sample piiop rd 3 funding agreement - ms web viewdepartment of the environment “sample”...

“SAMPLE” FUNDING AGREEMENTBETWEEN

COMMONWEALTH OF AUSTRALIAas represented by and acting through the Department of the

Environment ABN 34 190 894 983AND

[INSERT ORGANISATION NAME AND ABN]

in relation to funding for[INSERT DESCRIPTION OF ACTIVITY]

under Round 3 of the Private Irrigation Infrastructure Operators Program in

New South Wales

1Department of the Environment “Sample” Funding Agreement

TABLE OF CONTENTS

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

PURPOSE..................................................................................................................................................4

1. INTERPRETATION OF THIS AGREEMENT.............................................................................5

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

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

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

5. PERFORMANCE OF THE ACTIVITY AND MANAGEMENT OF FUNDING........................7

6. ORGANISATION’S CONTRIBUTIONS AND OTHER CONTRIBUTIONS..........................15

7. ASSETS........................................................................................................................................16

8. WATER ACCESS ENTITLEMENTS AND IRRIGATION RIGHTS........................................18

9. RECORDS AND AUDIT.............................................................................................................19

10. REPORTING................................................................................................................................20

11. TAXES, DUTIES AND GOVERNMENT CHARGES...............................................................22

12. AUSTRALIAN GOVERNMENT MATERIAL..........................................................................23

13. INTELLECTUAL PROPERTY...................................................................................................23

14. CONFIDENTIAL INFORMATION............................................................................................25

15. PROTECTION OF PERSONAL INFORMATION.....................................................................26

16. INDEMNITY................................................................................................................................27

17. INSURANCE................................................................................................................................28

18. CONFLICT OF INTEREST.........................................................................................................29

19. ACCESS TO PREMISES AND RECORDS................................................................................29

20. DELAY AND UNFORESEEN EVENTS....................................................................................31

21. TERMINATION WITH COSTS AND REDUCTION IN SCOPE..............................................32

22. TERMINATION FOR DEFAULT...............................................................................................35

23. SUBCONTRACTING..................................................................................................................37

24. ACKNOWLEDGMENT AND PUBLICITY...............................................................................38

25. WORK HEALTH AND SAFETY................................................................................................39

26. NEGATION OF LEGAL RELATIONSHIP OF EMPLOYMENT, PARTNERSHIP AND AGENCY.................................................................................................................................................40

27. ENTIRE AGREEMENT, VARIATION AND SEVERANCE....................................................40

28. SURVIVING TERMS..................................................................................................................40

29. WAIVER.......................................................................................................................................41

30. ASSIGNMENT AND NOVATION.............................................................................................41

31. CORPORATE GOVERNANCE..................................................................................................41

32. DISPUTE RESOLUTION............................................................................................................42

33. APPLICABLE LAW AND JURISDICTION...............................................................................43

34. LIAISON AND MONITORING..................................................................................................44

35. NOTICES......................................................................................................................................44

Department of the Environment “Sample” Funding Agreement2

36. COMPLIANCE WITH THE BUILDING CODE 2013...............................................................44

37. COMPLIANCE WITH THE AUSTRALIAN GOVERNMENT BUILDING AND CONSTRUCTION OHS ACCREDITATION SCHEME.......................................................................46

38. COMPLIANCE WITH THE WATER MARKET, CHARGE AND TRADING RULES...........47

39. REVIEW.......................................................................................................................................48

40. ANIMAL ETHICS........................................................................................................................48

40A. TRANSFER OF RIGHT, TITLE AND INTEREST IN LAND...................................................48

41. INTERPRETATION.....................................................................................................................49

SCHEDULE.............................................................................................................................................60

ANNEXURE A: CLAUSES THAT MUST BE INCLUDED IN THE ORGANISATION’S CONTRACTS WITH ITS INDIVIDUAL IRRIGATORS.....................................................................83

ANNEXURE B: MILESTONE REPORT...............................................................................................91

ANNEXURE C: EXPENDITURE REPORT..........................................................................................94

ANNEXURE D: MILESTONE AUDIT REPORT.................................................................................97

ANNEXURE E: DISCONNECTION STATEMENT.............................................................................99

ANNEXURE F: ELIGIBLE/INELIGIBLE ON-FARM ACTIVITIES................................................101


PARTIES

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

AND

[INSERT ORGANISATION NAME, ABN and street address] (‘the Organisation’)

PURPOSE

A. The Sustainable Rural Water Use and Infrastructure Program (SRWUIP) is a national programme investing in rural water use, management and efficiency, including improved water knowledge and market reform, and water purchase for the environment. It is the key mechanism to ‘bridge the gap’ to the sustainable diversion limits under the Murray Darling Basin Plan and consists of three main components: irrigation infrastructure projects; water purchase and supply measures.

B. The Private Irrigation Infrastructure Operators Program (‘the Program’) is funded from SRWUIP. The Program has been established to acquire water entitlements that arise as a result of water savings. These water savings are achieved through the implementation of eligible projects to improve the efficiency and productivity of water use and management both off and on farms. The Program is a component of the New South Wales State Priority Project under the July 2008 Intergovernmental Agreement on Murray-Darling Basin Reform.

C. This Agreement provides for the acquisition of permanent Water Access Entitlements by the Commonwealth. The water savings are generated by the Activity undertaken by the Organisation and the Individual Irrigators under the Program and an agreed amount of Water Access Entitlements are to be Assigned to the Commonwealth.

D. Agreed Water Savings which are granted to the Commonwealth under this Agreement will become part of the Commonwealth Environmental Water Holdings to be managed for the purpose of protecting and restoring Australia's environmental assets.

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

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

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

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


purposes the Assignment of the Water Access Entitlements in tranches under the Water Access Entitlement Assignment Contract.

1. INTERPRETATION OF THIS AGREEMENT

1.1 Clause 41 contains:

(a) the definitions used in this Agreement;

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

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

2. TERM OF THIS AGREEMENT

2.1 The Term of this Agreement commences on the Date of this Agreement and, unless terminated earlier, it expires on the Completion Date.

3. OTHER AUSTRALIAN GOVERNMENT FUNDING

3.1 If the Organisation receives any funding from the Commonwealth under an Environmental Arrangement, a breach of that Environmental Arrangement may be regarded by the Department as a breach of this Agreement.

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

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

4. PAYMENT

4.1 Subject to:

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

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

the Commonwealth will provide the Organisation with the Funding at the times and in the manner specified in the Milestone Schedule. The Organisation will hold, administer and release Funds which relate to Individual Irrigators’ Projects in accordance with this Agreement.

4.2 Without limiting its rights, the Commonwealth may withhold or suspend any Funding payment to the Organisation in whole or in part:

(a) until the Organisation has performed, to the Department's satisfaction, the Organisation's obligations (including the completion of a particular Milestone or provision of a particular Report) under this Agreement that are preconditions to that payment of Funds;


(b) that relates to an Individual Irrigator's Project until the Organisation confirms to the Department's satisfaction, that the Individual Irrigator has performed the part of its Project under its contract with the Organisation which is a precondition to receipt of any further Funding; or

(c) in relation to the final payment for each Individual Irrigator, until such time as the Organisation has provided the Department with a Disconnection Statement signed by that Individual Irrigator.

The Organisation acknowledges that actual Funds to be paid to the Organisation will not exceed the total of invoices and receipts for goods and services required to complete the Activity (as evidenced in the Approved Auditor’s reports required in clause 10.2), minus any interest earned on the Funds the Department allows the Organisation to retain as provided for in clause 5.5 (to the extent it has not been previously offset).

