Partner and its Personnel of
records and information in a data format and storage medium
accessible by the Department by use of the Department’s existing
computer hardware and software;
(iii)
inspect and Material, however stored, in the custody or under the
control of the Delivery Partner and its Personnel; and
(iv)
require assistance in respect of any inquiry into or concerning the
Services or this Deed and any Project Agreement. For these purposes
an inquiry includes any administrative or statutory review, audit or
inquiry (whether within or external to the Department, any request for
information directed to the Department, and any inquiry conducted by
the Commonwealth Parliament or any Parliamentary committee.
The Delivery Partner must provide access to its computer hardware and
software to the extent necessary for the Department to exercise its rights under
this clause 37, and provide the Department with any reasonable assistance
requested by the Department to use that hardware and software.
Conduct of audit and access
The Department must use reasonable endeavours to ensure that:
(a)
audits performed pursuant to clause 37.1; and
(b)
the exercise of the general rights granted by clause 37.2 by the Department,
do not unreasonably delay or disrupt (in any material respect) the Delivery Partner’s
performance of its obligations under this Deed and any Project Agreement or its
business.
37.4
Costs
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Unless otherwise agreed in writing, each party must bear its own costs of any
reviews and / or audits.
37.5
Auditor-General, Ombudsman and Commissioners
The rights of the Department under clauses 37.2(a)(i) to 37.2(a)(iii) apply equally to
the Auditor-General, the Ombudsman, the Information Commissioner, the Privacy
Commissioner and the Freedom of Information Commissioner, or his or her
delegate, for the purpose of performing the Auditor-General’s, Ombudsman’s,
Information Commissioner’s, Privacy Commissioner’s or Freedom of Information
Commissioner’s statutory functions or powers.
37.6
Delivery Partner to comply with Auditor-General’s, Ombudsman’s and
Commissioner’s requirements
The Delivery Partner must do all things necessary to comply with the AuditorGeneral’s, the Ombudsman’s, the Information Commissioner’s, the Privacy
Commissioner’s or the Freedom of Information Commissioner’s, or his or her
delegate’s requirements, notified under clause 37.2, provided such requirements
are legally enforceable and within the power of the Auditor-General, the
Ombudsman, the Information Commissioner, the Privacy Commissioner, or the
Freedom of Information Commissioner, or his or her respective delegate.
37.7
No reduction in responsibility
The requirement for, and participation in, audits does not in any way reduce the
Delivery Partner’s responsibility to perform its obligations in accordance with this
Deed and any Project Agreement.
37.8
Subcontractor requirements
The Delivery Partner must ensure that any subcontract entered into for the purpose
of this Deed and any Project Agreement contains an equivalent clause granting the
rights specified in this clause 37.
37.9
No restriction
(a)
Nothing in this Deed or any Project Agreement reduces, limits or restricts in any
way any function, power, right or entitlement of the Auditor-General, the
Ombudsman, the Information Commissioner, the Privacy Commissioner or the
Freedom of Information Commissioner, or his or her delegate.
(b)
The rights of the Department under this Deed are in addition to any other
power, right or entitlement of the Auditor-General, the Ombudsman, the
Information Commissioner, the Privacy Commissioner or the Freedom of
Information Commissioner, or his or her delegate.
38.
Workplace Gender Equality
38.1
Application of clause
This clause 38 applies only to the extent that the Delivery Partner is a ‘relevant
employer’ for the purposes of the WGE Act.
38.2
Compliance with WGE Act
(a)
The Delivery Partner must comply with its obligations, if any, under the WGE
Act.
(b)
If the Delivery Partner becomes non-compliant with the WGE Act during the
Deed Period or a Project Agreement Period, the Delivery Partner must notify
the Department Representative.
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(c)
If the Deed Period or any Project Agreement Period exceeds 18 months, the
Delivery Partner must provide a current letter of compliance within 18 months
from the Commencement Date and following this, annually, to the Department
Representative.
(d)
Compliance with the WGE Act does not relieve the Delivery Partner, from its
responsibility to comply with its other obligations under this Deed and any
Project Agreement.
39.
Unforeseen events
39.1
Occurrence of unforeseen event
Subject to clause 39.2, a party (Affected Party) is excused from performing its
obligations under this Deed and any Project Agreement to the extent it is prevented
by circumstances beyond its reasonable control (other than lack of funds for any
reason or any strike, lockout and labour disputes in respect of the Delivery Partner
only), including acts of God, natural disasters, acts of war, riots and strikes outside
the Affected Party’s organisation.
39.2
Notice of unforeseen event
When the circumstances described in clause 39.1 arise or are reasonably perceived
by the Affected Party as an imminent possibility, the Affected Party must give notice
of those circumstances to the other party as soon as possible, identifying the effect
they will have on its performance. An Affected Party must make all reasonable
efforts to minimise the effects of such circumstances on the performance of this
Deed and any Project Agreement.
39.3
Termination
If non-performance or diminished performance by the Affected Party due to the
circumstances under clause 39.1 continues for a period of more than 30
consecutive days the other party may terminate this Deed and any relevant Project
Agreement immediately by giving the Affected Party written notice.
39.4
Consequences of termination
If this Deed and any Project Agreement is terminated under clause 39.3:
(a)
each party will bear its own costs and neither party will incur further liability to
the other; and
(b)
where the Delivery Partner is the Affected Party under a Project Agreement, it
will be entitled to payment for Project Services rendered in accordance with the
relevant Project Agreement prior to the date of intervention of the
circumstances described in clause 39.1.
40.
Dispute resolution
40.1
No arbitration or court proceedings
If a dispute arises in relation to the conduct of this Deed and any Project Agreement
(Dispute), a party must comply with this clause 40 before starting arbitration or
court proceedings (except proceedings for urgent interlocutory relief). After a party
has sought or obtained any urgent interlocutory relief, that party must then follow
this clause 40.
40.2
Notification
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A party claiming a Dispute has arisen must give the other parties to the Dispute
notice setting out details of the Dispute.
40.3
Parties to resolve Dispute
During the 10 Business Days after a notice is given under clause 40.2 (or longer
period if the parties to the Dispute agree in writing), each party to the Dispute must
use its reasonable efforts through a meeting of its Chief Executive Officer (or
nominee in the case of the Delivery Partner) and an officer of the Special Executive
Service (or nominee in the case of the Department) to resolve the Dispute. If the
parties cannot resolve the Dispute within that period, they must refer the Dispute for
resolution in accordance with clause 40.4 or 40.5 (as applicable) if one of them
requests.
40.4
Resolution of Disputes relating to Works
(a)
Following a request in accordance with clause 40.3 and where the Dispute
relates to the design, construction, completion or defects in Works, the dispute
must be determined by an expert in accordance with this clause 40.4.
(b)
An expert determination under this clause is to be conducted by:
(i)
the independent industry expert specified in Item 16 of the Deed Details;
or
(ii)
where the independent industry expert specified in the Deed Details is
unavailable, has a conflict of interest (as contemplated by clause
40.4(e)(i)) or declines to act, another independent industry expert
appointed by that person.
(c)
An expert determination conducted under this clause is not an arbitration and
the expert is not an arbitrator. The expert may reach a decision from his or her
own knowledge and expertise.
(d)
The expert will:
(e)
(i)
act as an expert and not as an arbitrator;
(ii)
proceed in any manner he or she thinks fit;
(iii)
conduct any investigation which he or she considers necessary to
resolve the Dispute;
(iv)
examine such documents, and interview such persons, as he or she
may require; and
(v)
make such directions for the conduct of the determination as he or she
considers necessary.
The expert must:
(i)
disclose to the parties any interest he or she has in the outcome of the
determination; and
(ii)
not communicate with one party to the determination without the
knowledge of the other.
(f)
Unless otherwise agreed between the parties, the expert must notify the parties
of his or her decision upon an expert determination conducted under this
clause within 20 Business Days from the acceptance by the expert of his or her
appointment.
(g)
The determination of the expert:
(i)
must be in writing;
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40.5
40.6
(ii)
must provide reasons for the determination; and
(iii)
in the absence of fraud, conflict of interest (as contemplated by clause
40.4(e)(i)) or a material mistake of fact, will be final and binding on the
parties and must be given effect to by the parties.
