Sample Works Agreement version 7 - Amazon S3 · Proponent’s purchase and installation of the...

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AGREEMENT

Between

Department of Natural Resources and Mines

and

Version 7.2 24 November 2015

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This Agreement is made between

State of Queensland acting through the Department of Natural Resources and Mines

(“DNRM”) AND The person/organisation listed at Item 1 of Schedule 1

(“Proponent”) AND The person/organisation listed at Item 2 of Schedule 1

(“Landholder”) AND The person/organisation listed at Item 10 of Schedule 1

(“Entitlement Owner”) Background A. The Commonwealth and the State entered into a Water Management

Partnership Agreement in 2010 as part of the ‘Water for our Future’ initiative.

B. The Commonwealth, as part of its Sustainable Rural Water Use and

Infrastructure Program under this initiative, is providing funds to DNRM to allow for the administration of the Healthy Headwaters Water Use Efficiency Project – Round Nine (Project).

C. The Project will provide on-farm infrastructure and technology to

improve the efficiency of water use on irrigation farms in the Queensland Murray Darling Basin and return at least 50% of the Agreed Water Savings to the Commonwealth under the Water Entitlement Transfer Deed.

D. Under the Project, DNRM is to contract with the Proponent for the

Proponent’s purchase and installation of the Works. E. The Proponent submitted the Proposal to the State for funding under

the Project which has been approved on the basis that the proposed Works will result in water savings for the environment.

F. The Parties wish to record the terms and conditions of their agreement.

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It is agreed: 1. Definitions and Interpretation

1.1 Definitions: “Additional Water Entitlement” means an additional volume of water which may be provided as a Proponent Contribution, but does not form part of the 50% minimum of the Commonwealth’s Proportion. “Agreed Water Savings” means the total volume of water that is expected to be saved by the Proponent through installation of the Works, of which the Commonwealth’s Proportion is to be transferred to the Commonwealth under the Water Entitlement Transfer Deed. “Agreed Market Value” means the market value of the water as specified in Item 7 of Schedule 1. ”Agreement” means the clauses contained in this document and the attached Schedules and Annexures. “Approved Project” means the project as approved by the State and contained in Annexure 2. “Asset” means any item of tangible property, purchased, leased, created or otherwise brought into existence wholly or in part, by use of the Funds, valued at over $5 000 (GST inclusive), and includes the Works and Works Materials, but does not include Project Material or the Water Access Entitlement. “Asset Register” means a written register that contains a list of all Assets, in the form provided in Schedule 3, and which forms part of the Proponent’s quarterly reporting requirements to DNRM. “Bill of Quantities” means an itemised list of materials, parts and labour for each component of the Approved Project. “Certification” means the declaration provided by an Irrigation Professional as to:

(a) the technical feasibility of the Works; (b) the Agreed Water Savings to be achieved from the Works; and (c) reasonable project costings.

“Code” means the Building Code 2013, made under the Fair Work (Building Industry) Act 2012 (Cth). “Commencement Date” means the date this Agreement is executed by the last Party to sign. “Commissioning Report” means a written statement that:

(a) is provided by an Irrigation Professional, or other person as approved by DNRM, after inspection of the installed Works; and

(b) states the Irrigation Professional’s, or other person as approved by DNRM’s, satisfaction that the Works have been completed in accordance with the Approved Project.

“Commonwealth” means the Commonwealth of Australia.

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“Commonwealth’s Proportion” means the amount of water to be transferred to the Commonwealth, which should be at least 50% of the Agreed Water Savings, as specified in Item 10 of Schedule 1. “Completion Date” means the date this Agreement ends, under Item 4 of Schedule 1, and is the date by which the following must be completed:

(a) the Proponent has completed the Works and provided all Reports, including a Final Report, to DNRM;

(b) DNRM has made the final payment owing to the Proponent under this Agreement; and

(c) The Proponent has returned any Unspent Funds to DNRM.

“Compliance Plan” means the plan to be provided by the Proponent (if applicable) prior to the commencement of Works, in a form to be provided by DNRM, including, but not limited to, details of:

(a) all necessary planning, environmental, development, building and regulatory approvals for the commencement of the Works

(b) the plan by which these approvals have been or will be obtained, including the nature and timing of written evidence to DRNM

as set out in Item 12 of Schedule 1. “Confidential Information” includes DNRM Material and all other information that:

(a) is by its nature confidential; (b) the Party providing the information (called the “Disclosing Party”)

designates to be confidential; or (c) the Party receiving the information (called the “Receiving Party”)

knows or ought to know is confidential; but does not include information that:

(d) is or becomes public knowledge other than by breach of this Agreement;

(e) is in the possession of the Receiving Party without restriction as a result of a disclosure before the date of receipt from the Disclosing Party;

(f) is independently developed or acquired by the Receiving Party; or

(g) is required to be disclosed by law, but only to the extent of that disclosure.

“Construction Site” means the area of land on the Property where the Works are to be constructed as shown on the drawing at Annexure 1. “Contributing Proportion” means:

(a) in respect of DNRM, the proportion of the total cost of the Approved Project that is met by the Funds; and

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(b) in respect of the Proponent, the proportion of the total cost of the Approved Project that is met by the Proponent's Contribution, as set out in Item 7 of Schedule 1.

“Correctly Rendered Tax Invoice” means an invoice that complies with the following requirements:

(a) the amount claimed in the invoice is due for payment under this Agreement;

(b) the amount claimed in the invoice is correctly calculated under this Agreement;

(c) the invoice correctly identifies the performance of Milestones on which the payment is conditional; and

(d) the invoice complies with all applicable requirements of the GST Act.

“Detailed Design and Implementation Plan” means the design specifications for the Approved Project and a description of how the Approved Project will be implemented (Order of Construction). “DNRM” means the State of Queensland as represented by the Department of Natural Resources and Mines or other department or agency that has from time to time responsibility for this Agreement. “DNRM’s Consent” means the prior written consent of the DNRM Contact Officer, which must not be unreasonably withheld, but may be given conditionally. “DNRM Contact Officer” means the person named at Item 5 of Schedule 1. “DNRM Material” means any material or information provided by DNRM to the Proponent for the purposes of this Agreement, including but not limited to copies or derivations from that material and any material listed in Item 8 of Schedule 1. “DoTE” means the Commonwealth of Australia as represented by the Department of the Environment or other department or agency that has from time to time responsibility for this Agreement. "Entitlement Owner” means the person(s) who is, or who are, the registered legal owner(s) of the Water Access Entitlement as specified in Item 10 of Schedule 1. “Final Report” means the report to be provided upon completion of the Approved Project, in accordance with clause 10. "Funds" means the amount to be provided by DNRM to the Proponent as specified in Item 7 of Schedule 1. “GST” means any tax imposed under the GST Law and includes GST within the meaning of the GST Act. “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended. “GST Law” means the GST law as defined in the GST Act and includes any act of Parliament of Australia that imposes or deals with GST. “Intermediate Milestone Payment” means any payment made between the

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first and final milestone payments, as specified in Schedule 2. “Irrigation Professional” means an individual who is a:

(a) Registered Professional Engineer of Queensland, under the Engineers Approved Assessment Scheme in accordance with the Professional Engineers Act 2002 (Qld); or

(b) Certified Irrigation Designer (Agricultural Irrigation) or a Certified Irrigation Agronomist, who has met the requirements of certification under of Irrigation Australia’s Certification Program.

“Landholder” means the legal owner(s) of the Property as specified in Item 2 of Schedule 1. “Legal Due Diligence” means in respect of a Water Access Entitlement, DoTE's legal assessment of the Water Access Entitlement and the Entitlement Owner's ability to transfer the Water Access Entitlement to the Commonwealth. The assessment is performed by a legal provider nominated by the Commonwealth. “Milestone” means a key event that must be achieved in the Proponent's completion of the Approved Project, as specified in Schedule 2. “Milestone Payment” means a payment of Funds made by DNRM, as specified in Schedule 2. “Milestone Table” means the table contained within Schedule 2 detailing the Milestones, the criteria for achievement of the Milestones, any Milestone Payment amount for a Milestone and the dates for completion of each Milestone. “Moral Rights” means the moral right of attribution of authorship, right not to have authorship falsely attributed and right of integrity of authorship conferred by the Copyright Act 1968 (Cth) and rights of a similar nature anywhere in the world whether existing before, on or after the Commencement Date. “Parties” means DNRM, the Proponent and if the Proponent is not the Landholder, that Landholder, and if the Proponent is not the Entitlement Owner, that Entitlement Owner, and “Party” means the Proponent, the Landholder or the Entitlement Owner, as the context requires. “PCBU” means a person conducting a business or undertaking as defined under the Work Health and Safety Act 2011 (Qld). “Personal Information” means information or an opinion (including information or opinion forming part of a database) whether true or not and whether recorded in a material form or not, about an individual whose identity is apparent, or can be reasonably be ascertained, from the information or opinion. “Principal Contractor” must be either the Proponent, or a person appointed by the Proponent, in accordance with the Work Health and Safety Act 2011 (Qld). “Progress Report” means the quarterly report to be provided by the Proponent in accordance with clause 10 and Schedule 3. “Project” means the Healthy Headwaters Water Use Efficiency Project – Round Nine, administered by DNRM.

