Local Government Header Agreement
Between <Council> and the Department of Planning
and Community Development
About funding arrangements between <Council> and the Department
of Planning and Community Development
Objectives
The broad objective of the Department of Planning and Community Development (DPCD)
grants to Local Government Authorities is to progress social, economic and environmental
outcomes for Victoria’s communities, as set out in the Victorian State–Local Government
Agreement (VSLGA) by:
(a)
(b)
(c)
(d)
(e)
improving communication and consultation between state and local government
improving coordination and strategic planning of government services and functions at
the local level
strengthening the capacity of local government to provide services and functions at
the local level
promoting greater transparency and accountability between state and local
government
fostering a culture of continuous improvement to enhance the performance of local
government.
Guiding principles
The principles guiding state and local government in the development and implementation
of funding are established by the Victorian State–Local Government Agreement, as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Relations between state and local government should be conducted in a spirit of
mutual respect with an emphasis on improving communication and cooperation.
Local government is accountable to its local communities, and its operational
autonomy is recognised and supported.
The Victorian Government is accountable to the people of Victoria, and its statewide
obligations are recognised.
The diversity of local government’s financial capacity and the Victorian Government’s
fiscal position should be mutually recognised.
The transparency of the financial relations between state and local government should
be improved to enhance decision making. The Victorian Government commits to
reporting its financial relationships with local government in its annual budget.
The use of intergovernmental agreements should be promoted to ensure roles and
responsibilities are clearly articulated and full financial considerations are made.
State and local government recognise the value in seeking the support of the other
when making representations to the Commonwealth Government that have
implications for another level of government.
Local government recognises that it is responsible for significant community assets
and commits to sound public governance through good financial and asset
management reporting.
The Header Agreement, Activity Schedules and precedence
Agreements for funding arrangements between <Council> and the Department consist of:


this Header Agreement, and documents or instructions referenced by it
Activity Schedules, which set out for every funded Activity:
(a) Activity details
(b) funding
(c) agreed actions and payments
(d) Activity budget
(e) reporting requirements
(f) other Activity specific requirements
(g) notices.
If there is a conflict or inconsistency between the terms and conditions of this Header
Agreement with the Department and an Activity Schedule, then the Activity Schedule and
documents or instructions referenced by it have precedence, to the extent of the conflict or
inconsistency.
Purpose of this Header Agreement
The purpose of this Header Agreement is to set out:
(a) the way in which the parties will enter funding agreements for the provision of Activity
funding by the Department to the Council
(b) the agreed terms and conditions that govern funded Activities between the
Department and the Council.
Review of the Header Agreement
The terms and conditions of Header Agreements between Victorian Councils and the
Department will be jointly reviewed every four (4) years by the Department and the
Municipal Association of Victoria (representing Victorian Councils). This Header Agreement
may be varied only through the review process and agreed by each party in writing.
Parties to the Header Agreement
This Header Agreement is between the State of Victoria (the State), through DPCD, and
<Council>.
Role of the parties
The parties will work in partnership to realise the goals and commitments made in this
Header Agreement.
Acting in good faith
The parties will act reasonably and in good faith at all times.
Representation and contacts
The State’s representative for the purposes of this Header Agreement is the DPCD
representative as indicated by the Execution clause.
The Council’s representative for the purposes of this Header Agreement is the Councils
representative as indicated by the Execution clause.
Definition of terms
In this Header Agreement and Activity Schedules, certain words and phrases have defined
meanings. Where a defined word or phrase is used in one clause only, it is usually defined in
that clause.
In this Header Agreement, unless the contrary appears:
(a)
(b)
We or Us (and grammatical variations such as Our) means the State of Victoria
represented by the Department specified in the Agreement and includes Our officers,
delegates, employees, other contractors and agents
You (and grammatical variations such as Your) means the Council set out in the
Activity Schedule, and includes Your officers, employees, agents, volunteers,
subcontractors and successors.
Also in this Header Agreement, unless the contrary appears:
Activity means any tasks, activities, services or other purposes for which funding is
provided. The Activity is described in the Activity Schedule.
Activity Period means the period during which the Activity must be completed as specified
in the Activity Schedule.
Activity Material means all Material:
(a)
(b)
that the Council or the Department bring into existence in performing this Header
Agreement
copied or derived from material referred to in paragraph (a).
Activity Schedule means the schedule setting out the particulars of the Funding and the
Activity signed by the Department and the Council.
Agreement means the funding agreement between the Department and the Council for the
Funding of the Activity, comprising the Activity Schedule signed by the parties and these
terms and conditions.