Resolution of Disputes by mediation
(a)
Following a request in accordance with clause 40.3 and where clause 40.4
does not apply or has failed to resolve the Dispute due to the circumstances
referred to in clause 40.4(g)(iii), the parties will attempt to resolve the Dispute
by mediation.
(b)
If the parties to the Dispute cannot agree on a mediator within seven days after
a request under clause 40.3, the chairperson of LEADR or the chairperson’s
nominee will appoint a mediator.
(c)
The role of a mediator is to assist in negotiating a resolution of the Dispute. A
mediator may not make a binding decision on a party to the Dispute except if
the party agrees in writing. Unless agreed by the mediator and parties, the
mediation must be held within 20 Business Days of the request for mediation in
clause 40.3. The parties must attend the mediation and act in good faith to
genuinely attempt to resolve the Dispute.
Confidentiality
Any information or documents disclosed by a party under this clause 40:
40.7
(a)
must be kept confidential; and
(b)
may only be used to attempt to resolve the Dispute.
Costs
Each party to a Dispute must pay its own costs of complying with this clause 40.
The parties to the Dispute must equally pay the costs of any mediator or expert.
40.8
Termination of process
A party to a Dispute may terminate the dispute resolution process by giving notice
to each other party after it has complied with clauses 40.1 to 40.5. Clauses 40.6
and 40.7 survive termination of the dispute resolution process.
40.9
Breach of this clause
If a party to a Dispute breaches clauses 40.1 to 40.8, the other party does not have
to comply with those clauses in relation to the Dispute.
40.10
Obligations continue
(a)
Despite the existence of a Dispute, both parties must continue to perform their
respective obligations under this Deed and any Project Agreement, unless a
direction is issued in accordance with clause 40.10(b).
(b)
If directed and notified in writing by the Department to do so, the Delivery
Partner must cease performing the obligations of the Delivery Partner under
this Deed and any Project Agreement which are specified in the Department’s
notice until the Department issues a further written notice to the Delivery
Partner directing it to resume performance of those obligations.
41.
Notices and other communications
41.1
Service of notices
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(a)
(b)
41.2
A party giving notice or notifying under this Deed and any Project Agreement
must do so in English and in writing:
(i)
as directed to the other party’s contact person at the other party’s
address, as varied by any notice; and
(ii)
hand delivered or sent by prepaid post, facsimile or Electronic
Communication to that address.
The parties’ addresses are specified in Item 17 of the Deed Details or as varied
by any notice given by the recipient to the sender.
Effective on receipt
A notice given in accordance with clause 41.1 takes effect when it is taken to be
received (or at a later time specified in the notice), and is taken to be received:
(a)
if hand delivered, on delivery;
(b)
if sent by prepaid post, on the second Business Day after the date of posting
(or on the seventh Business Day after the date of posting if posted to or from a
place outside Australia);
(c)
if sent by facsimile, when the sender’s facsimile system generates a message
confirming successful transmission of the entire notice unless, within eight
Business Hours after the transmission, the recipient informs the sender that it
has not received the entire notice; or
(d)
if sent by Electronic Communication, at the time that would be the time of
receipt under the Electronic Transactions Act 1999 (Cth),
but if the delivery, receipt or transmission is not on a Business Day or is outside
Business Hours on a Business Day, the notice is taken to be received at 9.00am on
the next Business Day.
42.
Survival (Deed and any Project Agreement)
42.1
Survival of Deed and any Project Agreement provisions
The following clauses survive the expiry or earlier termination of this Deed and any
Project Agreement:
(a)
in the case of the Deed only, clause 6.3 (After termination);
(b)
in the case of the Deed only, clause 6.4 (Termination does not affect);
(c)
clause 21.2(g) (Delivery Partner warranties (insurance));
(d)
clause 22.4 (Subcontracting);
(e)
clause 23.2 (Reports);
(f)
clause 25 (Intellectual Property Rights);
(g)
clause 26 (Moral Rights);
(h)
clause 27 (Indemnity and release);
(i)
clause 28 (Insurance).
(j)
clause 29 (Work health and safety);
(k)
clause 30 (Compliance with water market, charge and trading rules);
(l)
clause 31 (Confidential information);
(m)
clause 32 (Protection of Personal Information);
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(n)
clause 33 (Access to documents)
(o)
clause 35 (Security);
(p)
clause 36 (Books and records);
(q)
clause 37 (Audit and access);
(r)
clause 40 (Dispute resolution);
(s)
clause 41 (Notices and other communications);
(t)
this clause 42.1 (Survival of Deed and Project Agreement provisions);
(u)
clause 43.7 (No merger); and
(v)
clause 43.14 (Disclosure of information).
43.
Miscellaneous
43.1
Ownership of Deed
All copyright and other Intellectual Property Rights contained in this Deed and any
Project Agreement remain the property of the Department.
43.2
Variation
This Deed and any Project Agreement may be varied only in writing signed by both
parties.
43.3
Approvals and consents
Except where this Deed and any relevant Project Agreement expressly state
otherwise, a party may, in its discretion, give conditionally or unconditionally or
withhold any approval or consent under this Deed or the relevant Project
Agreement.
43.4
Assignment and novation
A party may only assign its rights or novate its rights and obligations under this
Deed and any Project Agreement with the prior written consent of the other party.
43.5
Costs
Each party must pay its own costs of negotiating, preparing and executing this
Deed and any Project Agreement.
43.6
Counterparts
This Deed may be executed in counterparts. All executed counterparts together
constitute one validly executed deed.
43.7
No merger
The rights and obligations of the parties under this Deed and any Project
Agreement do not merge on completion of any transaction contemplated by this
Deed or the relevant Project Agreement.
43.8
Entire agreement
This Deed and each Project Agreement constitute the entire agreement between
the parties in connection with their subject matter and supersede all previous
agreements or understandings between the parties in connection with their subject
matter.
43.9
Further action
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Each party must do, at its own expense, everything reasonably necessary
(including executing documents) to give full effect to this Deed and any Project
Agreement, and any transaction contemplated by them.
43.10
Severability
A term or part of a term of this Deed and any Project Agreement that is illegal or
unenforceable may be severed from this Deed or the relevant Project Agreement
and the remaining terms or parts of the terms of this Deed continue in force.
43.11
Waiver
Waiver of any provision of or right under this Deed and any Project Agreement:
43.12
43.13
43.14
(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 any written waiver.
Relationship
(a)
The parties must not represent themselves, and must ensure that their officers,
employees, agents and subcontractors do not represent themselves, as being
an officer, employee, partner or agent of the other party, or as otherwise able to
bind or represent the other party.
(b)
This Deed and any Project Agreement do not create a relationship of
employment, agency or partnership between the parties.
Announcements
(a)
The Delivery Partner must, before making a public announcement in
connection with this Deed and any Project Agreement, or any transaction
contemplated by them, obtain the Department’s written agreement to the
announcement, except if required by Law or a regulatory body (including a
relevant stock exchange).
(b)
If the Delivery Partner is required by Law or a regulatory body to make a public
announcement in connection with this Deed and any Project Agreement, or any
transaction contemplated by them, the Delivery Partner must, to the extent
practicable, first consult with and take into account the reasonable
requirements of the Department.
Disclosure of information
Despite any other provision of this Deed and any relevant Project Agreement, the
Department may disclose information about this Deed or the relevant Project
Agreement, including Personal Information, required to be reported by the
Department.
43.15
Governing law and jurisdiction
This Deed and any Project Agreement are governed by the law of the Australian
Capital Territory and each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of the Australian Capital Territory.
44.
Definitions and interpretation
44.1
Definitions
In this Deed and any Project Agreement, except where the contrary intention is
expressed, the following definitions are used:
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ABN
has the same meaning as it has in section 41 of A New Tax
System (Australian Business Number) Act 1999 (Cth).
Administrative
costs
The Delivery Partner’s fees for managing and undertaking the
project; not to exceed eight per cent of the project fees and
specified in Schedule 4 of the Deed.
Advisers
(a)
the financial or legal advisers of a party; and
(b)
the respective officers and employees of those
financial or legal advisers.