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“Project Material” means: (a) all material created by or on behalf of the Proponent in connection

with the Approved Project (called “New Project Material”); (b) all material existing at the Commencement Date and incorporated into

the material referred to in paragraph (a) (called “Existing Project Material”); and

(c) copies or derivations of the material referred to in paragraphs (a) and (b).

“Project Officer” means the person appointed by the Proponent as its contact for this Agreement and named at Item 6 of Schedule 1. “Property” means the property whose details are set out in Item 3 of Schedule 1 and identified at Annexure 1, and is where the Construction Site is located. “Proponent” means the person(s) who:

(a) is an irrigator in the Queensland Murray-Darling Basin; and

(b) is either:

(i) the Landholder; or

(ii) the person who has the right to occupy the Property for the purpose of constructing the Works in accordance with this Agreement for the duration of this Agreement ; and

(c) has made a successful application to DNRM to participate in the Project and construct the Works on the Property.

“Proponent’s Contribution” means the: (a) financial and/or in-kind contributions; or (b) the Additional Water Entitlement

to be made by the Proponent in accordance with Item 7 of Schedule 1 and in accordance with the Approved Project in Annexure 2. “Related Entities” has the meaning given in the Supporting Guidelines, which can be downloaded at www.employment.gov.au/building-code-2013. “Reports” means the reports to be provided by the Proponent in accordance with clause 10. “Representative” means any employees, servants or agents of a Party, and in relation to the Proponent, the Landholder and Entitlement Owner, includes it contractors, sub-contractors, suppliers and consultants. Special Conditions means any special conditions specified in Item 13 of Schedule 1. “State” means the State of Queensland. “Supporting Guidelines” means the Supporting Guidelines for Commonwealth Funded Entities. The Supporting Guidelines can be found at www.employment.gov.au/building-code-2013. “Tax Invoice” has the same meaning as in the GST Act. “Term of this Agreement” means the period referred to in clause 2.1.

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“Unspent Funds” means the amount of Funds that DNRM has paid to the Proponent minus the greater of: a) the amount of the first Milestone Payment; or b) the sum of:

(i) the Funds spent, (ii) Funds due and payable; and (iii) Funds legally and irrevocably committed;

by the Proponent in accordance with this Agreement for work done on the Approved Project up to the earlier of the completion of the Approved Project or the termination of this Agreement.

The Proponent's Unspent Funds are to be calculated on the basis that DNRM will not provide more than its Contributing Proportion of the lesser of: c) the Total Cost of the Approved Project specified in Item 7 of Schedule

1; or d) the total monies actually spent, due and payable and legally and

irrevocably committed by the Proponent for the Approved Project in accordance with this Agreement.

“Water Access Entitlement” means the water entitlement specified in Item 10 of Schedule 1, which:

(a) contains the Water Access Entitlement Volume; and (b) must be a Water Access Entitlement within the meaning given in

section 4 of the Water Act 2007 (Cth) that is used for irrigated agricultural production; and

(c) and must be capable of being permanently assigned, on an unencumbered basis, to the Commonwealth by the Entitlement Owner under the Water Entitlement Transfer Deed; and

(d) may include an Additional Water Entitlement “Water Access Entitlement Volume” means the Commonwealth’s share of Agreed Water Savings as set out in Item 10 of Schedule 1, which must be at least 50% of the Agreed Water Savings. “Water Entitlement Transfer Deed” means a contract between the Entitlement Owner and the Commonwealth under which the Entitlement Owner permanently transfers to the Commonwealth the unencumbered Water Access Entitlement and any Additional Water Entitlement. “Water Management Partnership Agreement” means the bilateral agreement between the Commonwealth and the State that provides for the State to undertake one or more projects that will substantially contribute to improved water use efficiency and enhance the sustainability of rural water use in the Murray-Darling Basin, and includes the Project Schedule entitled “On-Farm Water Use Efficiency Project – Phase Two”, as executed by the Commonwealth and the State. “Worker” has the meaning given in the Work Health and Safety Act 2011 (Qld) and includes, but is not limited to, employees, contractors and subcontractors, apprentices, work experience students and volunteers. “Workplace” has the meaning given in the Work Health and Safety Act 2011 (Qld) and includes the Construction Site. “Works” means the on-ground works to be installed by the Proponent at the

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Construction Site in performance of the Approved Project. The reference number for the Works is specified in Schedule 1. “Works Materials” means the equipment and materials to be provided to the Proponent for construction of the Works. 1.2 Interpretation In this Agreement:

(a) unless a contrary intention appears, words importing a gender include any other gender and words in the singular include the plural and vice versa.

(b) unless a contrary intention appears, a reference to: (i) “dollars” or “$” is a reference to the currency of Australia; (ii) any legislation shall include any Act of Parliament and any

subordinate legislation, rule, regulation, order or instrument made under it and shall include any statutory modification, substitution or re-enactment of such legislation;

(iii) an individual or person includes a corporation, partnership, joint venture, trust, association, governments, local government authorities and agencies;

(iv) a clause or schedule is a reference to a clause or schedule to this Agreement; and

(v) a Party to this Agreement includes the executors, administrators, successors and permitted assignees of that Party.

(c) clause headings in this Agreement are for convenience of reference only and have no effect in limiting or extending the language of the provisions to which they refer.

(d) if a word is defined, cognate words and phrases have corresponding definitions.

(e) if a Party to this Agreement consists of more than one person those persons shall be jointly and severally bound under this Agreement.

(f) if under this Agreement, the day on which or by which any act is to be done is a Saturday, Sunday or public holiday in Queensland, the act may be done on the next business day in Queensland.

2. Commencement and Term 2.1 This Agreement will start on the Commencement Date, and unless

terminated earlier in accordance with its terms, continues until the Completion Date.

2.2 Time is of the essence in this Agreement. 3. Legal Due Diligence 3.1 The Entitlement Owner agrees to transfer at least the Commonwealth’s

Proportion of the Water Access Entitlement to the Commonwealth. The

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Commonwealth shall independently undertake Legal Due Diligence in relation to the Entitlement Owner, and the Water Access Entitlement that the Entitlement Owner proposes to transfer to the Commonwealth under the Water Entitlement Transfer Deed. Any special conditions identified during Legal Due Diligence preventing the transfer of the Water Entitlement to the Commonwealth will need to be removed prior to the Legal Due Diligence being satisfied and the signing of the Water Entitlement Transfer Deed.

3.2 The Commonwealth, at its discretion, will determine whether Legal Due Diligence is satisfied. If the Commonwealth gives written notice to DNRM that Legal Due Diligence has not been satisfied, this Agreement will be immediately terminated in accordance with clause 17 and the Commonwealth will not enter into a Water Entitlement Transfer Deed with the Entitlement Owner.

3.3 If the Agreement is terminated in accordance with clause 3.2, no Party will be entitled to compensation to recover any monies paid by that Party in respect of this Agreement, including in relation to the Approved Project or the Water Access Entitlement.

4. Obligations and Responsibilities of the Parties

4.1 Each Party represents and warrants that: -

(a) it has the legal capacity to enter into this Agreement; and b) if it is an employer, it is currently complying with the Workplace

Gender Equality Act 2012 (Cth). 4.2 The Entitlement Owner represents and warrants that it is the registered

legal owner of the Water Access Entitlement, the details of the Water Access Entitlement in Item 10 of Schedule 1 are correct and the Water Access Entitlement will be capable of unencumbered transfer to the Commonwealth at completion of the Water Entitlement Transfer Deed.