Asset means any item of personal, real or intangible property that is controlled by the
Council and from which future economic benefits are expected to flow. Assets covered by
this Agreement have a price or value of $5000 or more (GST inclusive), and have been
created, acquired or leased wholly or in part with the funding, except intellectual property
rights and licences provided for in the Activity Schedule.
The definition of Asset does not include the provision for minor capital or capital upgrade
purchases.
Intangible assets are those assets that lack a physical presence but are constituted by a
right enforceable in a court of law or equity. Intellectual property is an example of intangible
property.
Background Intellectual Property means the Material of each party that was either
created before the start of this Header Agreement or created independently of this
Agreement and:
(a)
(b)
(c)
incorporated in the Agreement Material, or
supplied with, or as part of, the Activity Material, or
required to be supplied with, or as part of, the Activity Material.
Business Day means a day on which the major trading banks are open for ordinary
business in Melbourne, Victoria, but excludes a Saturday, Sunday or public holiday.
Council means the Council set out in the Activity Schedule.
Council Contributions means the financial or in-kind resources (with in-kind resources
valued at cost) other than the Funding or Other Contributions, which are set out in the
Activity Schedule and are used by You for the Activity.
Date of the Agreement means the date written on the execution page of the Activity
Schedule, and if no date or more than one date is written there, then the date on which the
Activity Schedule is signed by the last party to sign it.
DPCD means the Department of Planning and Community Development.
Extra Conditions means terms and conditions in the Activity Schedule.
Funds or Funding means the money, or any part of it, paid to the Council as set out in the
Activity Schedule.
GST has the meaning given in section 195-1 of the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth).
Header Agreement means the preamble, parties to the agreement, terms and conditions,
and any documents incorporated by reference into this document.
Intellectual Property means all intellectual property (excluding Background Intellectual
Property) developed, created, discovered, brought into existence or otherwise acquired by
the Council under this Header Agreement.
Intellectual Property Rights means all copyright, rights in relation to inventions
(including patent rights), registered and unregistered trademarks (including service marks),
registered designs and other rights resulting from intellectual Activity in industrial, scientific,
literary or artistic fields, but does not include moral rights.
Licence means a non-exclusive, worldwide, everlasting, irrevocable, royalty-free license to
Council to exercise all rights in relation to the Intellectual Property it applies to as if the
licensee were the owner, including the right to sublicense, but not including the right to
transfer or assign the Intellectual Property, or to seek or enforce remedies for infringements
of the Intellectual Property against a third party.
Material includes documents, equipment, software (including source code and object code
versions), goods, information and data stored by any means, including all copies and
extracts of them.
Other Contributions means financial or in-kind resources (with in-kind resources valued at
cost) other than the Funding or Council Contributions, which are set out in the Activity
Schedule and are used by the Council for the Activity.
Program means the Department program that is providing Funding for the Activity, and
that is referred to in Item 3 of the Activity Schedule.
RCTI means a recipient created tax invoice, as defined in section 195-1 of the GST Act.
RCTI Agreement means an agreement of the kind referred to in the GST Act Classes of
Recipient Created Tax Invoice Determination (No .1) 2000 of the Commissioner of Taxation.
Tax Invoice has the meaning given in section 195-1 of the GST Act.
Taxable Supply has the meaning given in section 195-1 of the GST Act.
SLGFA means the State–Local Government Funding Agreements (May 2008).
VSLGA means the Victorian State–Local Government Agreement (May 2008).
Terms and conditions
1.
Term of the Header Agreement
Subject to the right of either party to end this Header Agreement as set out below under the
heading ‘Ending the Scheduled Activity or this Header Agreement’, this is a multi-year
agreement, for an indefinite period.
2.
Establishing new funded Activities between the Council and the
Department
Once this Header Agreement is executed, any new offer made by the Department to
the Council to provide Funding for an Activity will be under the standing terms and
conditions of this agreement.
With respect to each particular Activity that the Department agrees to fund, the
parties will enter the agreement by completing and signing an Activity Schedule.
3.
Review of the operation of this Header Agreement
The Department representative will meet with the Council’s representative annually
(or more often if the Council and the Department agree) to review operation under
this Header Agreement. The parties agree to use their best endeavours during the
review to resolve any relevant issues that arise.
4.
About the funded Activities
The Council must carry out the funded Activities in any Activity Schedule subject to
this agreement—including additional conditions incorporated into an Activity
Schedule—effectively and to a high professional standard.
5.
About the Funding
5.1
Paying the Funding
The Department will provide the Council the Funding at the times and in the manner
specified in the Activity Schedule subject to:
 the Council's compliance with the Header Agreement and the relevant Activity
Schedule.