4.3 Notwithstanding any withholding or suspension of any payments of Funds under this Agreement, the Organisation must continue to perform its obligations under this Agreement, and ensure that its Individual Irrigators perform their Projects in accordance with their contracts with the Organisation to the extent that the Organisation and its Individual Irrigators have received Funds for the performance of such obligations or Projects, unless the Department agrees otherwise in writing.

4.4 Funds paid to the Organisation by the Commonwealth for Individual Irrigators’ Projects must be held in accordance with this Agreement by the Organisation. The Commonwealth is not required to make any payment of Funds directly to an Individual Irrigator.

4.5 Unless the Commonwealth agrees otherwise in writing, the Organisation:

(a) may only release Funding to an Individual Irrigator who has complied and is complying with its contract with the Organisation;

(b) must not pay any Funding to an Individual Irrigator where the Individual Irrigator has not satisfied any pre-condition to receipt of that Funding under the contract between the Organisation and the Individual Irrigator; and

(c) must not pay any Funding to an Individual Irrigator unless it has received evidence from the Individual Irrigator that the Funding:

(i) will be spent on an Eligible Activity; and

(ii) will not be spent on an Ineligible Activity.

Note: Clause 5.20 explains the requirements that need to be included in the Organisation's contracts with each of its Individual Irrigators.


5. PERFORMANCE OF THE ACTIVITY AND MANAGEMENT OF FUNDING

Performance of Activity

5.1 The Organisation must carry out the Activity, and ensure that its Individual Irrigators carry out their Projects:

(a) in accordance with this Agreement (including the Schedule and Workplans) and the Guidelines;

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

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

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

5.2 The Organisation agrees to comply, and must ensure that an Individual Irrigator complies, with all applicable requirements of the Environment Protection and Biodiversity Conservation Act 1999 in carrying out the Activity, the Project and in completing each Milestone (as the case may be).

5.3 Apart from the obligations on the Commonwealth in relation to a Water Access Entitlement Assignment Contract with the Organisation, including all things necessary to be done to complete a Water Access Entitlement Assignment Contract, the Organisation acknowledges that the Commonwealth has no obligation to perform any aspect of the Activity before or after the Completion Date. The Organisation will provide a separate Assignment of the Water Access Entitlements for each tranche Assigned to the Commonwealth by the Organisation.

5.3A The Organisation must establish a Panel Arrangement through a Competitive Process and provide details to the Department of the Panel Arrangement within 6 months of the Date of this Agreement.

Use and Management of Funds

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

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

(b) an Individual Irrigator does not have the capacity to manage the part of the Funding paid or payable in respect of a Project undertaken by an Individual Irrigator,

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


5.5 The Funding must be spent by the Organisation, and the Organisation must ensure that the Funding is spent by each Individual Irrigator, in accordance with the Budget and only:

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

(b) in the case of an Individual Irrigator – for its Project in accordance with the contract between the Organisation and the Individual Irrigator and only on Eligible Activities; and

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

5.6 The Organisation must:

(a) ensure that the Funds to be expended by the Organisation are held in a separate account (or accounts) to any other account held by the Organisation;

(b) ensure the bank accounts referred to in clause 5.6(a) are:

(i) in the Organisation’s name;

(ii) solely controlled by the Organisation with an authorised deposit-taking institution authorised under the Banking Act 1959 (Cth) to carry on banking business in Australia;

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

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

(v) attract interest;

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

(d) provide written notification to the authorised deposit-taking institution at which the accounts are established that the Funds are funds held for the purposes of the Activity to be performed by the Organisation and the Individual Irrigators and provide a copy of that notification to the Department;

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

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


(g) ensure that at a minimum two signatories, who have the Organisation’s authority to do so in accordance with the Organisation’s rules, are required to operate the account; and

(h) that the Funds are only to be released in accordance with a board approval of the Organisation and in accordance with the Individual Irrigator’s contract with the Organisation.

Records and accounting

5.7 The Organisation must keep financial accounts and Records relating to the Activity and its obligations under this Agreement so as to enable:

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

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

(i) regular reporting at the due date for each Milestone in the form of the Expenditure Report at Annexure C;

(ii) an audit of each Expenditure Report by an Approved Auditor in accordance with Annexure D;

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

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

5.7A The Organisation must also keep financial accounts and records for each Individual Irrigator including clearly identifying payments made from the relevant Organisation account for each Individual Irrigator’s Project. The Organisation must ensure that each Individual Irrigator keeps financial accounts and Records in a manner that enables the Individual Irrigator to satisfy requirements equivalent to those specified in paragraph 5.7 above in relation to the Project that is to be undertaken by the Individual Irrigator.

Application of Funds

5.8 The Organisation must ensure that all payments from the Funds that the Organisation makes to Individual Irrigators, Subcontractors, or third parties are correctly made and properly authorised and that the Organisation maintains proper and diligent control over the incurring of all liabilities to be consistent with the Budget, Panel Arrangement, Competitive Processes and the list of Eligible Activities.

5.9 Except with the Department’s prior written approval, the Organisation must not, and must ensure that an Individual Irrigator does not, use any of the


following as any form of security for the purpose of obtaining or complying with any form of loan, credit, payment or other interest:

(a) the Funds;

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

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

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

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

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

(c) an amount of Funds has not been spent or dealt with in accordance with this Agreement (including in relation to clause 5.22), or the Organisation’s contract with an Individual Irrigator,

then the Commonwealth may, at the Commonwealth’s discretion:

(d) require the Organisation to either:

(i) refund the amount of Funds to the Commonwealth within 20 Business Days of a written notice from the Commonwealth; or

(ii) deal with the Funds as directed in writing by the Commonwealth; or

(e) reduce further payments of Funding to the Organisation under this Agreement by up to that amount of Funds.

5.10A If the Organisation has not:

(a) refunded the Funds within 20 Business Days of a written notice from the Commonwealth; and/or

(b) dealt with the Funds as directed in writing by the Commonwealth,

as is contemplated by subclause 5.10(d), the Commonwealth may:

(c) reduce further payments of Funding to the Organisation by up to that amount as contemplated by clause 5.10(e); and/or

(d) recover the amount from the Organisation as a debt due and payable to the Commonwealth.

5.10B If, upon expiry of the Activity Period, completion of the Activity or any termination of this Agreement, whichever is the earliest, the Organisation’s


Contributions and/or Other Contributions have not been provided in full, the Commonwealth may (without limiting its rights) require the Organisation to refund to the Commonwealth within 20 Business Days of a written notice from the Commonwealth an amount of Funds calculated in accordance with the following formula:

R = OC – AC

Where:

R = The refund amount;

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

OC = The total aggregate amount of Organisation’s Contributions and Other Contributions specified in Item 3 of the Schedule.

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

5.12 If:

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

(b) at the completion of an Individual Irrigator's Project, the Individual Irrigator has Funds,

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

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

5.14 Any amount, including any Interest, owed to the Commonwealth under this clause 5, will, without prejudice to any other rights available to the Commonwealth under this Agreement or at law or in equity, be recoverable by the Commonwealth, at its sole discretion, as a debt due to the Commonwealth by the Organisation without further proof of the debt by the Commonwealth being necessary.

5.15 The Commonwealth is not responsible for the provision of any money or resources in excess of the Funds. The Organisation accepts responsibility for


the provision of any additional funds which may be required to complete the Activity.