4.3 The Proponent represents and warrants that: (a) it will carry out its Approved Project diligently, effectively and in

good faith; (b) installation of the Works will be carried out by the Proponent as

a PCBU, or a Principal Contractor where applicable, and/or any other private contractors engaged by the Proponent;

(c) it is responsible for the costs of any infrastructure required to comply with State licensing requirements or any requirements of their irrigation infrastructure operator;

(d) it is responsible for work place health and safety on the Construction Site in accordance with the Work Health and Safety Act 2011 (Qld);

(e) it will be liable for any and all costs for the Approved Project over and above the Funds amount;

(f) if it is not the Landholder: (i) it has and will maintain a right to occupy the Property ,

for the purpose of constructing the Works in accordance

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with this Agreement, for the duration of this Agreement; and

(ii) it will not do anything to cause that right to occupy to be terminated prior to its completion of the Works.

(g) it: (i) has

(A) previously provided a Compliance Plan and/or Detailed Design and Implementation Plan set out in Item 12 of Schedule 1; or

(B) will provide those plans within 28 days of the execution of this Agreement, or within such other time as requested by DNRM; and

(ii) will provide, if applicable, an amended Compliance Plan and/or Detailed Design and Implementation Plan where the Proponent proposes to change the scope of the Works in accordance with clause 24.1; and

(iii)has obtained all necessary planning, environmental, development, building and regulatory approvals for the commencement of the Works;

(iv) will obtain any further such approvals required for the completion of the Works; and

(v) has confirmed that an Irrigation Professional has provided the necessary Certification.

4.4 Where the Proponent is not the Landholder and the Landholder intends to sell the Property whilst the Works are still in progress, the Landholder must ensure, prior to the sale being effected, that the contract of sale contains the following two preconditions to the sale: (a) that any new purchaser of the Property enters into a binding

deed of novation for this Agreement with: (i) DNRM; (ii) the Proponent; (iii) any separate entitlement owner; and

(iv) the original Landholder; and (b) that the new purchaser (as the new Landholder party to this Agreement) gives the Proponent a right to occupy the Property, on the same terms as the right given to the Proponent by the original Landholder, to allow the Proponent to continue and complete the Works on the Property in accordance with this Agreement for the duration of this Agreement.

The deed of novation must require that the new purchaser, as Landholder, to be bound by the terms and conditions contained in this Agreement as if the new purchaser were the original Landholder party to this Agreement from the date of the Property's settlement onwards.

4.5 Where the Landholder is also the Proponent and the Landholder intends to sell the Property whilst the Works are still in progress, the

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Landholder must ensure, prior to the sale being effected, that the contract of sale contains the following two preconditions to the sale: (a) that any new purchaser of the Property enters into a binding

deed of novation for this Agreement with: (i) DNRM; (ii) the original Landholder/Proponent; and (iii) any separate entitlement owner; and

(b) that the new purchaser, (as the new Landholder party to this Agreement), agrees to continue and complete the Works on the Property in accordance with this Agreement.

The deed of novation must require that the new purchaser, as Landholder, be bound by the terms and conditions contained in this Agreement as if the new purchaser were the original Landholder party to this Agreement from the date of the Property's settlement onwards.

4.6 The Landholder, where the Proponent is not the Landholder, agrees that the Proponent may occupy the Property for the duration of this Agreement for the purpose of completing the Works in accordance with this Agreement and the Landholder agrees not to terminate the Proponent's right to occupy until the Works are completed unless the Proponent has materially breached its right to occupy and the breach has not been rectified by the Proponent.

4.7 The Entitlement Owner acknowledges and agrees that where this Agreement is terminated after settlement of the Water Entitlement Transfer Deed, the Commonwealth’s Proportion of the Water Access Entitlement remains the property of the Commonwealth, in accordance with the terms of the Water Entitlement Transfer Deed.

4.8 The parties acknowledge and agree that the Entitlement Owner’s obligations under this Agreement will cease upon DNRM receiving written notice that settlement of the Water Access Entitlement to the Commonwealth has occurred.

5. Performance of the Approved Project 5.1 The Proponent must undertake the Approved Project, including

meeting any timeframes, Milestones and other requirements, as set out in this Agreement.

5.2 As part of undertaking the Approved Project, the Proponent must provide, where requested: (a) the Bill of Quantities (if applicable); and (b) any amended Compliance Plans and/or Detailed Design and

Implemenation Plan, in Item 12 of Schedule 1; within 28 days of notification by DNRM. In undertaking the Approved Project, the Proponent must exercise the degree of skill and competence reasonably expected of persons performing activities of a similar nature.

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5.3 The Proponent must immediately notify DNRM in writing, including an adequate explanation, where there are any significant delays or difficulties in performing the Approved Project in accordance with this Agreement.

6. Payment and management of the Funds 6.1 The Proponent must use the Funds only for the purposes of the

Approved Project, and in accordance with this Agreement. 6.2 The Entitlement Owner must enter into and complete a Water

Entitlement Transfer Deed with the Commonwealth prior to:

(a) the Proponent's commencement of the Works subject to 6.4; and

(b) the Proponent's receipt of any Funds from DNRM under this Agreement.

6.3 Subject to the terms of this Agreement, DNRM will pay the Funds to the

Proponent in the instalments, and on completion of the Milestones, set out in Schedule 2. DNRM will make the first Milestone Payment to the Proponent after settlement of the Water Entitlement Transfer Deed.

6.4 Despite clause 6.3, where the Proponent commences the Works before

settlement of the Water Entitlement Transfer Deed, the Proponent undertakes the Works at its own risk.

6.5 The Proponent must:

(a) keep a separate record of its receipts and expenditure of the Funds;

(b) do all things necessary to ensure all payments that are made from the Funds are correctly made and properly authorised and adequate control is maintained over the incurring of liabilities;

(c) not pay more than twenty-five percent of any subcontract in advance;

(d) provide documentary evidence of compliance with this clause to

DNRM on request, and maintain honest and accurate records in accordance with Schedule 3;

(e) ensure it immediately terminates its subcontracts where this Agreement is terminated and that those subcontracts only require the Proponent to pay up to the date of termination of the subcontracts.

6.6 If the Proponent uses the Funds other than in conformity with this Agreement: (a) DNRM may, at any time, require the Proponent, by written notice,

to refund the misapplied Funds;

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(b) the Proponent must refund the misapplied Funds and any interest on them (calculated at the commercial overdraft rate of the Commonwealth Bank of Australia applicable at the date of the notice) within seven days of receipt of the notice.

6.7 If the misapplied Funds are not repaid within seven days’ of receipt of the notice provided in clause 6.6, DNRM may: (a) either:

(i) recover the amount from the Proponent as a liquidated debt due to DNRM; or

(ii) set the amount off against any other amount payable by DNRM to the Proponent, under this Agreement; and/or

(b) terminate this Agreement in accordance with clause 17. 6.8 Misapplied Funds will continue to accrue interest until repaid to DNRM

or set off against other amounts payable by DNRM to the Proponent. 7. Deferral of Funds 7.1 In addition to clause 6.2, DNRM’s payment of a Milestone Payment is

conditional on: (a) the Parties, other than DNRM, complying with all of their

respective obligations under this Agreement arising before that Milestone Payment date, including, but not limited to: (i) the Entitlement Owner's completion of a Water Entitlement

Transfer Deed, (ii) the Proponent's achievement of all Milestones; (iii) the Proponent having appropriate insurances and

development approvals in place and the Proponent's provision of any Reports, accompanying invoices and records, and other documents as required under clause 10 prior to the date of the Milestone Payment; and

(b) use of the Funds and the Proponent's Contribution by the Proponent in conformity with this Agreement; and

(c) the Proponent demonstrating that it has spent, or will spend within the next ten days, all Funds previously paid to it under this Agreement, through its completion of preceding Milestones.

7.2 The Proponent must continue carrying out the Works despite any deferral of payment of Funds unless otherwise advised in writing by DNRM. Subject to the other terms of this Agreement, a payment of Funds will only be made as and when, and to the extent that, the Proponent demonstrates that it requires that payment to perform and complete the Approved Project in accordance with the terms of this Agreement.

8. Proponent’s Contribution

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8.1 The Proponent agrees to provide the Proponent’s Contribution in accordance with the Approved Project and Schedule 1.

8.2 Where the Proponent carries out works on the Approved Project as part of the Proponent’s Contribution, the Proponent must maintain a record of those in-kind contributions as specified in Schedule 3.

8.3 Where the Proponent provides an Additional Water Entitlement as a Proponent Contribution, the Proponent will receive the total Approved Project funds.