Agreed Terms
clauses 1 to 44 of this Deed which set out terms and
conditions agreed by the parties.
Approvals
any consent, authorisation, registration, filing, agreement,
notification, certificate, permission, licence, approval, permit,
authority or exemption issued by, from or with any Proper
Authority.
Auditor-General
the office established under the Auditor-General Act 1997
(Cth) and includes any other person that may, from time to
time, perform the functions of that office.
Australian
Accounting
Standards
the standards of that name maintained by the Australian
Accounting Standards (established under subsection 226(1)
of the Australian Securities and Investments Commission Act
1989 (Cth) and continued in existence by section 261 of the
Australian Securities and Investments Commission Act 2001
(Cth)) or other accounting standards which are generally
accepted and consistently applied in Australia.
Business Day
in relation to the doing of any action in a place, any day other
than a Saturday, Sunday or public holiday in that place.
Business Hours
from 9.00am to 5.00pm on a Business Day.
CERT Australia
Australia’s National Computer Emergency Response Team
located at the Attorney General’s Department, 3-5 National
Circuit, Barton, ACT 2600.
Certified Irrigation
Professional
A professional irrigation specialist holding a Diploma of
Irrigation Management (AHC51610), or higher qualification to
‘sign off’ on the technical feasibility of a project.
Commencement
Date
the date on which this Deed commences, as specified in
Item 5 of the Deed Details.
Commonwealth
the Commonwealth of Australia.
Completion Date
for each Project, means the date specified as the Completion
Date in Item 3 of a Project Order, being the date by which the
Delivery Partner must do everything it is required to do under
the relevant Project Agreement to complete the relevant
Project, including all elements of the Project Services.
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Confidential
Information
information that is by its nature confidential and:
(a)
is designated by a party as confidential;
(b)
is described in Item 15 of a Project Order as
confidential; or
(c)
a party knows or ought to know is confidential,
but does not include:
(d)
information which is or becomes public knowledge
otherwise than by breach of this Deed or a Project
Agreement or any other confidentiality obligation.
Conflict of Interest
any circumstance in which in which the Delivery Partner or
any of the Delivery Partner’s Personnel has an interest
(whether financial or non-financial) or an affiliation that is
affecting, will affect, or could be perceived to affect, the
Delivery Partner’s ability to provide the Services, or meet its
obligations under this Deed or any Project Agreement, fairly
and independently.
Corporations Act
the Corporations Act 2001 (Cth).
Creative
Commons Licence
the form of licence known as CC-BY 4.0 International
available at http://creativecommons.org.au/, as updated or
replaced from time to time.
Deed
this deed of standing offer between the Department and the
Delivery Partner, as varied from time to time in accordance
with clause 43.2, and includes its Schedules and any
attachments.
Deed Details
Schedule 1.
Deed Material
any Material created by the Delivery Partner on or following
the Commencement Date, for the purpose of or as a result of
performing its obligations under this Deed and any Project
Agreement, and includes any modifications that may be
required under clause 25.11(b).
Deed Period
the Initial Deed Period plus any extension of that period for an
Option Period under clause 2.2.
Delivery Partner
the party specified in Item 3 of the Deed Details and includes
its Personnel.
Delivery Partner
Representative
the person identified in Item 4 of the Deed Details.
Department
the Commonwealth Department of Agriculture and Water
Resources or any other Commonwealth department or
agency that administers this Deed from time to time.
Department Data
all data and information relating to the Department, and its
operations, facilities, customers, Personnel, assets and
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programs (including Personal Information) in whatever form
that information may exist and whether entered into, stored
in, generated by or processed through software or equipment
by or on behalf of the Department.
Department
Material
any Material provided to the Delivery Partner by the
Department, including the Material (if any) specified in
Item 13 of a Project Order.
Department
Representative
the person identified in Item 2 of the Deed Details.
Electronic
Communication
has the same meaning as in the Electronic Transactions Act
1999 (Cth).
Eligible Catchment
a Surface Water catchment meeting the requirements
specified in Item 1 of the Eligibility Requirements in Schedule
5.
Eligible Irrigator
a person that is the registered owner of an Eligible Water
Entitlement, as specified in Item 2 of the Eligibility
Requirements in Schedule 5.
Eligible Water
Entitlement
a Water Access Entitlement to Surface Water in an Eligible
Catchment that:
(a)
is not subject to an Encumbrance; and
(b)
otherwise meets the requirements specified in Item 3
of the Eligibility Requirements in Schedule 5, including
requirements for minimum water saving volume.
Eligibility
Requirements
Schedule 5.
Encumbrance
in relation to a Water Access Entitlement, means:
(a)
a mortgage, charge, encumbrance, pledge, lien or
other security over the entitlement;
(b)
a lease, licence, term transfer or transfer for a period
of any right, title or interest in respect of the
entitlement;
(c)
a caveat, garnishee order, writ of execution, right of
set-off, assignment of income or monetary claim
affecting the entitlement;
(d)
a preferential interest, title retention, or other estate,
interest, claim or arrangement affecting the
entitlement;
(e)
a contract of sale or option to purchase or acquire the
entitlement; or
(f)
an agreement to grant, create, allow or register any of
these,
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and includes the encumbrances listed in paragraphs (a) to (f)
(inclusive) whether or not they are registered, unregistered,
statutory, legal or equitable.
Fees
the fees payable to the Delivery Partner for each Project in
accordance with clause 16 and Item 7 of the relevant Project
Order.
Freedom of
Information
Commissioner
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.
General Interest
Charge Rate
the general interest charge rate determined under section
8AAD of the Taxation Administration Act 1953 (Cth) on the
day payment is due, expressed as a decimal rate per day.
GST Act
the A New Tax System (Goods and Services Tax) Act 1999
(Cth).
Information
Commissioner
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.
Initial Deed Period
the period of time for which this Deed is intended to continue,
as specified in Item 6 of the Deed Details.
Intellectual
Property Rights
all intellectual property rights, including the following rights:
(a)
copyright, patents, rights in circuit layouts, trademarks,
designs, trade secrets, know how, and any right to
have confidential information kept confidential;
(b)
any application or right to apply for registration of any
of the rights referred to in paragraph (a); and
(c)
all rights of a similar nature to any of the rights in
paragraphs (a) and (b) which may subsist in Australia
or elsewhere,
whether or not such rights are registered or capable of being
registered.
Item
an item in a Schedule to this Deed or a Project Order.
Key Performance
Indicators
As in Schedule 10.
Law
any applicable statute, regulation, by-law, ordinance or
subordinate legislation in force from time to time in Australia,
whether made by a State, Territory, the Commonwealth, or a
local government, and includes the common law and rules of
equity, as applicable from time to time.
Losses
liabilities, expenses, losses, damages and costs (including
but not limited to legal costs on a full indemnity basis,
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whether incurred by or awarded against a party).
Management
Schedule
Schedule 3.
Material
any software, firmware, documented methodology or process,
documentation or other material in whatever form, including
without limitation any reports, specifications, business rules or
requirements, user manuals, user guides, operations
manuals, training materials and instructions, and the subject
matter of any category of Intellectual Property Rights.
Milestone
any fixed date to be met by the Delivery Partner in performing
any of its obligations under a Project Agreement, as specified
in Attachment A of the relevant Project Order.
Minimum Water
Savings
The estimated minimum water savings that may feasibly be
returned by the Project.
Moral Rights
the right of integrity of authorship (that is, not to have a work
subjected to derogatory treatment), the right of attribution of
authorship of a work, and the right not to have authorship of a
work falsely attributed, as defined in the Copyright Act 1968
(Cth).
Ombudsman
the office established under the Ombudsman Act 1976 (Cth)
and includes any other person that may, from time to time,
perform the functions of that office.
On-going Services
the services to be provided by the Delivery Partner to the
Department under clause 3.1 which relate to the delivery of
the Programme, as specified in the On-going Services
Schedule.
On-going Services
Schedule
Schedule 2.
Performance
Criteria
(a)
in relation to delivery of the On-going Services, means
the requirements in clause 21; and
(b)
in relation to delivery of the Project Services, means
the requirements in clauses 10.1, 10.5 to 10.6
(inclusive), 13, 14 and 21, and any additional criteria
or requirements specified in Item 12 of the relevant
Project Order.