Role and Content of the Workplan

5.16 Subclauses 5.17 – 5.18A (inclusive) below apply only where the Milestone Schedule includes a requirement that the Organisation develop and deliver a Workplan to the Department.

5.17 The Organisation acknowledges that preparation of the Workplan is an integral part of the Activity. Where contemplated by the Schedule the Organisation must provide the Department, by the relevant date, with a draft Workplan for the Department’s approval. The Organisation must amend a draft Workplan as reasonably required by the Department having regard to the requirements of this clause 5 and the Schedule.

5.18 Once a draft Workplan is approved it forms part of this Agreement and the Organisation must comply with, and must ensure that its Individual Irrigators comply with, the Workplan. A Workplan must be reviewed and revised by the Organisation at the times and in the manner required by the Schedule.

5.18A The Organisation must ensure that, in addition to any other requirements, a Workplan satisfactorily addresses and provides the following:

(a) Activity management arrangements and documentation;

(b) a confirmation of governance and management structures;

(c) risk management plan and work health and safety management activities;

(d) the Organisation’s communication plan, including communications with the Department; and

(e) Activity timelines and progress monitoring.

Arrangements between the Organisation and its Individual Irrigators

5.19 The Organisation may only release Funding for an Individual Irrigator’s Project if:

(a) the Individual Irrigator:

(i) engages a provider from the Panel Arrangement in respect of carrying out work in relation to the Individual Irrigator's Project; or

(ii) does not engage a provider from the Panel Arrangement in circumstances where the cost/rate associated with the work provided by the provider:

(A) is less than the cost/rate under the Panel Arrangement; or

(B) is higher than the cost/rate under the Panel Arrangement but the Individual Irrigator has provided evidence of a


Competitive Process having been undertaken to engage the provider and the Organisation is satisfied with the Competitive Process;

(b) the Individual Irrigator has the capacity to enter a legally binding contract with the Organisation and has entered into such a contract with the Organisation under which the Individual Irrigator commits to:

(i) undertake the Project;

(ii) permanently disconnect the relevant landholding from the Organisation’s system for the supply of irrigation water;

(iii) cancel (or unconditionally apply to the Organisation to cancel) their Irrigation Right as required by clause 8;

(iv) cancel (or unconditionally apply to the Organisation to cancel) shares in the Organisation relating to the relevant landholding;

(v) making a joint application with the Organisation to the relevant NSW Minister for the exclusion of the relevant landholding from the Organisation’s Area of Operations; and

(vi) those other matters required by this Agreement;

(c) a comprehensive description of the Individual Irrigator's Project including details of the legal name of the Individual Irrigator (or if more than one Individual Irrigator is involved in a Project the name of all Individual Irrigators), the holder of the Irrigation Right, the Eligible Activities covered by the legally binding contract with the Organisation and the Funding to be provided to an Individual Irrigator, is provided to the Department and approved in writing by the Department;

(d) the Funding to be provided to an Individual Irrigator will be expended on Eligible Activities only;

(e) the Individual Irrigator holds the Irrigation Right or if more than one Individual Irrigator is involved in a Project, an Individual Irrigator involved in the Project holds the Irrigation Right;

(f) the Individual Irrigator has provided to the Organisation a valid tax invoice for the relevant part of the Activities for which it is to receive the Funding;

(g) where an Individual Irrigator has spent time performing any part of the Activity, the activity undertaken by the Individual Irrigator is specified in the Individual Irrigator's contract with the Organisation and is costed at a reasonable contractor rate for that activity; and

(h) the preconditions in clause 4.5 and 5.21 have been met.


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

(a) ensure that its contract with Individual Irrigators contains provisions consistent with the requirements specified in Annexure A;

(b) ensure that its contract with Individual Irrigators gives the Commonwealth or the Department (as the case may be) the same rights, or places the Commonwealth in the equivalent position with respect to an Individual Irrigator, as the Commonwealth or the Department has in respect of the Organisation under this Agreement, in relation to:

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

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

(c) effectively manage each contract with an Individual Irrigator and monitor the Individual Irrigator’s compliance with each contract;

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

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

(f) if requested by the Department, provide a copy of the Organisation’s contract with each of its Individual Irrigators to the Department.

5.20A The Organisation must provide the Department with the template agreement which it intends to use with each Individual Irrigator no less than 30 Business Days before it intends to execute any Individual Irrigator contract.

5.20B Without limiting clause 5.20(f) or the Organisation’s other obligations under this Agreement, once the Organisation has entered into a contract with an Individual Irrigator it must provide a copy of the signed signatory page to the Department within 30 Business Days of the date of the contract with the Individual Irrigator, together with details of any material variations to the contract terms from the template provided pursuant to clause 5.20A.

5.20C Nothing in subclause 5.20A or 5.20B limits or otherwise reduces the Organisation's obligations set out in clause 5.20 and this Agreement generally.

5.21 The Organisation must not make any payment of Funds held for an Individual Irrigator’s Project until a Individual Irrigator in that Project has:

(a) entered into a contract with the Organisation that satisfies the requirements of clauses 5.19 and 5.20 above;


(b) cancelled (or unconditionally applied for cancellation of) their Irrigation Right as required by clause 8;

(c) cancelled (or unconditionally applied for cancellation of) shares in the Organisation relating to the relevant landholding as required by clause 8;

(d) jointly applied with the Organisation to the relevant NSW Minister for the exclusion of the relevant landholding from the Organisation’s Area of Operations as required by clause 8; and

(e) in relation to the final payment for each Individual Irrigator, until such time as the Organisation has provided the Department with a Disconnection Statement signed by that Individual Irrigator.

5.22 If the Organisation does not comply with its obligation to cancel Individual Irrigators’ Irrigation Rights, cancel Individual Irrigators’ shares in the Organisation, apply to amend its Area of Operations to exclude Individual Irrigator landholdings and to Assign to the Commonwealth Water Access Entitlements in accordance with requirements as:

(a) set out in the Milestone Schedule; or

(b) otherwise directed by the Department,

the Organisation must repay the corresponding amount of Funds and such amount will be a debt due and payable to the Commonwealth within 20 Business Days of written notice from the Commonwealth.

6. ORGANISATION’S CONTRIBUTIONS AND OTHER CONTRIBUTIONS

6.1 The Organisation must provide the Organisation’s Contributions for the Activity, (as specified in Item 3.1 of the Schedule).

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

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

(b) the Department is satisfied, acting reasonably, with the terms and conditions on which these Other Contributions are to be provided.

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


6.3 The written evidence referred to in subclause 6.2 must be provided to the Department within 20 Business Days of the Date of this Agreement, failing which the Commonwealth may, at its sole discretion, reduce the scope of (and the Funds payable under) this Agreement under clause 21 or terminate this Agreement under clause 22.

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

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

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

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

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

6.6 The Organisation must inform the Department in writing within 10 Business Days of entering into any arrangement (whether contractual or statutory) under which the Organisation or an Individual Irrigator is entitled to receive any additional monetary or in-kind contributions in respect of the Activity that have not previously been identified in writing to the Department. Any such additional contribution that the Organisation or an Individual Irrigator becomes entitled to receive after the Date of this Agreement constitute Other Contributions for the purposes of this Agreement (and the Schedule is deemed to be varied accordingly) on the date on which the Organisation notifies the Department of that contribution under this subclause 6.6, or the date on which the Department otherwise becomes aware of that contribution.

6.7 The Organisation must include any Organisation’s Contributions and/or Other Contributions in the overall Activity Budget.