8.4 The Proponent’s Contribution must be validated in accordance with clause 10.6.

9. Goods and Services Tax 9.1 All monetary amounts referred to in this Agreement exclude GST. If

one Party (the supplier) makes a taxable supply to another Party (the recipient) under this Agreement, on receipt of a Tax Invoice from the supplier, the recipient will pay without setoff an additional amount to the supplier equal to the GST imposed on the supply in question. No Party may claim or retain from another party any amount in relation to a supply made under this Agreement for which the first party can obtain an input tax credit or decreasing adjustment.

9.2 DNRM has no obligation to make any Milestone Payment until the Proponent gives DNRM a Correctly Rendered Tax Invoice for that Milestone Payment.

9.3 In addition, the invoice must specify: (a) the Proponent’s Australian Business Number; and (b) the amount payable by DNRM; (c) the amount of any GST payable by the Proponent on the Funds;

and (d) the date the invoice was generated.

9.4 If it is determined on reasonable grounds the amount paid to the Proponent by DNRM on account of GST under this clause 9 differs from the amount of GST paid or payable by the Proponent, including by reason of: (a) any amendment to the GST Law; (b) the issue of a ruling or advice by the Commissioner of Taxation;

or (c) a refund made under this Agreement; the Proponent must refund to DNRM any overpaid amount or DNRM must pay the Proponent any additional required amount.

9.5 The Parties must exchange all information reasonably necessary for each to make a reasonable assessment of GST payable on the Funds.

9.6 The Proponent warrants:

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(a) it is registered for GST at the Commencement Date and will maintain that registration for the Term of this Agreement; and

(b) its ABN as provided to DNRM is correct. 9.7 The Proponent must immediately notify DNRM if it ceases to be

registered for GST. 9.8 The Proponent must do all things necessary to assist the State to claim

any credit, set-off, rebate or refund in relation to GST paid or payable under this Agreement, including but not limited to the provision of invoices and other documents.

10. Reporting Requirements 10.1 The Proponent must provide Progress Reports to DNRM at the times

and containing the details set out in Schedule 3, and in a format to be provided by DNRM.

10.2 The Proponent must, within 30 days after commissioning of the Works, or the earlier termination of this Agreement, provide a Final Report to DNRM in accordance with all requirements set out under Schedule 3.

10.3 Before receiving the final payment of Funds under this Agreement, the Proponent must submit to DNRM a properly executed statutory declaration containing the information specified in Schedule 3 as part of the Proponent’s Final Report requirements.

10.4 The Proponent must complete the Final Report to DNRM’s satisfaction or DNRM may return it to the Proponent for satisfactory completion within a reasonable timeframe before DNRM will make any final payment of Funds to the Proponent required under this Agreement.

10.5 Where the Proponent makes a claim for an Intermediate Payment, the payment will be subject to receipt of the following:

(a) Intermediate Milestone Payment claim form; (b) financial statement; and

(c) supporting evidence; as specified in Schedule 3.

10.6 The Proponent’s Contribution is to be demonstrated by receipt of the following to DNRM: (a) logbooks, including but not limited to information concerning

dates, equipment used, description of work undertaken, number of persons deployed and hours worked;

(b) a statutory declaration by the Proponent that the Proponent’s Contribution has been made in accordance with the Approved Project; and

(c) financial records.

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10.7 Milestone Payments may be subject to an inspection of the Works to verify achievement of the Milestones at the discretion of DNRM.

11. Additional Information and Access

11.1 During the Term of this Agreement the Proponent (and, if the Proponent is not the Landholder, the Landholder) grants to DNRM and any of its Representatives full access to the Property for the purposes of inspecting the Works.

11.2 DNRM will, when accessing the Property to inspect the Works, comply with all rules, directions and procedures including those relating to security and to workplace health and safety in effect at the Property.

11.3 DNRM or the Commonwealth, acting through its agents or authorised Representatives, may at any reasonable time enter any premises on which DNRM or the Commonwealth reasonably believes copies of documents relating to this Agreement are kept and inspect and copy those documents to satisfy themselves as to the Proponent's performance of the Approved Project and expenditure of the Funds and the Proponent's Contribution.

11.4 The Proponent (and, if the Proponent is not the Landholder, the Landholder) must cooperate with DNRM and the Commonwealth, their agents or authorised Representatives during the inspection.

11.5 The Proponent must provide to DNRM or the Commonwealth on request any additional information about any matter in a document, invoice or receipt, including the Compliance Plan, within 14 days of the request. The Proponent agrees that DNRM may contact third parties to verify information contained in any documents, invoices or receipts.

11.6 The Proponent must provide, upon reasonable notice, to DNRM or the Commonwealth with reasonable access to information and records, for the purposes of data collection and evaluation: (a) during the construction of the Works; and (b) after completion of the Works for a period of seven (7) years from the Completion Date.

12. Indemnity

12.1 The Proponent indemnifies DNRM and the Commonwealth and their

Representatives ("The Indemnified" for the purposes of this clause 12), against all damages, costs, expenses or loss which The Indemnified may incur or sustain in relation to this Agreement and all actions, proceedings, claims and demands whatsoever which may be brought or made against The Indemnified by any person in respect of or by reason of or arising out of: (a) any failure of the Proponent to perform its obligations under this

Agreement;

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(b) any negligent, unlawful or other wrongful act or omission of the Proponent or any person for whose conduct the Proponent is vicariously liable in relation to the performance of the Approved Project

(c) any negligent, unlawful or other wrongful act or omission of the

Proponent’s Representatives that occurs in relation to the Approved Project;

(d) death, injury, loss of or damage to any person; or

(e) construction or use of the Assets by any person;

subject to clause 12.3.

12.2 The Landholder and the Entitlement Owner (each of which is an "Indemnifier") indemnify The Indemnified against all damages, costs, expenses or loss which The Indemnified may incur or sustain in relation to this Agreement and all actions, proceedings, claims and demands whatsoever which may be brought or made against The Indemnified by any person in respect of or by reason of or arising out of any failure by the Indemnifier to perform its obligations under this Agreement, subject to clause 12.3.

12.3 The Proponent’s liability to indemnify The Indemnified under clause

12.1, and an Indemnifier's liability to indemnify The Indemnified under clause 12.2, will be reduced proportionally to the extent that any negligent act or omission or breach of this Agreement by The Indemnified caused The Indemnified's loss or liability.

12.4 The indemnities granted in clause 12.1, and clause 12.2 are in addition to and not exclusive of any other remedies DNRM or the Commonwealth may have at law.

12.5 The Proponent, any separate Landholder, the Entitlement Owner, or

their Representatives, agree not to make any claim against DNRM, the Commonwealth or their Representatives in respect of any liability the Proponent, any separate landholder, the Entitlement Owner or their Representatives may have arising out of any injury suffered by, or death of, the Proponent, any separate Landholder, the Entitlement Owner or their Representatives as a result of the performance of the Works.

13. Insurance 13.1 The Proponent must effect and maintain the following insurances for

the Term of this Agreement:

(a) public liability insurance for $20,000,000.00 arising from any one event in respect of accidental death of or accidental bodily injury

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to persons, or accidental damage to property, arising in connection with the Approved Project;

(b) worker's compensation insurance in accordance with the

Workers Compensation and Rehabilitation Queensland Act 2003 (Qld); and

(c) insurance against any loss or damage to an Asset for its full

reinstatement or replacement cost.

13.2 The Proponent must ensure the above policies cover the acts and omissions of all Principal Contractors, contractors, sub-contractors, employees, licensees and invitees of the Proponent.

13.3 The Proponent must lodge with DNRM:

(a) a copy of the certificate of currency for each insurance policy within 28 days after signing this Agreement; and

(b) evidence of each policy’s renewal before its anniversary.

If the Proponent does not lodge the certificate of currency within 28 days of signing this Agreement, DNRM may terminate this Agreement in accordance with clause 17.1(c).

14. Assignment, Novation and Subcontracting 14.1 A Party (other than DNRM) must not assign, transfer, subcontract or

novate in whole or in part, create any security or interest over, or otherwise deal in any way with its interest in or rights or obligations under this Agreement without DNRM’s Consent.

14.2 Any consent given by DNRM under this clause 14 does not:

(a) relieve that Party of its liabilities and obligations under this Agreement; or

(b) operate as an authority for that Party to transfer responsibility to

any subcontractor. 15. Unspent Funds 15.1 At the completion of the Approved Project or the earlier termination of

this Agreement, the Proponent must account for the whole of the Funds, including any Unspent Funds, and the Proponent's Contribution.