 Funding being made available to the Department by the Victorian Parliament or
the Federal Parliament
5.2
Acquitting the Funding
The Council must provide to the Department a final or end-of-year report as set out
in the Activity Schedule within forty (40) business days of completion of the Activity
or on a yearly basis where Activities are ongoing.
A financial acquittal report, in the agreed format, must be certified by the Council’s
authorised delegate, verifying that the Council has spent the Funding on the Activity
in accordance with the Activity Schedule.
5.3
Right to audit
The Department maintains the right to audit the Activity if and when required to do
so, at the Department’s own cost.
5.4
Unspent Funding
On completion of the Activity, if the Council has any unspent and uncommitted
Funds, it must return these Funds unless the Department has agreed that the
Council may use the Funds for another purpose.
6.
Reporting
6.1
The Council will give the Department information and reports, in the agreed format,
about the Activity as set out in the Activity Schedule.
If either the Council or the Department become aware of any problems or issues
with the Activity or the Council’s performance under this Header Agreement, then
that party will immediately notify the other in writing.
If the Agreement ends (for whatever reason) or the Council stops providing some or
all of the Activity, the Council will give the Department:
(a)
(b)
(c)
notice in writing within twenty (20) Business Days and state the reason the
Council has stopped providing those Activities
within twenty (20) Business Days of receiving a written request from the
Department, a set of financial statements that detail all the Funding for the
Activity that has stopped, and any unspent Funding
any other outstanding information or reports the Council needs to give the
Department as specified in the Activity Schedule.
6.2
Keeping records
The Council must create and maintain full and accurate accounts and records of the
conduct of the Activity, including, without limitation, progress against agreed actions,
the receipt and use of Funding, Other Contributions (if any), Council Contributions (if
any), the creation, acquisition and Disposal of Assets, and the creation of Intellectual
Property Rights in Activity Material.
7.
Assets
The Council can use the Funding only to purchase or create the Assets that are
specified in the Activity Schedule. It must obtain the Department’s prior approval in
writing if the Council wants to use the Funding to purchase or create Assets not
specified in the Activity Schedule.
The Council owns the Assets purchased from the Funding unless the Activity
Schedule states otherwise.
The Council needs the Department’s approval in writing before the Council uses an
Asset in a way that is not related to delivering the Activity.
The Council must repair or replace assets and record this in the asset register if:
(a) above and beyond the normal lifecycle of an asset the Council sells any Assets,
or
(b) the Council loses, damages or destroys an asset.
The Council must provide copies of the assets register to the Department as and
when requested.
8.
Tax Invoices
The Council agrees to allow the Department to issue the Council with a Recipient
Created Tax Invoice (RCTI) for any Taxable Supplies made under this Agreement.
Where the Department issues an RCTI, the Council must not issue a Tax Invoice.
If using RCTI’s is not agreed in writing by both Parties, then the Council must give
Us a tax invoice in accordance with the GST Act in relation to any Taxable Supply by
the Council to the Department in connection with the Activity before payment of
Funds.
9.
Insurance and indemnity
If the Council can provide evidence of current insurance and indemnity coverage by
Civic Mutual Plus, then no indemnity clause is required in the Activity Schedule. This
evidence must be provided to DPCD prior to signing this Header Agreement. Council
must advise DPCD immediately and on each occasion that cover by Civic Mutual Plus
Trust is not provided for any period of time.
10.
Intellectual Property
The Background Intellectual Property of each party remains the property of that
party as specified in the Activity Schedule. The Department grants the Council a
licence to use, copy, reproduce, communicate, adapt and exploit Background
Intellectual Property in accordance with any conditions or restrictions the
Department may notify to the Council.
The Council will own all Activity Intellectual Property, but grants a Licence, and the
Department accepts that Licence over the Activity Intellectual Property and
Background Intellectual Property or any Intellectual Property of a third party, to the
extent the Licence is needed to allow the Department to enjoy the full benefit related
to this Activity.
11.
Council Contributions and Other Contributions to this Activity
11.1
Council Contributions and Other Contributions
The Council must provide its Council Contributions and Other Contributions for the
Activity if specified in the Activity Schedule. Council Contributions must not include
any amount provided to the Council by a Commonwealth, state or territory
department or agency.
11.2
Changes to Other Contributions
If the Council is unable to obtain Other Contributions or obtain them in time to
enable completion of the Activity, or the arrangement to receive Other Contributions
ends, then the Department may:
(a)
(b)
(c)
12.
agree with the Council, in writing, to a reduction in scope of the Activity and
any adjustment to the Funds for the Council to complete the reduced Activity
and vary this Activity accordingly
suspend payment of the Funds or an instalment of the Funds until the Other
Contributions are received
terminate this Agreement in accordance with clause 16 ‘Ending the Scheduled
Activity or this Header Agreement’.