7. ASSETS

7.1 The Organisation agrees not to use the Funding to create or acquire any Asset (apart from an Asset specified in the Budget in Item 4 of the Schedule) without obtaining the prior written approval of the Commonwealth (which will not be unreasonably withheld). The Commonwealth’s approval may be given subject to any conditions the Commonwealth may impose.

7.2 The Organisation must ensure that Individual Irrigators only use the Funding to create or acquire Assets which have been specified in a contract with an Individual Irrigator and approved by the Commonwealth as specified in clause 7.1.


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

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

(b) by an Individual Irrigator in accordance with a contract between the Organisation and an Individual Irrigator.

7.4 Throughout the Term of this Agreement, the Organisation agrees (and must ensure that its Individual Irrigators agree in each contract with the Organisation):

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

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

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

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

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

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

(g) to maintain an Assets register in the form and containing the details as described in the Schedule and in the case of Individual Irrigators include those details on each relevant Individual Irrigator’s file maintained by the Organisation; and

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

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

7.6 If any Asset is lost, stolen, damaged or destroyed, or not maintained, during the Term of this Agreement, the Organisation must, and must ensure that its Individual Irrigators, reinstate the Asset, including from the proceeds of the insurance and this clause 7 continues to apply to the reinstated Asset. The proportion of any surplus from the proceeds of insurance which reflects the proportion of the acquisition cost of the Asset that was met by the Funds


must be notified to the Department and used and accounted for as Project Generated Income under this Agreement.

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

8. WATER ACCESS ENTITLEMENTS AND IRRIGATION RIGHTS

Organisation’s obligations

8.1 Unless otherwise directed by the Department, the Organisation must:

(a) ensure that each Individual Irrigator holding an Irrigation Right is contractually obliged to:

(i) cancel (or unconditionally apply to cancel) their Irrigation Right at the times and in the volumes set out in Item 14.2 of the Schedule;

(ii) cancel (or unconditionally apply to cancel) their shares in the Organisation relating to the relevant landholding;

(iii) permanently disconnect the relevant landholding from the Organisation’s system for the supply of irrigation water and provide a Disconnection Statement;

(iv) make a joint application with the Organisation to the relevant NSW Minister for the exclusion of the relevant landholding from the Organisation’s Area of Operations,

in accordance with the Schedule and the Milestone Schedule;

(b) cancel each Individual Irrigator’s:

(i) Irrigation Right; and

(ii) shares in the Organisation,

in accordance with the Milestone Schedule;

(c) make a joint application with each Individual Irrigator to the relevant NSW Minister for the exclusion of the relevant landholdings from the Organisation’s Area of Operations and do everything reasonably necessary to effect grant of that application;

(d) ensure that the volume of the cancelled Irrigation Rights are equivalent to the Individual Irrigators’ contribution (in aggregate) towards the Agreed Water Savings set out in the Schedule in item 14.2; and

(e) not re-connect or otherwise supply irrigation water to an Individual Irrigator landholding which has been permanently disconnected and removed from the Organisation’s Area of Operations pursuant to this Agreement.


Water Access Entitlements Assigned by the Organisation

8.2 The Organisation must Assign to the Commonwealth that part of the Organisation’s Water Access Entitlement(s) that is/are in total equivalent to the Agreed Water Savings by the date or dates specified in the Milestone Schedule or by such later date or dates as the Commonwealth may notify to the Organisation.

8.3 The Organisation warrants that it is entitled, or will at the relevant date be entitled, to Assign to the Commonwealth the Agreed Water Savings for the Project by the date or dates specified in the Milestone Schedule or by such later date or dates as the Commonwealth may notify to the Organisation.

General

8.4 The Organisation must bring into existence, sign, execute or otherwise deal with any document which may be necessary or desirable to give effect to this clause 8.

8.5 The Organisation must enter into a Water Access Entitlement Assignment Contract with the Department. If the Organisation does not complete the Water Access Entitlement Assignment Contract within 90 days of the date of that contract with the Department, any Funds provided to the Organisation shall be repaid by the Organisation to the Department in accordance with clause 5.10 or otherwise dealt with by the Organisation as directed in writing by the Department.

8.6 The Department shall bear its own legal costs in relation to the Assignment of the Agreed Water Savings.

8.7 As between the Commonwealth and the Organisation, the Organisation is responsible for the cost of Assigning to the Commonwealth any part of the Water Access Entitlements that is required by this clause 8 or Item 14 of the Schedule and the Organisation may only use the Funds to pay for these costs if Item 14 of the Schedule so permits.

8.8 The parties agree that the value of the Water Access Entitlements that are required to be Assigned to the Commonwealth under this Agreement is the amount specified in Item 14 of the Schedule.

8.9 The Department may require the Organisation to appoint a person to review the Activities to ensure they meet the Agreed Water Savings and any other specifications or outcomes set out in this Agreement.

8.10 The person who may be appointed to review the Activities pursuant to clause 8.9 must hold relevant qualifications and be agreed to by the Department.

9. RECORDS AND AUDIT

9.1 The Organisation must keep full and accurate accounts and Records of:

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


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

(c) the acquisition of Assets;

(d) the Agreed Water Savings and the progress of those matters contemplated by clause 8 (including cancellation of Individual Irrigators’ Irrigation Rights), and Assignment of the Agreed Water Savings;

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

(f) a file for each Individual Irrigator, which must include:

(i) the Individual Irrigator’s contract with the Organisation;

(ii) the Individual Irrigator’s Project details;

(iii) details of those matters contemplated by clause 8 (including the Individual Irrigator’s Irrigation Right and its cancellation);

(iv) all invoices, receipts and Individual Irrigator financial accounts and records relating to the Individual Irrigator’s Project;

(v) all board approvals relating to the release of Funds to the Individual Irrigator; and

(vi) all correspondence and documents relating to the Individual Irrigator’s Project.

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

9.3 In addition to any other requirement in relation to the retention of records and reporting, the Organisation acknowledges that the Department may, at its discretion, conduct an independent audit of the finances of the Organisation, an Individual Irrigator and any Subcontractor(s) for purposes associated with this Agreement or any review of performance under this Agreement. The Organisation must ensure that its contractual arrangements with Individual Irrigators and Subcontractors reflect the requirements of this clause 9.

10. REPORTING

10.1 The Organisation agrees to provide the Department with written reports at the times and containing the information, specified in Item 5 of the Schedule.

10.2 As part of the final Milestone or on termination of this Agreement (whichever is the earliest), the Organisation agrees to provide the Department with:

(a) audited financial statements prepared by an Approved Auditor of its income and expenditure in respect of the Funding, including audited financial statements of the income and expenditure in respect of the


Funds for Individual Irrigators’ Projects, Organisation’s Contributions (if any), Other Contributions (if any), and Project Generated Income that include:

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

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

(iii) a detailed breakdown of expenditure of Funds (in accordance with any template provided by the Department, including Annexure C) in each Financial Year in relation to each item of expenditure specified in the Budget;

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

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

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

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

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

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

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

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

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


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

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

10.4 The financial statements referred to in subclause 10.2 will be prepared by a Qualified Accountant in accordance with the Australian Accounting Standards.