Personnel
in relation to a party, any natural person who is an employee,
officer, agent, or professional adviser of that party or, in the
case of the Delivery Partner, of a subcontractor.
Personal
Information
information or an opinion (including information or an opinion
forming part of a database), whether true or not and whether
recorded in a material form or not, about a natural person
whose identity is apparent, or can reasonably be ascertained,
from the information or opinion.
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Pre-existing
Material
any Material, other than Deed Material or Third Party
Material, which is made available by a party for the purpose
of this Deed or a Project Agreement, on or following the
Commencement Date, and includes:
(a)
error corrections or translations to that Material; and
(b)
modifications or derivatives of that Material where
such modification or derivative work cannot be used
without infringing the Intellectual Property Rights in the
underlying Material.
Pricing
Methodology
the basis upon which the Fees payable for each Project will
be calculated in accordance with Schedule 4.
Privacy Act
the Privacy Act 1988 (Cth).
Privacy
Commissioner
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.
Programme
has the meaning given to that term in Recital B.
Project
the irrigation infrastructure efficiency project the subject of a
Project Order, including:
(a)
identified Works to improve irrigation infrastructure and
promote efficient water use by Proponents in Eligible
Catchments; and
(b)
transfer of an agreed volume of Eligible Water
Entitlements from the Proponent to the
Commonwealth.
Project Agreement
a contract between the Commonwealth and the Delivery
Partner for delivery of Project Services in relation to a Project,
formed under clause 5.1.
Project Agreement
Period
the period of time for which a Project Agreement is intended
to continue, beginning on the Start Date and ending on the
Completion Date.
Project Order
an order for Project Services substantially in the form set out
at Schedule 7, issued by the Department to the Delivery
Partner in accordance with clause 4.3.
Project Services
comprises:
Proper Authority
(a)
the services to be provided by the Delivery Partner to
the Department under clause 8.1 in order to deliver a
Project, as specified in Item 8 of the relevant Project
Order; and
(b)
the Works.
includes any ministry, department, government, governmental
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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or semi-governmental authority, agency, instrumentality,
council, corporation or other legal entity with legislative
authority which has jurisdiction or authority over or in
connection with this Deed, a Project Agreement, any Works,
a Project or a Property.
Property
the property on which the Works are to be undertaken and
includes the land, and any buildings, fixtures and other
improvements on the land, but does not include items that
would be regarded as fittings or chattels at Law.
Proponent
an Eligible Irrigator specified in Item 5 of a Project Order.
Proposal
a Project proposal in the form and including the requirements
specified in Schedule 6, provided by the Delivery Partner to
the Department as part of the On-going Services.
Protective
Security Policy
Framework
the Australian Government Protective Security Policy
Framework as amended or replaced from time to time.
Reports
the reports that the Delivery Partner is required to produce
and provide to the Department in accordance with clause
23.2.
Schedule
a schedule to this Deed.
Security
Awareness
Training Program
any security training program implemented by the
Department from time to time.
Security Incident
any incident or breach of security that may impact:
(a)
the Delivery Partner’s ability to deliver the Services; or
(b)
the Department’s Material which is held by, or in
transit to and / or from, the Delivery Partner.
Services
the On-going Services and the Project Services.
Specified Acts
(a)
failing to attribute or falsely attributing the authorship
of any Deed Material, or any content in Deed Material
(including without limitation literary, dramatic, artistic
works and cinematograph films within the meaning of
the Copyright Act 1968 (Cth));
(b)
materially altering the style, format, colours, content or
layout of Deed Material and dealing in any way with
the altered Deed Material;
(c)
reproducing, communicating, adapting, publishing or
exhibiting any Deed Material; and
(d)
adding any additional content or information to Deed
Material.
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Specified
Personnel
the Delivery Partner’s Personnel specified in Item 9 of the
Deed Details.
Start Date
the date specified as the Start Date in Item 3 of a Project
Order.
Surface Water
has the meaning given to that term in section 4 of the Water
Act.
Third Party
Material
Material owned by a third party that is:
(a) included, embodied in or attached to Deed Material; or
(b) used as part of the performance of the Services.
Warranted
Materials
the Pre-existing Material and Third Party Material provided by
the Delivery Partner, and Deed Material.
Water Access
Entitlement
has the meaning given to that term in section 4 of the Water
Act.
Water Act
the Water Act 2007 (Cth).
Water Transfer
Deed
a deed substantially in the form specified in Schedule 9
between the Commonwealth and a Proponent for the transfer
to the Commonwealth of an Eligible Water Entitlement of the
type and in the volume specified in a Project Agreement.
Well-informed
decision
Able to make a judgement on the basis of possessing
relevant and reliable information from a variety of sources,
including independent sources, and making the judgement in
a structured manner that is: free from manipulation or undue
influence; addresses goals; based on access to the type and
amount of information needed to make the decision; and
includes an understanding of the impact of assumptions
being made in making the decision. The aim should be for the
decision to be the ‘right’ decision for the irrigator considering
all the circumstances in their life.
WGE Act
the Workplace Gender Equality Act 2012 (Cth).
Works
the building work to be undertaken by the Delivery Partner as
part of a Project to implement irrigation infrastructure water
efficiency upgrades, and includes design, construction and
related activities contemplated by Attachment B of the
relevant Project Order.
Works & Transfer
Agreement
an agreement between the Delivery Partner and a Proponent
for transfer of Eligible Water Entitlements to the
Commonwealth and completion of Works, which meets the
requirements specified in:
(a)
the relevant Project Order issued by the Department;
and
(b)
this Deed, including the Works & Transfer Agreement
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Schedule.
Works & Transfer
Agreement
Schedule
44.2
Schedule 8.
Interpretation
In this Deed and any Project Agreement, except where the contrary intention is
expressed:
(a)
the singular includes the plural and vice versa, and a gender includes other
genders;
(b)
another grammatical form of a defined word or expression has a corresponding
meaning;
(c)
in this Deed, a reference to a clause, paragraph, or annexure is to a clause or
paragraph of, or annexure to, this Deed, and a reference to this Deed includes
any Schedules and annexures;
(d)
in a Project Agreement, a reference to a clause, paragraph, or annexure is to a
clause or paragraph of, or annexure to, the relevant Project Agreement, and a
reference to the Project Agreement includes its schedules and annexures;
(e)
a reference to a document or instrument includes the document or instrument
as novated, altered, supplemented or replaced from time to time;
(f)
a reference to A$, $A, dollar or $ is to Australian currency;
(g)
a reference to time is to the time in the place where the obligation is to be
performed;
(h)
a reference to a party is to a party to this Deed or a Project Agreement (as the
case may be), and a reference to a party to a document includes the party's
executors, administrators, successors and permitted assignees and substitutes;
(i)
a reference to a person includes a natural person, partnership, body corporate,
association, governmental or local authority or agency or other entity;
(j)
if the Delivery Partner is a trustee, the Delivery Partner enters into this Deed
and any Project Agreement personally and in its capacity as trustee and:
(i)
any warranties given under this Deed and any Project Agreement are
given in both capacities; and
(ii)
warrants that it has the power to perform its obligations under this Deed
and any Project Agreement;
(k)
a reference to a statute, ordinance, code or other Law includes regulations and
other instruments under it and consolidations, amendments, re-enactments or
replacements of any of them;
(l)
a word or expression defined in the Corporations Act has the meaning given to
it in the Corporations Act;
(m)
the meaning of general words is not limited by specific examples introduced by
the terms ‘including’, ‘for example’, ‘such as’, or similar expressions;
(n)
any agreement, representation, warranty or indemnity by two or more parties
(including where two or more persons are included in the same defined term)
binds them jointly and severally;
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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44.3
(o)
any agreement, representation, warranty or indemnity in favour of two or more
parties (including where two or more persons are included in the same defined
term) is for the benefit of them jointly and severally;
(p)
a rule of construction does not apply to the disadvantage of a party because
the party was responsible for the preparation of this Deed, a Project Order or
any part of those documents;
(q)
if a day on or by which an obligation must be performed or an event must occur
is not a Business Day, the obligation must be performed or the event must
occur on or by the next Business Day; and
(r)
headings are for ease of reference only and do not affect interpretation.