Acknowledgement and publicity
The Council must acknowledge the financial and other support received from the
Department in all publications, promotional and advertising materials, public
announcements and activities in relation to the Activity in the Activity Schedule. The
Council must make such acknowledgement in accordance with special requirements
named in the Activity Schedule.
13.
Subcontractors
Any subcontractors appointed to work on the Activity must comply with the terms
and conditions specified in the agreement, and the Council must make them aware
of these requirements upon appointment. Throughout the Activity Period, the Council
must provide a list of subcontractors to Us on request within a reasonable timeframe
notified by Us.
14.
Disputes
14.1
How disputes will be resolved
The parties will work together to fulfill their duties and obligations under this Header
Agreement and Activity Schedules. If one party believes the Activity Schedule is not
being fulfilled, then they will discuss their concerns with a view to identifying a
satisfactory resolution.
If a dispute arises between the parties concerning the terms of this Header
Agreement or provision of the Activity that cannot be resolved through the initial
discussions, or meeting, then the party claiming that a dispute has arisen must give
written notice to the other party specifying the nature of the dispute.
If the dispute is not resolved within ten (10) business days of the written notice in
accordance with 17, then the dispute must be referred to the appropriate senior
state and local government officials to discuss and attempt to resolve the issue.
Failing resolution of the dispute, the appropriate minister and the Minister for Local
Government should be notified.
Neither party may commence any other action until completion of the dispute
resolution process, including action detailed in clause 16, ‘Ending the Scheduled
Activity or this Header Agreement’.
14.2
Performance of funded Activities
Notwithstanding the existence of a dispute, the parties will continue to perform their
obligations under this Header Agreement and as set out in Activity Schedules.
15.
Breaches of the Header Agreement or this Activity Schedule
15.1
Breaches by either party
If either party breaches the Header Agreement or Activity Schedules, they must:
(a)
(b)
15.2
remedy the breach within twenty (20) business days of receiving written notice
from the other party, or
implement a plan agreed by both parties that sets out remedy actions and the
time frame to remedy the breach.
Breaches that are not remedied:
If a breach is not remedied according to clause 15.1, then the Department may
decide to delay, modify or end payments for all or part of the Funding, and will
immediately notify the Council in writing, in a manner that is consistent with section
5 of the operational guidelines of the VSLGA.
16.
Ending the Scheduled Activity or this Header Agreement
16.1
Ending the Scheduled Activity or this Header Agreement in case of
breach
If a party gives written notice of a breach and it is not remedied in the agreed
timeframe established by a means set out in clause 15 or otherwise, then the party
who gave written notice may terminate this Header Agreement or an Activity
Schedule by giving written notice to the other party. This does not require the
consent of both parties.
If either party considers that the other party wants to end this Header Agreement or
an Activity Schedule without good reason, or a party is in dispute with the other
party about the terms or interpretation of this Header Agreement or an Activity
Schedule, then that party may start the dispute resolution process set out in clause
14 by writing to the other party.
16.2
Ending the Scheduled Activity or this Header Agreement without breach
If either the Council or the Department want to end this Header Agreement or an
Activity Schedule where there has not been a breach, the Council or the Department
can do so at any time by giving the other party at least sixty (60) business days
notice in writing, and must:
(a)
(b)
pay the reasonable costs of the other party that arise directly out of it ending
this Header Agreement or an Activity Schedule, other than loss of profit
use its best efforts to minimise any costs it may have as a result of this Header
Agreement or an Activity Schedule ending.
17.
Notice
17.1
Giving of notice
A party giving notice or notifying under this Header Agreement must do so in writing
or by electronic mail or facsimile transmission:
(a) directed to the recipient’s address, as varied by any notice
(b) hand delivered or sent by pre-paid post or transmitted electronically to that
address.
The parties’ address details are as specified in the Activity Schedule.
17.2
Receipt of notice
A notice given in accordance with subclause 17.1 is taken to be received:
(a) if hand delivered, on delivery
(b) if sent by pre-paid post, five (5) Business Days after the date of posting unless
it has been received earlier
(c) if transmitted electronically, upon actual receipt by the addressee.
Execution
Executed by the parties as an Agreement on the ........................ day of ...................
in the year 2010.
EXECUTED for and on behalf of the State of Victoria
represented by and acting through the Department of Planning and Community
Development (DPCD) ABN 30 485 673 497
by <DPCD Rep>, <Title>, who by signing warrants that they have the authority to bind
DPCD.
....................................................................
EXECUTED for and on behalf of <Council>,
ABN <ABN>, by <CEO>, CEO, who by signing warrants that they have the authority to bind
<Council>.
....................................................................