15.2 Within 30 days after the termination of this Agreement or the completion of the Approved Project, the Proponent must provide to DNRM a cheque or transfer for the amount of any Unspent Funds.

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15.3 Any amounts not repaid in accordance with this clause may be recovered as a liquidated debt due to the State.

15.4 Where the Project results in savings of the Total cost of the Approved Project as identified in Item 7 of Schedule 1, the savings will be allocated between the Proponent and DNRM in the Contributing Proportions shown in Item 7 of Schedule 1. DNRM may then reduce the amount of its next Milestone Payment to the Proponent by its Contributing Proportion of any such cost savings.

16. Assets and Liabilities 16.1 The Assets will be owned in accordance with the provision contained

in Item 11 of Schedule 1. 16.2 During the Term of this Agreement, Assets must be used by the

Proponent solely for the purposes of the Approved Project unless otherwise approved in writing by DNRM.

16.3 Assets must be identified in the Approved Project at Annexure 2. 16.4 The Proponent must maintain an Asset Register at all times and when

requested by DNRM, provide copies of the Asset Register to DNRM. 16.5 The sale, disposal or write-off of Assets during the term of this

Agreement must be pre-approved in writing by DNRM and must be included in the Asset Register and any Reports as required by DNRM under this Agreement.

16.6 The Proponent must: (a) use any moneys (including insurance payouts) received by the

Proponent during the Term of this Agreement in relation to the disposal, loss, theft of or damage to any Assets during the Term of this Agreement, only for the purposes of the Approved Project; and

(b) include in its accounts and disclose in all Reports the receipt and expenditure of such monies.

16.7 The Proponent is fully responsible for, and bears all risks of use of, the Assets. The Proponent must maintain all appropriate insurances for the Assets as required under clause 13.1 (c).

16.8 This Agreement does not confer on DNRM any estate or interest in assets acquired by the Proponent other than with the Funds, whether before, during or after the Approved Project.

16.9 All liabilities incurred by the Proponent in connection with the Approved Project, whether using the Funds or not, are liabilities of the Proponent and do not attach to DNRM or the Commonwealth.

17. Termination

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17.1 This Agreement may be immediately terminated:

(a) by DNRM giving written notice to the other Party(s), where the Commonwealth advises DNRM that the Water Access Entitlement has not passed Legal Due Diligence or that the Entitlement Owner has not executed the Water Entitlement Transfer Deed within 30 days (or such longer period as agreed by the Commonwealth) of the Commonwealth issuing it to the Entitlement Owner;

(b) by DNRM giving written notice to the other Party(s), where the

Commonwealth advises DNRM that it has terminated the Water Entitlement Transfer Deed because it was not completed by the completion date specified in the Water Entitlement Transfer Deed;

(c) by DNRM or the Proponent giving notice to another Party where

that other Party has breached a material provision of this Agreement and that other Party has not rectified the breach within 30 days of receiving notice of it to do so, or where the breach is not capable of rectification;

(d) by DNRM at its convenience at any time by written notice to the

other Parties, without the need to give reasons, and with effect from the date stated in the notice;

(e) by DNRM by notice to each other Party if another Party becomes

insolvent, makes an assignment for the benefit of creditors, is the subject of winding-up proceedings whether voluntary or compulsory otherwise than for the purpose of reconstruction and amalgamation or a receiver is appointed to a Party by a court; or

(f) if another clause in this Agreement allows for termination under

this clause 17. 17.2 On termination of this Agreement under clause 17.1(d), DNRM must

provide the Proponent with the amount of Funds (if any) that the Proponent needs to enable it to meet its proportion of the funding specified in Item 7 of Schedule 1.:

(a) spent; (b) legally due and payable; and (c) legally and irrevocably committed; by the Proponent in accordance with this Agreement up to the date the Proponent is deemed to receive the notice of termination under clause 29 (after taking into account any payments already made to the Proponent prior to the date of termination), provided that the Proponent provides written evidence of such costs if required by DNRM and

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provided that the Proponent will not be entitled to any payment in excess of the Funds which would have otherwise been payable under this Agreement. However, termination under clause 17.1(d) does not oblige DNRM to make any payment to the Landholder or Entitlement Owner.

17.3 On termination of this agreement, no further payments will be made by

DNRM to the Proponent except in the circumstances specified in clauses 17.2 and 17.4(a).

17.4 On termination of this Agreement:

(a) where the Water Entitlement Transfer Deed has been completed, and the Proponent has not (after taking any payment that has or will be made to the Proponent under this Agreement into account) received a total amount of Funds that is equal to or greater than the Agreed Market Value of the Water Access Entitlement, DNRM must pay to the Proponent any additional amount of Funds necessary to ensure the Proponent receives a total amount of Funds from DNRM equal to the Agreed Market Value of the Water Access Entitlement;

(b) where the Water Entitlement Transfer Deed has been completed,

the Water Access Entitlement will remain with the Commonwealth; and

(c) the Proponent must cease expenditure of any Funds (other than

any Funds paid to it pursuant to clause 17.2) and must repay any amount of Unspent Funds to DNRM in accordance with clause 15; and

(d) where the Water Entitlement Transfer Deed has not been

completed, the Water Access Entitlement will remain with the Entitlement Owner.

18. Rights and Obligations after Termination 18.1 Except as otherwise expressly provided for in this Agreement,

termination of this Agreement does not:

(a) affect any claim or action one Party has against another regarding any breach of this Agreement occurring before the date of termination or expiration; or

(b) relieve any Party of any obligation under this Agreement

expressed to continue after the expiry or termination of this Agreement.

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18.2 The Proponent must deliver the following to DNRM within 30 days after the date of termination or expiration of this Agreement: (a) a statutory declaration with documents as required under clause

10; (b) any other documents due under this Agreement at the date of

termination; and (c) a cheque or transfer for any Unspent Funds. 19. Clauses to survive termination or expiration 19.1 The following clauses will survive the termination or expiration of this

Agreement:

(a) Obligations and Responsibilities of the Parties (clause 4)

(b) Payment and management of Funds (clauses 6.5(a), 6.5(d), 6.6, 6.7 and 6.8)

(c) GST (clauses 9.4 and 9.8)

(d) Reporting (clause 10)

(e) Additional Information and Access (clause 11)

(f) Indemnity (clause 12)

(g) Insurance (clause 13) (h) Unspent Funds (clause 15) (i) Termination (17.2 and 17.3) (j) Rights and Obligations after Termination or Expiration (clause

18) (k) Confidential Information (clause 20) (l) Intellectual Property (clause 22) (m) Moral Rights (clause 23) (n) Privacy and Personal Information (clause 30) (o) Acknowledgement of Assistance (clause 32)

20. Confidential Information

20.1 A Party in receipt of Confidential Information (“the Receiving Party”)

from another Party (“the Disclosing Party”) must:

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(a) not disclose to any person any Confidential Information of the Disclosing Party without its prior written consent;

(b) not use or attempt to use any Confidential Information in a way that may injure or cause loss either directly or indirectly to the Disclosing Party;

(c) take all reasonably necessary precautions to prevent unauthorised access to Confidential Information; and

(d) take all reasonable steps to ensure its employees, agents, directors, partners, shareholders and contractors comply with the Receiving Party’s obligations under this clause.

20.2 All Confidential Information remains the property of the Disclosing Party. The Receiving Party must return all Confidential Information to the Disclosing Party at the completion of the Approved Project or upon termination of this Agreement.

20.3 The Receiving Party must only use the Confidential Information for the purposes of the Project and must not use it for any other purpose without the prior written consent of the Disclosing Party. Where the Receiving Party is the State, the Receiving Party may disclose the Disclosing Party's Confidential Information relevant to the Project to the Commonwealth.

20.4 The Disclosing Party is entitled (in addition to any entitlement to damages) to an injunction against or other equitable relief from any actual or threatened breach by the Receiving Party of this clause without need to prove any special damage.

20.5 A Party (other than DNRM) must not divulge any information or give any publicity about the nature or progress of the Approved Project except with DNRM’s Consent.

20.6 A Party (other than DNRM) must not publish the awarding of the Funds without DNRM’s Consent.

20.7 DNRM may publicly disclose that it gave the Funds to the Proponent, the amount of the Funds and general details of the Agreement and the Approved Project.

20.8 If DNRM requires, another Party must promptly give, and arrange for its employees, agents, directors, partners, shareholders and contractors to give written undertakings in a form required by DNRM about non-disclosure of Confidential Information.