Completion of Schedules
To the extent that the parties have not completed Items in a Schedule, unless
otherwise stated in the Schedule, this Deed or the relevant Project Agreement,
those Items will be taken to be 'not applicable' for the purpose of this Deed or the
Project Agreement (as the case may be).
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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Schedule 1 - Deed Details
Item
Description
Clause
Details
1.
Department
44.1
Commonwealth of Australia as represented by
the Department of Agriculture and Water
Resources
ABN 24 113 085 695
2.
Department
Representative
44.1
Name: [insert name]
Position: [insert position]
Phone: [insert phone number]
Fax: [insert facsimile number]
Email: [insert email]
3.
Delivery Partner
44.1
[Insert name of Delivery Partner]
[Insert ABN of Delivery Partner]
4.
Delivery Partner
Representative
44.1
Name: [insert name]
Position: [insert position]
Phone: [insert phone number]
Fax: [insert facsimile number]
Email: [insert email]
5.
Commencement
Date
2.1 and 44.1
The date this Deed is signed by the last party.
6.
Initial Deed Period
for on-going
Services
2.1 and 44.1
Two (2) years
7.
Option Period
2.2
One Option Period of two (2) years
8.
Option Notice Period
2.2
[Insert Option Notice Period in calendar
days or Business Days]
9.
Specified Personnel
2.1 and 22.1
[Insert names and positions of Specified
Personnel required to be involved in delivery
of all Services. Otherwise insert 'Not
applicable']
10.
Subcontractors (Ongoing Services)
22.4(a)(i)(A)
[Insert names and ABNs of any
subcontractors approved for engagement in
delivery of the On-going Services. Otherwise
insert 'Not applicable'.]
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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Item
Description
Clause
Details
11.
Intellectual Property
Rights – Licensing
of Deed Material to
Delivery Partner
25.1 and
44.1
 Option 3 (Licence to use Deed Material for
any purpose (including commercialisation))
applies
12.
Insurance
28
(a)
Workers’ compensation insurance as
required by Law;
(b)
Public liability insurance for an insured
amount of $10 million per occurrence and
not less than $20 million in aggregate; and
(c)
Either professional indemnity or errors and
omissions insurance for an insured
amount of $5 million per occurrence and
not less than $10 million in aggregate.
Note to drafter: The insurance amounts
inserted above are default amounts only.
You will need to undertake a risk assessment
and set the insurance amounts on the basis
of the risk assessment.
13.
Access to
documents
32.1
Clause 32.1 applies.
14.
Highest level of
security classified
information
35.5
[Insert the highest level of security classified
information that the Delivery Partner’s
Personnel, Specified Personnel or
subcontractors will require access to.]
15.
Essential protective
security
requirements
35.6
[Insert any specific protective security
requirements to be performed by the
Delivery Partner.]
16.
Expert for
determining
Disputes about
Works
40.4
Chair, Irrigation Australia Limited or Board
Member of IAL nominated by the Chair to fulfil
this role (TBC)
17.
Address for Notices
41
Department:
Name: [insert details]
Position: [insert details]
Department of the Environment
Postal address: GPO Box 787, Canberra, ACT,
2601
Physical address: John Gorton Building, King
Edward Terrace, Parkes, ACT, 2600
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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Item
Description
Clause
Details
Fax: [insert facsimile number]
Email: [insert email address]
Delivery Partner:
Name: [insert details]
Position: [insert details]
[Insert organisation name]
Postal address: [insert postal address]
Physical address: [insert physical address]
Fax: [insert facsimile number]
Email: [insert email address]
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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Schedule 2 – On-going Services
The Ongoing Services that are to be provided by the Delivery Partner are:
a) In line with the description in your response to the SoR - developing and maintaining a
web page to include details of the Delivery Partner’s services and role in the Programme,
all administration costs, management structure and governance, and any mandating that
will occur / requirements for particular suppliers to be used;
b) In line with the description in your response to the SoR - establishing and maintaining
governance structures commensurate with the scope of projects being managed,
including structures and strategies to deal with actual or potential conflicts of interest and
ensuring Eligible Irrigators are aware of the set governance standards, for the duration of
the Deed.
c) In line with the description in your response to the SoR - promoting the Programme
through avenues including but not limited to:
i)
providing up-to-date information on a website about the Programme that links to the
Department’s website, including information on Eligibility Requirements, potential
projects and case studies of completed projects (as appropriate), document
templates (such as for a Works and Transfer Agreement),
ii) attending industry events;
iii) creating and distributing promotional material;
iv) contacting Eligible Irrigators and seeking draft Project Proposals;
d) In line with the description in your response to the SoR - discussing the options available
under the Programme and the services that will be provided with Eligible Irrigators;
e) In line with the description in your response to the SoR - engaging with Eligible Irrigators
to identify potential Projects;
f)
In line with the description in your response to the SoR - working with Eligible Irrigators
to develop draft Project Proposals, including developing a process to enable an Eligible
Irrigator to reach a Well-Informed Decision on the type and scale of irrigation upgrade
they wish to undertake, determining potential suppliers, and assisting the Eligible
Irrigator to prepare a technically valid farm irrigation plan including through
i)
Having readily accessible staff that are well informed on irrigation methods and their
suitability to grow particular crops work with irrigators,
ii) Having readily accessible staff to discuss and assist an irrigator proponent with a
farm irrigation plan of a type suitable for the property and investment proposed
iii) Having information and resources or access to information and resources that is
readily accessible to irrigators to enable them to understand the benefits and costs of
different irrigation methods;
g) In line with the description in your response to the SoR - developing a transparent
process to consider the eligibility and suitability of draft Project Proposals and
communicating this information to Eligible Irrigators seeking funding for a Project
Proposal as needed;
h) In line with the description in your response to the SoR - assessing Project Proposals to
ensure that final Project Proposals meet Eligibility Requirements before submitting the
project to the Department, including by:
i)
Undertaking an independent technical assessment of the proposal to ensure;
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A) the project is suitable for the uses proposed by the irrigator and the soils and
topography of the irrigators farm
B) the project is suitable for the farm irrigation plan proposed by the Proponent
C) the water savings are feasible
D) the costs of the project are reasonable for the scale of the proposal and the
irrigation methods and equipment proposed
E) the proposed irrigation equipment is an appropriate type of equipment for the
uses and aspirations of the Proponent and are neither over or under done
F) the project proposal takes account of the running costs, including energy costs
and maintenance costs, of the proposal.
ii) ensuring there is information regarding the volume, ownership and other details of
the Eligible Water Entitlements to be transferred to the Commonwealth;
iii) taking all reasonable measures to ensure those Eligible Water Entitlements are
available to be transferred and unencumbered within six months after the Project
Order is issued;
iv) including the costing for each project;
v) collecting all relevant business/company details including name/s, address/es,
ABN/ACN, etc of irrigators; and
vi) Gaining an assessment of the Project Proposal from an independent industry expert
specified in the Deed to show the Project Proposal is technically feasible; and
i)
Submitting final Project Proposals to the Department using the template provided in
Schedule 6.
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Schedule 3 – Management Schedule
1.
Progress meetings (clause 23.1)
Meeting
Attendees
Frequency
Location
Quarterly meeting
Department
representatives and
Delivery Partner
representatives
At least quarterly,
with one meeting
replaced by the
Annual Progress
meeting
By telephone
Annual Progress
meeting
Department
representatives and
Delivery Partner
representatives
Annually
In person at a venue
nominated by the
Delivery Partner
2.
Reports (clause 23.2)
Note to drafter: List the reports to be provided under the Deed, i.e. in relation to Ongoing Services and Project Services under all Project Agreements. Reporting
requirements for particular Project Agreements can be specified in the Project Order.
Please ensure that this Item includes all reports you will need to complete annual
reporting on spending from the Water for the Environment Special Account in
accordance with section 86AI of the Water Act.
Report type and content
Frequency
Date
Biannual progress report on projects
Six monthly
On 1 March of each year
and 1 September of each
year, or the next business
day
Report on completion of a project
Once
On finalisation of each
individual project
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Schedule 4 – Pricing Methodology
1.