10.5 The Organisation is responsible for:

(a) maintaining bank accounts;

(b) consolidating its financial statements where relevant;

(c) arranging for the auditing of bank accounts by an Approved Auditor;

(d) arranging for the Organisation’s consolidated statements to be audited by an Approved Auditor; and

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

11. TAXES, DUTIES AND GOVERNMENT CHARGES

11.1 Subject to this clause 11 as between the Commonwealth and the Organisation, all taxes, duties and government charges imposed or levied in Australia or overseas in connection with this Agreement must be borne by the Organisation.

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

(a) not provide Funds to an Individual Irrigator unless the Individual Irrigator has an ABN;

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

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

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

11.3 Any consideration for the transfer of Water Access Entitlements under this Agreement is GST free.

11.4 Any Milestone payment, to the extent that it is not consideration for the transfer of Water Access Entitlements will attract GST and the Department will pay an additional amount equal to the GST imposed on such amounts.


11.5 If one Party (the supplier) makes a taxable supply to the other Party (the recipient) under this Agreement, on receipt of a tax invoice from the supplier, the recipient will pay without set off an additional amount to the supplier equal to the GST imposed on the supply in question.

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

12. AUSTRALIAN GOVERNMENT MATERIAL

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

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

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

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

13. INTELLECTUAL PROPERTY

13.1 Subject to this clause 13, as between the Commonwealth and the Organisation (but without affecting the position between the Organisation and a third party) Intellectual Property Rights in Activity Material vest immediately in the Organisation.

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


13.3 This clause 13 does not affect the ownership of any Intellectual Property Rights in any Existing Material, which is specified in the Schedule. The Organisation, however, grants to the Commonwealth or must arrange for the grant to the Commonwealth of a permanent, irrevocable, free, world-wide, non-exclusive licence (including a right of sub-licence) to use, reproduce, adapt and exploit the Intellectual Property Rights in Existing Material for the purposes of reporting on, evaluating, monitoring, communicating and publicising (but not commercialising) the Activity.

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

13.5 The Organisation:

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

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

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

(d) must ensure that each Subcontractor and Individual Irrigator complies with the requirements of this clause 13.5.

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

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

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

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

but does not include false attribution of authorship.

13.7 The Organisation agrees:

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


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

13.8 This clause 13 does not apply to any Australian Government Material incorporated in the Activity Material.

14. CONFIDENTIAL INFORMATION

14.1 Subject to clause 14.5, a Party must not, without the prior written consent of the other Party, use or disclose any Confidential Information of the other Party.

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

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

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

(b) the other Party’s Advisers; or

(c) any person with a Third Party Interest,

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

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

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

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

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

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

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

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

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

(g) is disclosed by a Party and is information in a material form in respect of which an interest, whether by licence or otherwise, in the Intellectual Property Rights in relation to that material form, has vested in, or is assigned to, the disclosing Party under this Agreement


or otherwise, and that disclosure is permitted by that licence or otherwise;

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

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

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

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

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

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

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

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

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

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

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

15. PROTECTION OF PERSONAL INFORMATION

15.1 This clause 15 applies only where the Organisation deals with Personal Information when, and for the purpose of, conducting the Activity under this Agreement.



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

(b) not to do any act or engage in any practice that would breach an Australian Privacy Principle under the Privacy Act;

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

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

(e) to comply with any directions, guidelines, determinations or recommendations of the Privacy Commissioner to the extent that they are not inconsistent with the requirements of this clause 15; and

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

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

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

16. INDEMNITY

16.1 The Organisation indemnifies (and keeps indemnified) the Commonwealth against any:

(a) loss or liability incurred by the Commonwealth;

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

(c) loss or expense incurred by the Commonwealth in dealing with any claim against the Commonwealth (whether or not successful),


including legal costs and expenses on a solicitor/own client basis and the cost of time spent, resources used, or disbursements paid by the Commonwealth;

arising from:

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

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

(f) the use of the Assets by the Organisation or an Individual Irrigator; or

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

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

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

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

17. INSURANCE

17.1 The Organisation must, for as long as any obligations remain in connection with this Agreement, have the insurance specified in the Schedule in respect of the Activity including the Individual Irrigators' Projects. The Organisation must ensure that each of its Individual Irrigators has the insurance specified in the Schedule in respect of an Individual Irrigator’s Project.

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


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

18. CONFLICT OF INTEREST

18.1 The Organisation warrants that, to the best of its knowledge after making diligent inquiry, at the Date of this Agreement no Conflict exists or is likely to arise in the performance of the Organisation’s obligations under this Agreement or an Individual Irrigator’s performance of its Project under its contract with the Organisation.

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

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

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

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

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

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

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

(b) where the Conflict involves an Individual Irrigator - reduce the scope of this Agreement under clause 21.7.

19. ACCESS TO PREMISES AND RECORDS

19.1 The Organisation must give the Auditor-General, the Ombudsman, the Information Commissioner, the Privacy Commissioner, the Freedom of Information Commissioner or their delegates and persons authorised by the Commonwealth (referred to in this clause 19 collectively as ‘those permitted’) access to premises at which Records and Material associated with this Agreement are stored or work under the Activity is undertaken at all reasonable times and allow those permitted to inspect and copy Records and Material, in the Organisation’s possession or control, for purposes associated with this Agreement or any review of performance under this Agreement. The Organisation must also give those permitted access to any Assets,


wherever they may be located, and reasonable access to the Organisation’s employees, for the same purposes.

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

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

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

19.3 The rights referred to in subclause 19.1 and 19.6 are subject to:

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

(b) the Organisation’s reasonable security procedures; and

(c) the Organisation’s right to maintain legal professional privilege over privileged materials.

19.4 The requirement for access as specified in subclause 19.1 and 19.6 does not in any way reduce the Organisation’s responsibility to perform the Organisation’s obligations in accordance with this Agreement.

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

19.6 In addition to any other obligation under this Agreement, the Organisation must give persons authorised by the Commonwealth access to, or arrange for access to be given to, locations where the Organisation or an Individual Irrigator will undertake, is undertaking or has undertaken the Activity. This access is to be arranged by and supervised by the Organisation. The Department may, at its absolute discretion, exercise rights under this clause for any reasonable purpose including to ascertain whether:

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

(b) the Organisation and/ or the Individual Irrigator is completing the Activity and/ or the Project (as the case may be) in accordance with the requirements of this Agreement (including any requirements in the Schedule or a Workplan),

but any such inspection or review by the Commonwealth under this clause will not place any obligation on the Commonwealth or otherwise diminish the Organisation’s or the Individual Irrigator’s responsibilities for complying with those requirements under this Agreement or at law.


20. DELAY AND UNFORESEEN EVENTS

20.1 The Organisation must take all reasonable steps to minimise delay in completion of the Activity and ensure that its Individual Irrigators take all reasonable steps to minimise delay in their completion of their Projects.

20.2 If the Organisation becomes aware that it or an Individual Irrigator:

(a) will be delayed; or

(b) is reasonably likely to be delayed,

in progressing or completing:

(c) the Activity in accordance with this Agreement; or

(d) a Project,

(as the case may be), the Organisation must immediately notify the Department in writing of the cause and nature and likely extent of the delay (including whether the delay is directly caused by a Force Majeure Event). The Organisation is to detail in the notice the steps it and/or its Individual Irrigators will take to minimise the duration of the delay.

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

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

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

(c) if the Organisation's notice indicates that the Organisation will not be able to complete the Activities by 30 March 2019, terminate this Agreement under clause 22 or take such other steps as are available under this Agreement.

20.4 The parties acknowledge that where delay is directly caused by a Force Majeure Event, the Department will, except in those circumstances contemplated by clause 20.3(c) above, exercise its discretion to offer an extension of time and to vary the Agreement accordingly.