21. Dispute Resolution

21.1 Subject to clause 21.3, the Parties agree not to commence any legal

proceedings in respect of any dispute arising under this Agreement, which cannot be resolved by discussion, until the procedure provided by clause 21.2 has been utilised.

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21.2 The Parties agree that any dispute arising during the course of this Agreement is to be dealt with as follows: (a) the Party claiming that there is a dispute will send the other

Parties a written notice setting out the nature of the dispute; (b) the Parties will try to resolve the dispute through direct

negotiation by persons who have been given authority to resolve the dispute; and

(c) if the Parties are unable to resolve the dispute within ten days

from referral of the dispute under subclause (b) above, the dispute is to be submitted to mediation or some other alternative dispute resolution procedure agreed by the Parties; and

21.3 A Party may commence legal proceedings only if:

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

(b) there is a submission to mediation or some other form of

alternative dispute resolution procedure, but there is no resolution within 15 days of the submission, or such extended time as the Parties agree in writing before the expiration of the 15 days.

21.4 This clause does not apply if a Party commences legal proceedings for

urgent interlocutory relief. 21.5 Despite the existence of a dispute, the Parties, will (unless requested in

writing not to do so) continue to perform their obligations under this Agreement.

22. Intellectual Property 22.1 Title to and Intellectual Property rights in all New Project Material vests

in the Proponent, or is transferred to the Proponent, upon its creation. 22.2 The Proponent grants and must ensure relevant third parties (including,

if applicable, the Entitlement Owner and Landholder) grant to DNRM and the Commonwealth a royalty free, irrevocable, worldwide, perpetual and non-exclusive licence to use, reproduce, adapt and communicate (including a right to sub-licence) the Project Material (including any Existing Project Material, but excluding DNRM Material) for internal (including policy and program development), research and publicity purposes and other purposes relating to the Approved Project.

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22.3 DNRM grants the Proponent a licence to use DNRM’s Existing Project Material for the Approved Project and any further development of it. The Proponent must not use DNRM’s Existing Project Material to:

(a) manufacture, sell, hire or otherwise exploit a product or process; (b) provide a service; or (c) license a third party (including any separate Landholder or the

Entitlement Owner) to do any of those things, without DNRM’s Consent.

22.4 The Proponent warrants:

(a) it is legally entitled to use any Intellectual Property used by it in connection with the Approved Project; and

(b) the granting of any rights under this Agreement to DNRM or the

Commonwealth will not infringe any ownership rights, including Intellectual Property rights, of any third party (including any separate Landholder or Entitlement Owner).

22.5 The Proponent must indemnify and at all times keep indemnified

DNRM and the Commonwealth against any action, claim, suit, demand or other liability, including to pay compensation, damages, costs or expenses, for infringement of a third party’s (including any separate Landholder's or Entitlement Owner's) Intellectual Property rights in connection with this Agreement, including:

(a) the Proponent carrying out the Approved Project; (b) the Proponent’s (and any separate Landholder's or Entitlement

Owner's) use of Project Material; (c) DNRM’s and the Commonwealth’s use of the Project Material

and in accordance with the rights granted under this clause; and (d) DNRM’s and the Commonwealth’s exercise of the rights granted

under this Agreement. 23. Moral Rights 23.1 The Proponent must observe the Moral Rights of any individuals in the

Project Material as at the time of supply of Project Material to DNRM. 23.2 The Proponent warrants that it has:

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(a) observed the Moral Rights of any individuals in the Project Material, as at the time of supply of the Project Material to DNRM; and

(b) obtained all the consents, permissions and assignments required to enable DNRM or the Commonwealth to do the following acts in full, without cost or impediment to DNRM or the Commonwealth: (i) using, reproducing, adapting or exploiting all or any part

of the Project Material, with or without attribution of authorship;

(ii) supplementing the Project Material with any other

material; or (iii) using the Project Material in a different context to that

originally envisaged.

This clause 23.2 does not apply in any respect of any DNRM Material contained in the Project Material.

23.3 The Proponent must indemnify and all times keep DNRM and the

Commonwealth indemnified against any action, claim, suit, demand or liability (including payment of compensation, damages, costs or expenses) for infringement of any individual’s Moral Rights arising from:

(a) the Proponent’s failure to perform its obligations under this

clause; or (b) DNRM’s and the Commonwealth’s exercise of the rights granted

under this clause. 24. Variation

24.1 This Agreement may only be varied through the written agreement of

all of the Parties. 24.2 Variation to this Agreement may be subject to the prior approval of

DoTE. 25. Governing Law 25.1 This Agreement is governed by and construed in accordance with the

law of Queensland and the Parties hereby submit to the non-exclusive jurisdiction of the courts in Queensland.

26. Entire Agreement

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26.1 To the extent permitted by law, this Agreement constitutes the entire agreement of the Parties about its subject matter and supersedes all Parties’ previous agreements, understandings and negotiations on that subject matter.

27. Severability 27.1 Any clause in this Agreement that is invalid or unenforceable must be

read down to be valid and enforceable. If that is not possible, the clause is deemed to be severed from this Agreement to the extent of the invalidity or unenforceability without affecting the remaining clauses.

28. Inconsistency 28.1 Where any inconsistency exists between the terms and conditions of

funding under the Water Management Partnership Agreement, and this Agreement and the inconsistency is not the result of a variation agreed to under clause 24, the provisions of the documents will take precedence in the following order: (a) Water Management Partnership Agreement; (b) Water Entitlement Transfer Deed; (c) Special Conditions; (d) this Agreement (except the Special Conditions); (e) Approved Project; and (f) any other schedules and/or annexures to this Agreement.

28.2 The Water Management Partnership Agreement may be found at http://www.environment.gov.au/water/publications/action/agreements/pubs/qld-bilateral-agreement.pdf.

28.3 The parties agree to be bound by the Special Conditions. 29. Notices

29.1 Notices under this Agreement must be in writing and may be delivered

by prepaid postage, certified mail, hand, or facsimile transmission to the person specified for a Party in Schedule 1 or other address notified by one Party to the other Parties.

29.2 Notices are deemed to be given: (a) two days after deposit in the mail with postage prepaid; or (b) immediately on delivery by hand; or (c) if sent by facsimile, when the sender’s facsimile system

generates a message confirming that the notice was transmitted in its entirety to the facsimile number of the relevant Party.

29.3 If a notice is hand delivered or sent by facsimile on a day that is not a business day, or is delivered or sent after 5.00pm on a business day, it will be deemed to be given on the next business day at 9.00am.

http://www.environment.gov.au/water/publications/action/agreements/pubs/qld-bilateral-agreement.pdf

http://www.environment.gov.au/water/publications/action/agreements/pubs/qld-bilateral-agreement.pdf

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30. Privacy and Personal Information 30.1 If a Party (other than DNRM) collects or has access to Personal

Information in order to perform the Approved Project, that Party must:

(a) comply with Parts 1 and 3 of Chapter 2 of the Information Privacy Act 2009 (Qld) in relation to the discharge of its obligations under this Agreement, as if the Party was DNRM;

(b) not use Personal Information other than for the purposes of the

performance of the Approved Project, unless required or authorised by law;

(c) not disclose Personal Information without DNRM’s Consent,

unless required or authorised by law;

(d) not transfer Personal Information outside of Australia without DNRM's Consent;

(e) ensure that access to Personal information is restricted to those

of its employees and officers who require access in order to perform their duties;

(f) ensure that its officers and employees do not access, use or

disclose Personal Information other than in the performance of their duties;

(g) ensure that its sub-contractors who have access to Personal

Information comply with obligations the same as those imposed on the Party under this clause;

(h) fully co-operate with DNRM to enable DNRM to respond to

applications for access to, or amendment of a document containing an individual’s Personal Information and to privacy complaints; and

(i) comply with such other privacy and security measures as DNRM

reasonably advises the Party in writing from time to time. 30.2 On request by DNRM, a Party must obtain from its employees, officers

or sub-contractors engaged for the purposes of this Agreement, an executed deed of privacy in a form acceptable to DNRM.

30.3 A Party must immediately notify DNRM on becoming aware of any breach of clause 30.1.

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31. Right to Information and Disclosure 31.1 The Right to Information Act 2009 (RTI Act) provides members of the

public with a legally enforceable right to access documents held by Queensland Government agencies.

31.2 The RTI Act requires that documents must be disclosed on request,

unless the documents are exempt or on balance, disclosure is contrary to the public interest.