Fee Pricing Methodology (clause 16.1 and 44.1)
Fees are calculated for each Project based on the following:
a) The Fees for the Project equal 1.75 times the value of the Eligible Water
Entitlement(s) to be transferred to the Commonwealth as specified in the
Project Proposal;
b) The Eligible Water Entitlement(s) is to be 100 per cent of the minimum
estimated water savings from the Project;
c) The value of the Eligible Water Entitlement(s) will be set by the Department
every six months on 1 March and 1 September;
d) The Delivery Partner Administrative costs may not exceed eight per cent of
the cost of the Project Proposal and are specified below; and
e) The Delivery Partner administrative costs must be included in the final
Project Fees.
2.
Administrative costs (clause XX)
The Administrative costs of the Delivery Partner is X percent of the Project Fees.
3.
Payment Schedule
The Department will, within 30 days of receiving a correctly rendered invoice and
other requirements set out at 4. below, pay the required Fees to the Delivery
Partner in the following instalments;
4.
(a)
At the signing by both the Delivery Partner and the Proponent of the Works
and Transfer Agreement – One (1) times the market value of the
entitlement(s) to be transferred to the Commonwealth plus half (50%) of the
Administrative costs of the Delivery Partner;
(b)
Upon the settlement of the transfer of the entitlement(s) to the Commonwealth
– 0.75 times the market value of the entitlement(s) transferred to the
Commonwealth minus the Administrative costs of the Delivery Partner;
(c)
Upon receipt of each biannual progress report – six per cent (6%) of the
Administrative costs of the Delivery Partner; and
(d)
Upon receipt of a final report on a project – fourteen per cent (14%) of the
Administrative costs of the Delivery Partner plus any progress report
payments not paid earlier.
Invoicing requirements (clause 16.2)
Invoices must meet the requirements of a tax invoice as set out in the GST Act and
contain the following information:
(a)
reference numbers and identifying information for this Deed and the relevant
Project Order(s) (and consequently Project Agreement under which Project
Services were delivered);
(b)
details of the Project Services delivered and Milestones met, including
Material evidencing achievement of the relevant Milestone(s);
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(c)
the period covered by the invoice; and
(d)
any other information reasonably requested by the Department from time to
time.
Invoices must to be sent by email to:
efficiency.measures@agriculture.gov.au
with a copy sent by post to
[Insert position and name of the Department's representative]
Department of Agriculture and Water Resources
GPO Box 858
Canberra ACT 2601
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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Schedule 5 – Eligibility Requirements
1.
Eligible Catchments
The requirements for an Eligible Catchment under this Deed are:
2.
(a)
The catchment is a surface water SDL resource unit listed in Schedule 2 of
the Basin Plan 2012insert requirements setting out what an Eligible
Catchment is for the purposes of this Deed. For example, these Items
could include geographic limitations on an Eligible Catchment. Note, the
definition of this term in clause 44.1 currently states that an Eligible
Catchment is a Surface Water (as defined by the Water Act) catchment.];
and
(b)
The catchment is listed on the Department’s website as being eligible
between the dates listed on the Department’s website.
(c)
The Department has notified the Delivery Partner in writing of the eligible
catchments.[etc].
Eligible Irrigators
The requirements for an Eligible Irrigator under this Deed are:
3.
(a)
[insert requirements setting out what an Eligible Irrigator is for the
purposes of this Deed. For example, these could be limitations based on
participation or involvement with particular industries. Note, the
definition of this term in clause 44.1 currently states that an Eligible
Irrigator is the registered owner of an Eligible Water Entitlement.]; and
the registered owner of Eligible Water Entitlements;
(b)
that a technically feasible irrigation infrastructure upgrade will make water
savings while maintaining the production potential of the property identified in
the Project Proposal;
(c)
be able to discharge any encumbrances and remove any trading exemptions
that may be held over this entitlement/s and transfer the unencumbered
entitlement/s to the Commonwealth within six months of the Project Order
being issued
(d)
a willingness to provide access (including site visits and access to all relevant
financial statements) to projects during the construction of the project and up
to 24 months following project completion, and
(e)
be able to complete the project within 36 months of commencement.
Eligible Water Entitlements
The requirements for an Eligible Water Entitlement under this Deed are:
(a)
a water access right that is a water access entitlement [insert requirements
setting out what an Eligible Water Entitlement is for the purposes of this
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
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Deed. For example, minimum water saving volume. Note, the definition
of this term in clause 44.1 currently states that an Eligible Water
Entitlement is a Water Access Entitlement (as defined by the Water Act),
in an Eligible Catchment, that is not subject to an Encumbrance (which
is also defined in clause 44.1.)]; and
(b)
has been notified to the Delivery Partner as an eligible water entitlement by
the Department ;
(c)
exempt from trading restrictions at the time of transfer to the Commonwealth
(d)
free of any encumbrances at the time of transfer to the Commonwealth
(e)
the minimum water saving volume must be 10ML
(f)
Each water entitlement to be transferred must be for at least 10ML [etc].
Other eligibility requirements
a) .
b) Demonstrate they are technically feasible, including the water savings, and the
engineering solutions are appropriate to the needs of the irrigation system and the
project site.
c) Include details of the project costs and demonstrate that the total project cost,
including LVW’s fees (see section XXX below), do not exceed 1.75 times the
Department’s published estimated market value of the water entitlements to be
transferred to the Commonwealth.
d) Contain information regarding the volume, ownership and other details of the surface
water entitlement/s to be transferred.
e) Only be on properties with an irrigation water metering system that is compliant with
the National Framework for Non-urban Water Metering or be able to demonstrate
that the installation of such a meter is imminent (i.e. if you need such metering you
can include these costs in their proposed project cost).
f)
Provide evidence to show a connection to an irrigation supply system, or that
connection is imminent, and/or an approval to take water for irrigation directly from a
river.
g) Comply with relevant Commonwealth, state, territory and local authority
environmental, heritage, workplace health and safety, and planning laws, including
the building code.
h) Demonstrate strategies to eliminate or minimise adverse environmental impacts from
project activities
i)
Provide a technically valid farm irrigation plan for the project.
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Schedule 6 – Project Proposals
1.
Details and information to be included in Proposals
A Proposal provided to the Department as part of delivering the On-going Services
must include the following details:
(a)
details and information about the proposed Project in sufficient detail for the
Department to complete Items 1 to 15 of a Project Order;
(b)
a draft Milestone schedule for the works under the project that is compatible
with the milestone required to be completed at Attachment A of a Project
Order;
(c)
a description of the Works and technical documentation about the Works for
inclusion in Attachment B of a Project Order; and
(d)
a farm irrigation plan for inclusion in Attachment C of a Project Order
(e)
Evidence that demonstrates the Project Proposal is technically feasible
including an assessment of the technical feasibility of the Project Proposal by
a independent industry expert for inclusion in Attachment D of a Project Order
(i)
(f)
j)
including an assessment that the water savings and the engineering
solutions are achievable and appropriate to the needs of the irrigation
system and the project site.
Evidence that the Project Proposal will be carried out on a property with an
irrigation water metering system which is:
(i)
is compliant with the National Framework for Non-urban Water
Metering, or
(ii)
will be compliant with the National Framework when the Project Order is
finalised.
Evidence to show a connection to an irrigation supply system, or that connection is
imminent, and/or an approval to take water for irrigation directly from a river.
k) Evidence to show that the Project Proposal complies with relevant Approvals, or that
such Approvals will be gained prior to the transfer of the Eligible Water Entitlements.
l)
Evidence of strategies to eliminate or minimise adverse environmental impacts from
project activities.
(g)
2.
[insert or amend items as required, e.g. certificates provided by
technical certifier or engineer, Material required to allow the Department
to do due diligence on the Eligible Water Entitlement.].
Standard and quality of Proposals
Each Proposal provided to the Department as part of delivering the On-going
Services must comply with the following requirements for standard and quality:
(a)
[insert requirements, for example, about technical certification of Works
documentation, qualifications of the certifier etc.].