20.5 Except to the extent that the Department takes action under subclause 20.3, the Organisation is required to comply, and must ensure that its Individual Irrigators comply, with the time frame for progressing and completing the Activity as set out in this Agreement.

20.6 If the Organisation is aware that the Activity, or any part of the Activity, will be delayed and does not notify the Department of any delay in progressing or completing the Activity (or a Project) in accordance with subclause 20.2, the


Department may, at its sole discretion, terminate this Agreement under clause 22.

20.7 The parties acknowledge that nothing in this clause obliges the Department to pay any amount of Funding until such time as the corresponding Milestone has been completed satisfactorily.

20.8 A ‘Force Majeure Event’ for the purpose of this clause is an event which is beyond the reasonable control of the Organisation (other than a lack of Organisations’ Contributions or Other Contributions for any reason or any strike, lockout or labour disputes in respect of the Organisation only), including but not limited to acts of God, natural disasters, acts of war, riots and strikes outside of the Organisation.

21. TERMINATION WITH COSTS AND REDUCTION IN SCOPE

21.1 The Department may, at any time by written notice to the Organisation, terminate this Agreement or reduce the scope of this Agreement without prejudice to the rights, liabilities, or obligations of either Party accruing prior to the date of termination. If this Agreement is terminated or reduced in scope the Commonwealth will only be liable for:

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

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

21.1A The Commonwealth may, at any time by written notice to the Organisation prohibit the Organisation to release Funds to an Individual Irrigator. When the Organisation receives such notice it must immediately comply with the notice.

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

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

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

(c) within 20 Business Days, return to the Commonwealth any Funds in accordance with paragraph 21.3(b) or clause 21.4 or otherwise deal with any such Funds as the Department may direct in writing; and

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


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

(a) will not be obliged to pay to the Organisation any outstanding amount of the Funds except to the extent that those monies have been legally and irrevocably committed for expenditure by the Organisation in accordance with this Agreement (or an Individual Irrigator in accordance with its contract with the Organisation) and are payable as a current liability (written evidence of which will be required) by the date on which the notice of termination given under subclause 21.1 is deemed to be received in accordance with subclause 35.2; and

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

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

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

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

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

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

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

(i) have not been legally and irrevocably committed for expenditure by the Organisation in accordance with this Agreement (or an Individual Irrigator for its Project in accordance with its contract with the Organisation) as a current liability (written evidence of which will be required)


by the date on which the notice of the reduction in scope given under subclause 21.1 is deemed to be received in accordance with subclause 35.2; or

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

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

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

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

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

(d) the Organisation agreeing that the Commonwealth is not required to return to the Organisation any Water Access Entitlements which have been Assigned to the Commonwealth under this Agreement.

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

21.7 Notwithstanding anything else in this Agreement, if an Individual Irrigator has breached its contract with the Organisation, the Commonwealth:

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

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

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


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

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

by the date determined pursuant to clause 22.3 but excluding an amount of Funds equivalent to the agreed value of the Water Access Entitlements Assigned to the Commonwealth under this Agreement (to be calculated proportionately having regard to the extent to which the value is directly attributable to the Irrigation Right cancelled by the defaulting Individual Irrigator); and

(d) reduce the scope of the Agreement to remove the Individual Irrigator and its Project from the Activity and reduce the Funding accordingly,

without any compensation being payable under this Agreement.

22. TERMINATION FOR DEFAULT

22.1 If:

(a) the Organisation fails to fulfil, or is in breach of, any of its obligations under this Agreement and does not:

(i) rectify the failure or breach; or

(ii) provide a satisfactory written response to the Department addressing such failure or breach,

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

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

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

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

(e) the Organisation ceases to carry on business;

(f) the Department is reasonably satisfied at any time that any statement made in the Organisation’s application for Funding is incorrect,


incomplete, false or misleading in a way which would have affected the original decision to approve the Funding;

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

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

(i) the Organisation breaches an Environmental Arrangement;

(j) the Department is not reasonably satisfied that the purposes and activities of the Organisation remain compatible with the Program or Activity, which includes, without limitation, any organisational restructure of the Organisation that adversely affects the Organisation's eligibility to receive the Funding or comply with its obligations under this Agreement, as set out in clause 31.1;

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

(l) the Organisation repeatedly fails to undertake the Activities in accordance with the Schedule and any Workplan and for the purpose of this subclause a 'repeated failure' is not intended to be limited to a failure in respect of one activity (or part thereof), but will apply in relation to failures in respect of one or more activities (or parts thereof);

(m) the Organisation is delayed and has provided the Department with a notice pursuant to clause 20.3(c); or

(n) the Commonwealth acting reasonably considers that:

(i) more than one Individual Irrigator is unable to perform its Project and/or has breached its obligations in its contract with the Organisation; or

(ii) the Organisation has breached its obligations under the Water Access Entitlement Assignment Contract with the Commonwealth; and

(iii) the Organisation does not provide a satisfactory written response to the Department addressing the matter within 20 Business Days of receiving a notice in writing from the Department to do so,

then, the Commonwealth may immediately terminate this Agreement by giving written notice to the Organisation of the termination.

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


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

(b) will be entitled to recover from the Organisation as a debt due and payable any part of the Funds which:

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

(ii) has not, in the Commonwealth’s opinion, been expended by the Organisation in accordance with the terms and conditions of this Agreement (or an Individual Irrigator for its Project in accordance with the terms and conditions of its contract with the Organisation),

(c) excluding an amount of Funds equivalent to the agreed value of the Water Access Entitlements Assigned to the Commonwealth under this Agreement (to be calculated proportionately to the values set out in Item 14.1 of the Schedule).

22.3 If the Organisation does not repay to the Commonwealth the amount referred to in clause 21.7 or paragraph 22.2(b) within 10 Business Days of receipt of the notice provided under 21.7 or 22.1 (or if a different period is stated in the notice, that period) the Organisation must also pay the Commonwealth Interest on the outstanding amount.

22.4 Subclause 22.2 and 22.3 survive termination of this Agreement and do not limit or exclude any of the Commonwealth’s other rights, including the right to recover any other amounts from the Organisation arising from termination of this Agreement.

23. SUBCONTRACTING

23.1 The Organisation must not, without the Department’s prior written approval, subcontract the performance of any management obligations of the Organisation under this Agreement. In giving written approval, the Department may impose such terms and conditions as the Department thinks


fit. The Department's approval of a Subcontractor may be specified in the Schedule or a Workplan.

23.2 The Organisation is fully responsible for the performance of all of its board obligations under this Agreement and the obligations of the board cannot be subcontracted. The Organisation retains the management obligations under this Agreement even though the Organisation may have subcontracted the relevant work.

23.3 Despite any approval given by the Department under subclause 23.1, the Organisation is responsible for:

(a) ensuring the suitability of a Subcontractor to manage the work proposed to be carried out;

(b) ensuring that such work meets the requirements of this Agreement; and

(c) conducting its procurement processes for the procurement of goods and services (including Subcontractors and Assets) in accordance with a Competitive Process.

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

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

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

23.5 The Organisation must not enter into a subcontract under this Agreement with a Subcontractor that is currently named as an employer not complying with the Workplace Gender Equaltiy Act 2012.

23.6 The Organisation or Individual Irrigator must subcontract any Specified Subcontract Work to the Specified Subcontractors.