31.3 Information relating to this Agreement is potentially subject to

disclosure to third parties. 31.4 If disclosure under the RTI Act, and/or general disclosure of information

provided by a Party (other than DNRM) in connection with this Agreement, would be of substantial concern to that Party, because it would disclose trade secrets, information of commercial value, the purpose or results of research or other information of a confidential nature, this should be indicated to DNRM by that Party. DNRM cannot, however, guarantee that any information provided by a Party, will be protected from disclosure under the RTI Act.

32. Acknowledgement of Assistance 32.1 The Parties agree that acknowledgement will be given to the

Commonwealth and the State for investments made under this Agreement.

32.2 The Commonwealth’s requirements are, as periodically updated, in relation to acknowledgment, announcements, logos or badging on any promotional material, (including but not limited to any publication, article, newsletter, brochure, other literary work, website, sign, poster and other material or literary work produced under the Approved Project) that the DoTE logo be displayed in a prominent place in accordance with guidelines at http://www.dpmc.gov.au/guidelines and that any such material or verbal announcement acknowledge the Commonwealth’s investment in the Approved Project.

32.3 DoTE must approve placement and use of the logo prior to use. 32.4 The State’s requirements, as contained in the Corporate Identity

Manual, in relation to acknowledgment, announcements, logos or badging on any promotional material, including but not limited to any publication, article, newsletter, brochure, other literary work, website, sign, poster and other material or literary work produced under this Agreement and at relevant forums, conferences, functions and events include use of: (a) The text or words “Supported by the Queensland Government

represented by Department of Natural Resources and Mines”; and/or

(b) DNRM’s logo.

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32.5 The Proponent must provide a copy of any public statement or publicity material about the Approved Project, Project Material or Project to DNRM for its approval within a reasonable time before the statement is made or the material is published.

32.6 The communication protocols referred to in this clause 32 may change at any time without notice. It is the Proponent’s responsibility to ensure that they check the DoTE or DNRM websites regularly for any changes and updated information, or contact DNRM directly.

33. Compliance with Laws 33.1 The Proponent (and any Landholder or Entitlement Owner that is not

the Proponent) must comply with the requirements of all Acts of the Parliaments of the Commonwealth and the State of Queensland and with the requirements of all ordinances, regulations, by-laws, orders and proclamations made or issued under any such Act or Ordinance and with the lawful requirements of public, local or other authorities in any way affecting or applicable to this Agreement.

33.2 The Proponent and the Landholder agree to comply with any

legislation, regulations, guidelines or codes of practice relating to animal welfare in force in Queensland.

34. Compliance with Building Code 2013 and Supporting Guidelines

for Commonwealth Funding Entities 34.1 The Proponent agrees to comply with the Code and the Supporting

Guidelines. The documents are available at www.employment.gov.au/building-code-2013.

34.2 Compliance with the Code and Supporting Guidelines shall not relieve

the Proponent from responsibility to perform the Approved Project, or from liability for any defect in the works arising from compliance with the Code or Supporting Guidelines.

34.3 Where a change in this Agreement is proposed and that change would

affect compliance with the Code and Supporting Guidelines, the Proponent must submit a report to the Commonwealth specifying the extent to which the Proponent’s compliance with the Code and Supporting Guidelines will be affected.

34.4 The Proponent must maintain adequate records of the compliance with

the Code and Supporting Guidelines by: (a) the Proponent; (b) its Workers; (c) its consultants; and

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(d) its Related Entities.

34.5 If the Proponent does not comply with the requirements of the Code or

the Supporting Guidelines in the performance of this Agreement such that a sanction is applied by the Minister for Employment and Workplace Relations, 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 Proponent or a related entity in respect of work funded by the Commonwealth or its agencies.

34.6 While acknowledging that value for money is the core principle

underpinning decisions on Government procurement, when assessing tenders, the Proponent may give preference to subcontractors and consultants that have a demonstrated commitment to:

(a) adding and/or retaining trainees and apprentices; (b) increasing the participation of women in all aspects of the

industry; or (c) promoting employment and training opportunities for Indigenous

Australians in regions where significant indigenous populations exist.

34.7 The Proponent must not appoint any contractor, subcontractor or

consultant in relation to the Approved Project where:

(a) the appointment would breach a sanction imposed by the Minister for Employment and Workplace Relations; or

(b) the contractor, subcontractor or consultant has had a judicial

decision against them relating to employee entitlements, not including decisions under appeal, and has not paid the claim.

34.8 The Proponent agrees to require that it and its contractors,

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 Office of the Australian Building and Construction Commissioner, with access to: (a) inspect any work, material, machinery, appliance, article or

facility;

(b) inspect and copy any record relevant to the Approved Project and the Works; and

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(c) interview any person as is necessary to demonstrate its compliance with the Code and Supporting Guidelines.

34.9. Additionally, the Proponent agrees that the Proponent 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 Office of the Australian Building and Construction Commissioner, to produce a specified document within a specified period, in person, by fax or by post.

34.10. For the avoidance of doubt, Clause 34.8 applies in relation to the

Proponent's new privately funded construction work. 34.11 The Proponent must ensure that all of its sub-contractors impose

obligations on sub-contractors equivalent to the obligations under this clause 34.

35. Compliance with Occupational Health and Safety Scheme 35.1 Where the Proponent is the project manager for the Approved Project:

(a) subject to the exclusions specified in the Fair Work (Building Industry-Accreditation Scheme) Regulations 2005, a contract must not be entered into with a builder who will carry out building work as defined in section 5 of the Fair Work (Building Industry) Act 2012 (Cth) (Fair Work Act) (Fair Work Act) if the builder is not accredited under the Australian Government Building and Construction WHS Accreditation Scheme (the Scheme) at the time the contract for building work is entered into; and

(b) Any building contract must require that the builder remains

accredited under the Scheme while carrying out the building work.

35.2 Where the Proponent is a builder for the Approved Project:

(a) Subject to the exclusions specified in the Fair Work (Building Industry - Accreditation Scheme) Regulations 2005, the Proponent must maintain accreditation under the Scheme established by the Fair Work Act while building work (as defined in section 5 of the Fair Work Act) is carried out.

(b) The builder must comply with all conditions of Scheme accreditation.

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36. Conflict of Interest 36.1 The Proponent (and each separate Landholder and Entitlement Owner)

warrants, to the best of its knowledge that at the Commencement Date, it does not and is not likely to have any conflict of interest in the performance of this Agreement.

36.2 The Proponent (and each separate Landholder and Entitlement Owner)

must not, and must take all reasonable measures to ensure its employees, agents and subcontractors do not, engage in any activity or obtain any interest in conflict with carrying out the Approved Project fairly and independently.

36.3 If a conflict or risk of conflict of interest arises, a Party must:

(a) immediately give notice in writing to DNRM, which must include full disclosure of all relevant information about the conflict;

(b) take all steps reasonably required by DNRM to resolve or deal

with the conflict. 36.4 If a Party does not notify DNRM under clause 36.3(a) or is unable or

unwilling to resolve or deal with the conflict as required under clause 36.3(b), DNRM may terminate this Agreement under clause 17.

37. Waiver 37.1 The failure of a Party to enforce any right, remedy or obligation under this Agreement or at law (“rights”) is not a waiver of the rights unless the waiver is in writing and signed by that Party. 37.2 A waiver by a Party of its rights is not a waiver of any other rights or

subsequent breach of this Agreement by another Party. 38. Relationship of the Parties 38.1 The Proponent and any separate Landholder or Entitlement Owner

(including that Party's officers, employees, agents and subcontractors): (a) is not an officer, employee, partner, agent of or joint venturer

with the State or the Commonwealth and must not represent or allow itself to be represented as such;

(b) has no authority or power to and must not purport to bind or make representations on behalf of the State or the Commonwealth;

(c) must not represent to any person that the State or the Commonwealth is a party to the Approved Project other than as a financial contributor or has guaranteed the performance or fulfillment of the objectives of the Approved Project.

38.2 The Proponent and any separate Landholder or Entitlement Owner must make all reasonable efforts to ensure its officers, employees,

35

agents and subcontractors are aware of and comply with the requirements of this clause 38.

38.3 All Works performed by the Proponent, and all employment and other contracts made by the Proponent or any separate Landholder or Entitlement Owner in the course of the Proponent carrying out the Works, are entered into and performed by that Party as principal and not as agent for the State or the Commonwealth.