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Schedule 7 – Project Order
Project Order Number – [insert]
In providing the Proposal, the Delivery Partner has offered under clause 4.1 of the
Deed to provide the Project Services specified in the Proposal (details of the Deed
and Proposal are specified at Item 1 below). The Department accepts this offer on the
terms and conditions set out in the Deed and in this Project Order and issues this
Project Order in accordance with clause 4.3(a) of the Deed.
Item
Description
1.
Details of Deed
and Proposal
Clause
N/A
Details
Deed details: [Insert Deed reference number, date
and description]
Proposal details: [Insert Proposal reference
number, date and description]
2.
Names of
Parties to the
Deed
N/A
Department: Commonwealth of Australia as
represented by the Department of the Environment
ABN 34 190 894 983
Delivery Partner: [Insert name of Delivery Partner]
[Insert ABN of Delivery Partner]
3.
4.
Starting and
completing the
Project
7.3 and 44.1
Project
8.1 and 44.1
Start Date: [Insert date e.g. dd/mm/yy]
Completion Date: [Insert date e.g. dd/mm/yy] 3
years from the commencement date, which is the day
on which the water entitlements are transferred to the
Commonwealth. The commencement date must be
within six months of the date of execution of this
Project Order.
Project name: [insert name of the Project]
Project aim and purpose: [insert description of the
Project aim and purpose. If more space is
required, include these details in a new annexure,
i.e. Annexure C, and insert ‘As described in
Annexure C’.]
Project details: [insert description of the Project. If
more space is required, include these details in a
new annexure, i.e. Annexure C, and insert ‘As
described in Annexure C’. These details should
include a description of the Works and the
type/volume of Eligible Water Entitlement to be
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 71
transferred.]
5.
Eligible
Irrigator /
Proponent
details
8.1(a) and
44.1
Eligible Irrigator / Proponent:
Name: [insert name and ABN (if applicable) of the
Eligible Irrigator that will become the Proponent
for the purposes of this Project]
Postal address: [insert postal address]
Physical address: [insert physical address]
Phone: [insert phone number]
Fax: [insert facsimile number]
Email: [insert email address]
6.
7.
Eligible Water
Entitlement
details
8.1(b) and
44.1
Payment –
Fees
16.1 and
44.1
Eligible Water Entitlement:
[insert details of the Eligible Water Entitlement to
be transferred to the Commonwealth, including
the type, volume and any applicable registration
or reference number.]
[Insert the Fees, calculated based on the Pricing
Methodology specified in Schedule 4 of the Deed]
The total Fees are $[insert] GST inclusive, being:
(a)
$[insert] GST inclusive in consideration for
completion of the Project Services; and
(b)
$[insert] GST inclusive in payment for the
Delivery Partner’s administrative costs and other
expenses in providing the Project Services,
to be paid as set out in the Milestone schedule
forming Attachment A to this Project Order and
otherwise in accordance with the Project Agreement
and Schedule 4 of the Deed.
8.
Project
Services
21 and 44.1
(a)
Entering into a legally binding Works & Transfer
Agreement with the Proponent specified in Item
5 of this Project Order;
(b)
Facilitating the transfer of the Eligible Water
Entitlements specified in Item 6 of this Project
Order to the Commonwealth;
(c)
Completing the Works specified in Attachment B
of this Project Order; and
(d)
Providing Reports in relation to the Project and
complying with all other requirements of this
Project Agreement,
in accordance with the Milestone schedule forming
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 72
Attachment A of this Project Order.
9.
Particular
policies or
requirements
of the
Department
21.1(g)
10.
Subcontractors 22.4(a)(i)(B)
(Project
Services)
[Insert names and ABNs of any subcontractors
approved for engagement in delivery of the
Project Services specified in this Project Order.
Otherwise insert 'Not applicable'.]
11.
Progress
meetings and
reports
23 and
Schedule 3
[Insert details of progress meetings and reports
required, to the extent these differ from those set
out in the Management Schedule. Otherwise insert
'As set out in the Management Schedule’.] As set
out in Management Schedule
12.
Performance
Criteria
24 and 44.1
As required under Performance Criteria and
13.
Department
Material
25.4 and
44.1
[Insert specific Material to be provided to the
Delivery Partner by the Department (if any) that
will assist it in completing the Project Services,
and any restrictions on the use of the Material.
Otherwise insert 'Not applicable’.]
14.
Insurance
28
(a)
[Insert any particular policies or requirements (not
otherwise set out in the Deed or Project
Agreement) that are to be complied with by the
Delivery Partner in providing the Project Services.
Otherwise, insert ‘Not applicable’.] Not applicable
Works insurance covering loss of, damage to, or
destruction of:
(i)
the Works;
(ii)
unfixed goods and materials to be used in
completion of the Works (whether stored
on the Property or elsewhere); and
(iii)
plant and equipment used by the Delivery
Partner and its subcontractors in
completing the Works,
for full replacement value;
(b)
Workers’ compensation insurance as required
by Law;
(c)
Public liability insurance for an insured amount
of $10 million per occurrence and not less than
$20 million in aggregate; and
(d)
Either professional indemnity or errors and
omissions insurance (including against design
risks in relation to the Works) for an insured
amount of $5 million per occurrence and not less
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 73
than $10 million in aggregate
Note to drafter: The insurance amounts inserted
above are default amounts only. You will need to
undertake a risk assessment and set the insurance
amounts on the basis of the risk assessment.
15.
Confidential
Information
31 and 44.1
Confidential Information of the Department:
[Insert name and description of each item of
Confidential Information and period of
confidentiality]
Confidential Information of the Delivery Partner:
[Insert name and description of each item of
Confidential Information and period of
confidentiality]
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 74
Execution page
EXECUTED as a deed
SIGNED, SEALED AND DELIVERED for
and on behalf of the Commonwealth of
Australia as represented by the
Department of Agriculture and Water
Resources ABN 24 113 085 695 by a
duly authorised representative
Name of authorised representative (print)
Name of witness (print)
Signature of authorised representative
Signature of witness
Date
Date
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 75
List of Attachments to Project Order
Attachment A: Milestone schedule
Attachment B: Details of the Works
Attachment C: Farm Irrigation Plan
Attachment D: Assessment of the technical feasibility of the Project Proposal by a
independent industry expert
Attachment E: Consent to Assignment form
Attachment F: Consent for the water entitlement transfer and Department to conduct
searches
[List other attachments as required]
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 76
[Prepare and attach a Milestone schedule which sets out the tasks to be completed by
the Delivery Partner in completing the Project, dates by which this must occur and
Fees payable on completion of the Milestone. See the example below and add or
amend the Milestones as required, including depending on the complexity of the
Project.]
Attachment A: Milestone schedule
Milestone
no.
Date for
completion
Description of Milestone
Payment of Fees
(GST inclusive)
Milestone 1
date being
within six
months of the
execution date
Delivery Partner to enter into a legally
binding Works & Transfer Agreement
with the Eligible Irrigator and provide
the Department with a copy of the
signature page to that agreement.
$ In line with Item
3a of the Pricing
Schedule
Milestone 2
date being
within six
months of the
execution date
Delivery Partner to facilitate
completion of the transfer of Eligible
Water Entitlement referred to and
provides notice to the Department.
$ In line with Item
3b of the Pricing
Schedule
Milestone 3
date being the
Delivery Partner to provide six monthly
first report date report A
after the
commencement
date
$ In line with Item
3c of the Pricing
Schedule
Milestone 4
date being six
months after
the first report
date
Delivery Partner to provide six monthly
report B
$ In line with Item
3c of the Pricing
Schedule
Milestone 5
date being six
months after
the second
report date
Delivery Partner to provide six monthly
report C
$ In line with Item
3c of the Pricing
Schedule
Milestone 6
date being six
months after
the third report
date
Delivery Partner to provide six monthly
report D
$ In line with Item
3c of the Pricing
Schedule
Milestone 7
date being six
months after
the fourth
report date
Delivery Partner to provide six monthly
report E
$ In line with Item
3c of the Pricing
Schedule
Milestone 8
date being six
months after
the fifth report
date
Delivery Partner to provide six monthly
report F
$ In line with Item
3c of the Pricing
Schedule
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 77
Milestone 9
Within thirty six
months of the
commencement
date
Delivery Partner to complete the
Works specified in Attachment B of
this Project Order and provide notice
to the Department
Nil
Milestone 10
On completion
of the project
Delivery Partner to provide the final
report on the project
$ In line with Item
3d of the Pricing
Schedule
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 78
[Prepare and attach complete details of the Works to be completed by the Delivery
Partner, e.g. the design and other documentation certified by an irrigation expert that
was provided with the Proposal.]