24. ACKNOWLEDGMENT AND PUBLICITY

24.1 The Organisation must obtain the Department’s written approval for each public announcement, or publication issued by, the Organisation or an Individual Irrigator that relates to the Activity, the Funding or this Agreement prior to the making of that announcement or issuing of that publication. In all publications, promotional and advertising materials, public announcements and public activities the Organisation must, and must ensure that its Individual Irrigators, acknowledge the financial and other support provided by the Commonwealth for the Activity, in the form and containing the information which must be approved by the Department prior to the issuing of the publication, material, announcement or undertaking of the public activity.


24.2 The Department reserves the right to publicise and report on the awarding of Funding for the Activity. The Department may do this by including in media releases, general announcements about the Funding and in annual reports the Organisation’s name, and its Individual Irrigators’ names, the amount of the Funds provided to the Organisation and the title and a brief description of the Activity and Project(s). The Department will obtain the Organisation’s prior written consent to any publication and reporting on:

(a) the amount of Funding provided to a particular Individual Irrigator; and

(b) any Irrigation Right that a particular Individual Irrigator is required to cancel pursuant to this Agreement.

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

25. WORK HEALTH AND SAFETY

25.1 The Organisation must in carrying out its obligations under this Agreement, comply and use reasonable endeavours to ensure that its Subcontractors and Individual Irrigators comply, with the provisions of all relevant statutes, regulations, by-laws and requirements of any Commonwealth, State, Territory or local authority including those arising under a WHS Law in respect of workplace health and safety.

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

25.3 If the Organisation or the Individual Irrigator is required by the WHS Act to report a Notifiable Incident to the Regulator arising out of the Activities:

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

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

25.4 The Organisation must inform the Department of the full details of:

(a) any suspected contravention of the WHS Laws relating to the Activities, within 24 hours of becoming aware of any such suspected contravention;


(b) any cessation or direction to cease work relating to any Activities, due to unsafe work, immediately upon the Organisation being informed of any such cessation or direction;

(c) any workplace entry by a WHS Entry Permit Holder, or an Inspector, to any place where the Activities are being performed or undertaken, within 24 hours of becoming aware of any such workplace entry; and

(d) any proceedings against the Organisation or the Individual Irrigator or its officers, or any decision or request by the Regulator given to the Organisation or the Individual Irrigator or its officers, under a WHS Law, within 24 hours of becoming aware of any such proceedings, decision or request.

25.5 The organisation agrees, when using the Department’s premises or facilities, to comply with all reasonable directions and procedures relating to workplace health, safety and security in effect at those premises or in regard to those facilities, as notified by the Department or as might reasonably be inferred from the use to which the premises or facilities are being put.

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

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

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

27. ENTIRE AGREEMENT, VARIATION AND SEVERANCE

27.1 This Agreement records the entire agreement between the Parties in relation to its subject matter.

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

27.3 Part or all of any provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions of this Agreement continue in force.

28. SURVIVING TERMS

28.1 Clauses 5, 7 to 17 inclusive, 32 and 39 survive the Term of this Agreement.


28.2 The obligations in clauses 9, 19 and 24 survive the Term of this Agreement for 7 years.

29. WAIVER

29.1 If either Party does not exercise (or delays in exercising) any of its rights, that failure or delay does not operate as a waiver of those rights.

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

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

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

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

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

30. ASSIGNMENT AND NOVATION

30.1 The Organisation must not assign its rights under this Agreement, and must ensure that an Individual Irrigator does not assign its rights under its contract with the Organisation, without prior written approval from the Department.

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

31. CORPORATE GOVERNANCE

31.1 The Organisation must inform the Department whenever there is a change in its Constitution, structure, management or operations which could reasonably be expected to affect its eligibility for the Funding or have an adverse effect on the Organisation’s ability to comply with its obligations under this Agreement.

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

(a) the person is an undischarged bankrupt;

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

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

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


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

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

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

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

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

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

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

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

32. DISPUTE RESOLUTION

32.1 Subject to subclause 32.3, both Parties agree not to commence any legal proceedings in respect of any dispute arising under this Agreement, which cannot be resolved by informal discussion, until the procedure provided by this clause has been utilised.

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

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


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

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

(d) if:

(i) there is no resolution of the dispute;

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

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

then, either Party may commence legal proceedings.

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

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

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

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

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

32.5 The Organisation must ensure that each contract with an Individual Irrigator includes a dispute resolution clause that contains a dispute resolution process for use as between the Organisation and the Individual Irrigator that is substantially the same as the dispute resolution process between the Organisation and the Commonwealth outlined in this clause 32.

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

33. APPLICABLE LAW AND JURISDICTION

33.1 The laws of the state of New South Wales apply to this Agreement.

33.2 Both Parties agree to submit to the non-exclusive jurisdiction of the courts of the state of New South Wales in respect to any dispute under this Agreement.


34. LIAISON AND MONITORING


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

(b) comply with all the Department's(or any persons authorised by the Department’s) reasonable requests, directions, or monitoring requirements.

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

35. NOTICES

35.1 A Party giving notice or notifying under this Agreement must do so in writing or by electronic mail or facsimile transmission:

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

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

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

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

(a) if hand delivered, on delivery;

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

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

36. COMPLIANCE WITH THE BUILDING CODE 2013

36.1 In this clause 36:

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

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

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


36.2 Application of this clause 36:

(a) Where the Funding for the Activity specifically relates to building and construction activity, subject to the thresholds specified in the Building Code, the Organisation must comply with, and ensure that Project Parties comply with the Building Code.

(b) The Building Code requires the Organisation to ensure that:

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

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

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

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

(ii) inspect and copy any record relevant to the Activity and works governed by this Agreement; and

(iii) interview any person,

as is necessary to monitor compliance with the Building Code.

(d) Additionally, the Organisation undertakes that it, and each of the Project Parties will agree to a request from the Commonwealth, including a person occupying a position in the Fair Work Building Industry Inspectorate, to produce a specified document within a specified period, in person, by fax or by post.

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

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


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

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

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

(g) The Organisation must not appoint a contractor, Subcontractor or consultant in relation to the Activity where:

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

(ii) 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.

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

37.1 In this clause 37:

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

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

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

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

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

37.2 Application of this clause 37:

(a) Subject to the exclusions specified in the Regulations, construction projects that utilise funds provided under this Agreement are bound by the application of the Scheme.

(b) The Organisation must ensure that all head contracts it enters into, and all contracts that Project Parties enter into, for Building Work as a part of the Activity that are valued at $3 million or more:

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

(ii) contain a requirement that the Builder:

(A) is accredited under the Scheme;

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


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

(c) The Organisation agrees to notify the Department immediately if that Builder has ceased, or is likely to cease, to meet the accreditation requirements in paragraph 37.2(b)(ii).

(d) The Organisation must maintain adequate records of compliance by it, and each of the Project Parties, with the Scheme.

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

38.1 In this clause:

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

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

(c) ‘the termination fee rules’ means the Water Charge (Termination Fee) Rules 2009 made under Section 92 of the Water Act as varied from time to time;

(d) ‘the water infrastructure charge rules’ means the Water Charge (Infrastructure) Rules 2009 made under Section 92 of the Water Act as varied from time to time;

(e) ‘the water trading rules’ means the water trading rules referenced in Section 22 and Section 26 of the Water Act which form part of the Basin Plan.

38.2 The Organisation must comply with the water market rules, the termination fee rules, the water infrastructure charge rules and the water trading rules to the extent that the rules apply to the Organisation.