38.4 The Proponent must: (a) meet those payment obligations to all personnel engaged to

perform the Approved Project up to the earlier of the date of termination or the expiry of this Agreement;

(b) pay all statutory taxes, fees, levies or charges applicable to the engagement of or payments made to such personnel; and

(c) comply with all reasonable requests by DNRM for verification of such payment obligations.

38.5 The Proponent must indemnify and keep DNRM and the Commonwealth indemnified against any obligation to: (a) make payments to the Proponent's personnel engaged on the

Approved Project; and (b) pay any related statutory taxes, fees, levies or charges.

39. Project Management 39.1 DNRM appoints its Contact Officer, and the Proponent appoints its

Project Officer, as its agent for this Agreement. 39.2 Each Party must liaise in the first instance with the respective DNRM

Contact Officer or Project Officer, or any officer appointed by the DNRM Contact Officer or Project Officer.

39.3 The DNRM Contact Officer has authority to receive and sign notices and written communications on behalf of DNRM, and the Project Officer has authority to receive and sign notices and written communications on behalf of the Proponent, the Landholder and the Entitlement Owner, as applicable.

39.4 The Parties agree that their appointed officers may accept any request or direction about Reports or other matters under this Agreement.

Works Agreement for Funding under the QMDB Sustainable Water Use Infrastructure Approved Project of 44

Schedule 1 Works Reference Number: Item 1: Proponent Contact Details Name: Address: Phone: Mobile: Fax: Email: not to be

used for giving notices under clause 29

ACN or ABN: Contact : Item 2: Landholder Contact Details Name: Address: Phone: Mobile: Fax: Email: not to be


ACN or ABN: Contact: Item 3: Property Incorporating Construction Site Lot Plan Title

Reference Owner

Item 4: Completion Date Item 5: DNRM Contact Officer Name: Address: Phone: Mobile: Fax: Email: not to be


Item 6: Project Officer: Name: Address: Phone: Mobile:


Fax: Email: not to be


Item 7: Total cost of the Approved Project (excl GST) $ Funds (excl GST) (Payments to Proponent) $

Proponent’s Contribution (excl GST) $

Additional Water Entitlement: [insert volume and the water allocation number if the Proponent is approved to use water for Proponent input to ensure the information in Schedule 1 Item 10 is clear– delete this note before finalising.]

Contributing Proportions

DNRM's Contributing Proportion: Proponent's Contributing

Proportion:

Agreed Market Value of Water $ per megalitre Nominal Volume Item 8: DNRM Material Item 9: Public Liability Insurance $20,000,000.00 (Twenty million dollars) Item 10: Water Access Entitlement(s) Water Access Entitlement Holder Contact Details Name: Address: Phone: Mobile: Fax: Email: not to be


ACN or ABN: Contact: Water Access Entitlement Details Resource Operations Plan:


Allocation Number: Crown Plan: Nominal Volume: Security: Type: Commonwealth’s Proportion (Water Access Entitlement

Volume to be transferred to Commonwealth) megalitres Nominal Volume Item 11: Assets Item 12: Additional Information (tick if required) ☐ Compliance Plan

☐ Bill of Quantities ☐ Detailed Design and Implementation Plan

Item 13: Special Conditions [Insert Special Conditions]

IMPORTANT: Special Conditions take precedence over the terms of this deed. Legal advice should be sought on any Special Conditions that are inconsistent with the terms of the deed or which are significant (e.g. involve intellectual property, warranties, indemnities or liability). If no Special Conditions insert “NIL”.


Schedule 2

Milestone Table

First

payment Second payment

Third payment

Fourth payment

Final payment

Individual payment amount ($, GST

exclusive) $ $ $ $ $

Expected payment date (month and year)

No MILESTONE*

1 Works agreement signed by all parties

2 Completion of water transfer deed

3

Required working drawings and bills of quantities detailing the project implementation plan submitted to DNRM, and a pre-works inspection completed (physical works may not commence beforehand)

4 Project 40 per cent completed



7

Project 100 per cent completed and final report accepted by DNRM

1. First payment equals value of water 2. Final payment equals 20 per cent of the government funds 3. Detailed project implementation plan [specifies what level of work matches the levels

of completion]


Schedule 3

Reports Three types of report are to be provided to DNRM by the Proponent in the course of the Approved Project:

1. A Progress Report 2. A Intermediate Milestone Payment Claim 3. A Final Report

An explanation of the information requirements and format for each of these reports will be provided by DNRM and the Proponent is to comply with these requirements. A summary of these requirements are as follows: Report Type 1: Progress Report A Progress Report is to be provided to DNRM for each quarter that falls fully or partly within the Term of this Agreement. The due dates for Progress Reports are as follows: Quarter Date report is due to DNRM January – March 7 April April – June 7 July July – September 7 October October - December 7 January The Progress Report requires the following information:

• A financial report containing actual and forecast figures for: o any ‘Task’ and ‘Activity’ - level expenditure; o proceeds from Asset sales; and o any other funding received.

• A milestone progress report including: o whether the Approved Project is on track compared to the agreed

timeline; o an update on Milestones achieved and progress toward outstanding

Milestones; o current and emerging issues affecting the completion of the Approved

Project, including any proposed actions or variations that may be required; and

o any promotional activities relating to the Approved Project undertaken by the Proponent

• Any other information as reasonably requested by DNRM.

Report Type 2: Intermediate Milestone Payment Claim An Intermediate Milestone Payment Claim is made by the Proponent when a milestone (other than the first or final milestone) is completed and payment is sought.


The Intermediate Milestone Payment Claim requires the same information as does a Progress Report, plus the following information:

o receipts or similar evidence for expenditure incurred up to and including the Milestone to which the payment claim refers;

o logbooks and a statutory declaration specifying details as per Clause 10.6; and

o any other information as reasonably requested by DNRM.

Payment of an Intermediate Payment Claim by DNRM is subject to verification by DNRM of progress toward completion of milestones and evidence of expenditure or ‘in-kind’ work. Payment is also subject to payment processing procedures that will be advised by DNRM, including provision by the Proponent of a complying tax invoice.

Report Type 3: Final Report A final Report for the Approved Project is to be provided by the Proponent to DNRM as a condition, and for calculation, of the final Milestone Payment. The Final Report must include:

• a statement by the Proponent that the works identified in Annexure 2 Part C Detailed Water Savings and Costs, have been completed, including whether the Approved Project did or did not meet the Proponent’s expectations.

• a Commissioning Report. • an income and expenditure statement for the entire Approved Project,

including but not limited to: o a statement of Unspent Funds (if any); o identification of cost overruns and or cost savings; and o proceeds from Asset sales.

• evidence of income and expenditure, including of ‘in-kind’ work, including: o a properly executed statutory declaration, stating that the Proponent's

Contribution has been made in accordance with this Agreement; o documentary evidence including all applicable paid invoices, receipts

etc; and o reference to logbooks if applicable.

• any other information as reasonably requested by DNRM. Asset Register (list of Assets acquired as defined in this Agreement, valued $5000 or greater) Asset description

Acquisition Disposal

Date Cost excluding GST ($)

Date Selling price excluding GST ($)


Annexure 1

Insert a drawing showing the location on the Property where the Works are to be constructed.


Annexure 2

Approved Project


Signed as an Agreement Signed on behalf of the State of Queensland as ) represented by the Department of Natural Resources ) and Mines by ) )

)____________________ ) (signature) this _________day of ______________20_ ) in the presence of: ) ) Witness: _____________________________ ) ) ______________________ )____________________ (print name) ) (signature) Proponent Executed by ) in accordance with s127 of the Corporations Act 2001 ) ) this ____________ day of_______________ 20___ ) ) _________________________________________ ) __________________ Name – Sole Director/Director (print name) ) (signature)

) _________________________________________ ) ___________________ Name – Director/Secretary (print name) ) (signature) Landholder Executed by ) in accordance with s127 of the Corporations Act 2001 ) ) this ____________ day of_______________ 20___ ) ) _________________________________________ ) __________________ Name – Sole Director/Director (print name) ) (signature)

) _________________________________________ ) ___________________ Name – Director/Secretary (print name) ) (signature)

Water Entitlement Holder

Executed by ) in accordance with s127 of the Corporations Act 2001 ) ) this ____________ day of_______________ 20___ ) ) _________________________________________ ) __________________ Name – Sole Director/Director (print name) ) (signature)

) _________________________________________ ) ___________________ Name – Director/Secretary (print name) ) (signature)

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