Attachment B: Details of the Works
See attached
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 79
Schedule 8 – Works & Transfer Agreement
Requirements
Name of requirement
or obligation for
inclusion in Works &
Transfer Agreement
Description of requirement or obligation
General requirements
and obligations
applying to
subcontractors
Each obligation or requirement that the Delivery Partner is required
to impose on or pass through to subcontractors under this Deed or
any Project Agreement (see clause 22.5), including those
requirements and obligations listed in clause 22.4(a)(iii).
Capacity to comply
with Deed and Project
Agreement
Any requirement or obligation required to enable the Delivery
Partner to comply with this Deed and the relevant Project
Agreement. For example, rights sufficient to allow the Department to
access the Property and inspect the Works during construction and
following completion in accordance with clauses 10.3(a) and 12.
Insurance
Any insurance requirements that the Delivery Partner must require a
subcontractor to comply with, or may require a Proponent to comply
with under clauses 28.1 and 28.2.
Works
That all rights, title and interest in the Works (including risk and
responsibility to insure) will:
Other Australian
Government Funding
(a)
vest in the Proponent on a date not to be later than the
Completion Date; and
(b)
will be unencumbered, i.e. not subject to any legal or equitable
interest, charge or security of the Department, the Delivery
Partner or a third-party.
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
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 80
Name of requirement
or obligation for
inclusion in Works &
Transfer Agreement
Description of requirement or obligation
Commonwealth and which have not been expended by the
Organisation in accordance with the terms of the relevant
Environmental Arrangement.
Water entitlements
100% of the minimum water savings for the Project must be
transferred to the Commonwealth. If additional water savings are
made by the Project they may be retained by the Proponent.
The following must be completed prior to transfer of the Eligible
Water Entitlements to the Commonwealth:
a) Any encumbrances on the Eligible Water Entitlements must
be removed
b) An exemption from any trading restrictions on the Eligible
Water Entitlements [contemplated under clause 8.1(a)(ii)];
Any outstanding fees to water authorities need to be paid / remain
the responsibility of the Proponent.
Water entitlement
transfer and
commencement of
Project
You are required to sign a Water Transfer Deed and transfer the
Eligible Water Entitlements to the Commonwealth within six months
from the issue of the Project Order. The date of the transfer of the
entitlements is the Commencement Date of the Project.
Workplace Health &
Safety
Report notifiable incidents to the Delivery Partner
Comply, and use reasonable endeavours to ensure that
subcontractors comply, with the provisions of all relevant statutes,
regulations, by-laws and requirements of any Commonwealth, state,
territory or local authority in respect of work health and safety.
Develop a site/project specific work health and safety plans
(including activity safety analysis and other relevant documentation).
Reporting
Six monthly? Reports to the Delivery Partner on the Works and their
progress.
Access and use of
information
Agreement to access by Delivery Partner and Department or their
subcontractors, and agreement to use of information for publicity etc
purposes.
Variations to Works
Approvals
all relevant Approvals [as required under clause 10.1] are to be
obtained prior to the transfer of the Eligible Water Entitlements
Misc
Commencement and finalisation dates, description of works, any
sub-contractors, details of monetary / in-kind contributions
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 81
Name of requirement
or obligation for
inclusion in Works &
Transfer Agreement
Milestone and Payment
Schedule
Description of requirement or obligation
Reflecting a single payment shortly after the transfer of the water
entitlements, and milestones that reflect the Works / Project
Proposal submitted.
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 82
Schedule 9 – Template Water Transfer Deed
[Insert template Water Transfer Deed ]
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 83
Execution page
EXECUTED as a deed
SIGNED, SEALED AND DELIVERED for
and on behalf of the Commonwealth of
Australia as represented by the
Department of Agriculture and Water
Resourcse ABN 24 113 085 695 by a
duly authorised representative
Name of authorised representative (print)
Name of witness (print)
Signature of authorised representative
Signature of witness
Date
Date
Note: Select and complete the appropriate execution block for the entity you are
contracting with from the list below and delete the rest. Where an entity is signing as a
trustee of a trust, contact the General Counsel Branch for the appropriate execution
clause.
[For a company with multiple directors]
SIGNED, SEALED AND DELIVERED by
[insert name of company and ABN (i.e.
Smith Plantings Pty Ltd ABN 12 123
123 123)] in accordance with section 127
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
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 84
[For a company with a sole director]
SIGNED, SEALED AND DELIVERED by
[insert name of company and ABN (i.e.
Smith Plantings Pty Ltd ABN 12 123
123 123)] in accordance with section 127
of the Corporations Act 2001 (Cth) by
Name of Sole Director / Company
Secretary (print)
Name of witness (print)
Signature of Sole Director / Company
Secretary
Signature of witness
Date
Date
[For a partnership or an association of more than several (i.e. 2-3) partners / members]
SIGNED, SEALED AND DEVLIVERED
for and on behalf of [insert name of
partnership / association and ABN (i.e.
Smith and Sons ABN 12 123 123 123)]
by a duly authorised representative who
warrants that they have the authority to
sign this Deed on behalf of [insert name
of partnership / association (i.e. Smith
and Sons)]
in the presence of:
Name of authorised representative (print)
Name of witness (print)
Signature of authorised representative
Signature of witness
Date
Date
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 85
[For a partnership of several (i.e. 2-3) individuals]
SIGNED, SEALED AND DELIVERED for
and on behalf of [insert name of
partnership and ABN (i.e. Alan J Smith
and Mary J Smith ABN 12 123 123 123)]
by:
[insert name of partner i.e. Alan J Smith]
in the presence of
Signature
Signature of witness
Date
Name of witness (print)
Date
[insert name of partner i.e. Mary J Smith]
in the presence of
Signature
Signature of witness
Date
Name of witness (print)
Date
[For an individual]
SIGNED, SEALED AND DELIVERED by
[Insert name of individual]
in the presence of
Signature
Signature of witness
Name (print)
Name of witness (print)
Date
Date
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 86
Schedule 10 – Key Performance Indicators (put
in sch 3 instead?)
The Delivery Partner is to submit regular reports in accordance with the Deed / six monthly
project reports which contain the following:
a. progress reports covering information such as recruitment and project progress,
payments, compliance, and achievements;
b. Proponent details and participation survey;
c. reporting on project water saving outcomes including tangible measurables;
d. end of project reports, including financial reports and reports on socio-economic
outcomes;
e. reporting on KPIs;
f.
any ad hoc reports required due to any non-compliance, incidents or hazards; and
g. [insert any relevant additional reports].
The Delivery Partner is to report on how they have met, or are meeting, the following KPIs
for the Project:
KPI 1 (Efficiency)
KPI 1 will measure whether:

projects commenced and were completed on time, in accordance with timeframes
agreed between the delivery partner, the irrigator and the Department

project budgets are adhered to and acquitted as per the requirements of the Deed
and the Project Order, and

infrastructure payments to irrigators and suppliers are paid on time and accurately
reflect works completed.
KPI 2 (Effectiveness)
KPI 2 will measure whether:

projects achieved the outcomes agreed between the delivery partner and the
Department

workplace health and safety issues are managed across irrigation efficiency projects,
and

the number of irrigation efficiency projects agreed between parties were commenced
and successfully completed.
KPI 3 (Quality)
KPI 3 will measure whether:
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 87

feedback from stakeholders demonstrates the quality of services delivered by the
delivery partner; and

feedback from irrigators regarding the quality of services delivered by the delivery
partner.
KPI 4 (Social and economic)
KPI 4 will measure whether:

the irrigator proponent has a system that enables the same productive output as
before construction, and

the local community has benefited from the infrastructure construction.
Deed of Standing Offer for engagement of a Delivery Partner as part of the Commonwealth On Farm Further Irrigation Efficiency Programme
page 88