38.3 This subclause applies to the Organisation to the extent that the water market rules, the termination fee rules, the water infrastructure charge rules and the water trading rules do not otherwise apply to the Organisation. If this subclause 38.3 applies, the Organisation must take all reasonable steps to act as though the water market rules, the termination fee rules, the water infrastructure charge rules and the water trading rules applied to it.

38.4 This subclause applies to the Organisation to the extent to which it operates a joint water supply scheme under which the members of the scheme jointly hold a Water Access Entitlement. If this subclause 38.4 applies, the Organisation must take all reasonable steps to apply the water market rules, the termination fee rules, the water infrastructure charge rules and the water trading rules as though the Organisation is an irrigation infrastructure operator and a person who has an entitlement to water under the co-held Water Access Entitlement has an irrigation right against the Organisation.


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

(a) in the form and manner; and

(b) at the times,

specified by the Department.

39. REVIEW

39.1 The Organisation agrees to provide, and ensure its Individual Irrigators provide, all reasonable assistance required by the Commonwealth in relation to conducting a review and final evaluation of the Program.

40. ANIMAL ETHICS

40.1 The Organisation agrees to comply, and ensure that each Individual Irrigator complies, with any legislation, regulations, guidelines and/or codes of practice relating to animal welfare in force in the States or Territories where the Activity is to be carried out.

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

40A.1 Subject to subclause 40A.2, nothing in this Agreement shall prevent an Individual Irrigator from entering into a transfer, lease or mortgage whereby the right, title and interest of the Individual Irrigator in any land affected by:

(a) this Agreement;

(b) a contract between the Organisation and an Individual Irrigator; or

(c) the Activity,

is transferred to a third party.

40A.2 The Organisation must ensure, upon any transfer mentioned in clause 40A.1, that the Individual Irrigator:

(a) obtains the transferee/lessee/mortgagee’s agreement that the land is subject to:

(i) this Agreement;

(ii) the contract between the Organisation and the Individual Irrigator;

(iii) the Activity; and

(b) without limiting the generality of subclause 40A.2(a), includes in any instrument of transfer/lease/mortgage provisions to the effect specified in Item 15 of the Schedule.

40A.3 The Organisation must notify the Department as soon as it receives notice of a proposed transfer mentioned in 40A.1 together with evidence as to whether


the third party who is the transferee intends to continue with the Activities on the applicable land.

41. INTERPRETATION

41.1 In this Agreement, unless the contrary intention appears:

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

‘Activity’ means the activity described in the Schedule, which aims to fulfil one or more of the goals of the Program, and includes:

(a) the Projects (including each Individual Irrigator’s Project or Sub-project);

(b) the provision of Activity Material;

(c) any works that are required to be undertaken by the Organisation as part of a Project as described in this Agreement or any Workplan;

(d) any works that are required to be undertaken by an Individual Irrigator as part of a Project as described in this Agreement or any Workplan;

(e) any parts of the Activity that are required to be undertaken by an Individual Irrigator or a Subcontractor; and

(f) any other obligations that are required to be performed by the Organisation under this Agreement in order to deliver the Activity;

‘Activity Material’ means all Material:

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

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

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

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

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

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

‘Agreed Water Savings’ means:

(a) in relation to the Organisation – the volume of Water Access Entitlements specified in Item 14 of the Schedule that is expected to be saved as a result of the Organisation’s use of the Funds to undertake the Project; and


(b) in relation to an Individual Irrigator - the volume of the Irrigation Rights specified in Item 14 of the Schedule which are to be cancelled by Individual Irrigators and granted to the Commonwealth as Water Access Entitlements by the Organisation under a Water Access Entitlement Assignment Contract arising from water savings derived as a result of the use of the Funds by the Organisation and the Individual Irrigators to undertake the Activity;

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

‘Annexure’ means an annexure to the Schedule;

‘Approved Auditor’ means a person who is:

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

(b) not a principal, member, shareholder, officer or employee of the Organisation or of a related body corporate as defined in section 9 of the Corporations Act 2001 or the Organisation’s or an Individual Irrigator’s Qualified Accountant;

‘Area of Operations’ has the meaning given in section 117 of the Water Management Act 2000 (NSW);

‘Asset’ means any item of tangible property, purchased, leased, created or otherwise brought into existence wholly, or in part, with the use of the Funds, which has at that time a value of over $5,000 inclusive of GST, but does not include Activity Material or any Irrigation Right;

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

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

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

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


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

‘Budget’ refers to a budget for expenditure of the Funding for the purposes of conducting the Activity or performing obligations under this Agreement, in Item 4 of the Schedule;

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

‘Commonwealth’ means the Commonwealth of Australia;

‘Competitive Process’ means a tender or quote process that involves sourcing of goods or services that are either:

(a) sourced from a Panel Arrangement maintained by the Organisation;

(b) sourced by the Individual Irrigator at a cost that is below the lowest rates of the suppliers on the Panel Arrangement by the Organisation; or

(c) sourced by the Individual Irrigator using a process consistent with the following procurement principles:

(i) obtain a value for money outcome;

(ii) encourage competition (encompassing non-discrimination and competitive procurement processes);

(iii) ensure an efficient, effective and ethical use of resources; and

(iv) ensure accountability and transparency of process;

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

‘Confidential Information’ means:

(a) the information described in the Schedule; and

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

‘Conflict’ means any matter, circumstance, interest or activity involving or affecting the Organisation, its Personnel, an Individual Irrigator or a Subcontractor which may or may appear to impair the ability of the Organisation to perform the Activity, or its Individual Irrigator to perform its Project, diligently and independently;

‘Constitution’ means (depending on the context):

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


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

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

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

‘corresponding WHS law’ has the meaning given in section 4 of the WHS Act;

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

‘Decommissioning’ means all activities, tasks and work necessary to ensure that the Organisation’s channels and irrigation infrastructure the subject of Item 1.7 of the Schedule are decommissioned so that they are no longer capable of being used to convey water for irrigation purposes, and in the case of Sub-project 1 – System Retirement, are no longer connected to relevant Individual Irrigators’ landholdings and no longer capable of being used to convey water to Individual Irrigators’ landholdings for irrigation purposes.

‘Decommissioned’ has an equivalent meaning;

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

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

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

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

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

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

‘Disconnection Completion’ where it appears in the Schedule means the component of the Budget that is the balance of Funds available to each Individual Irrigator in the System Retirement Zone after:

(a) the Decommissioning activities are completed in full; and

(b) the Individual Irrigator has permanently disconnected from the Organisation’s system for the supply of irrigation water.


The value of the scheme rationalisation component (Sub-project 1) of the Budget must not exceed $[TBC] (GST exclusive), and may include provision for Disconnection Completion. The value of Funding for each Individual Irrigator in the System Retirement Zone has been determined by the Organisation within the overall available funding for farm rationalisation.

The purpose of Disconnection Completion is to ensure that each Individual Irrigator in the System Retirement Zone permanently completes the disconnection of the Individual Irrigator’s landholding from the Organisation’s system for the supply of irrigation water. Payments for Disconnection Completion can be made by the Organisation to an Individual Irrigator in the System Retirement Zone after:

(a) an Individual Irrigator in the System Retirement Zone has completed the Individual Irrigator’s Project in accordance with the contract between the Individual Irrigator and the Organisation (including permanent disconnection from the Organisation’s system for the supply of irrigation water);

(b) the Organisation’s channels and irrigation infrastructure are Decommissioned so that they are no longer connected to the relevant Individual Irrigator’s landholding and no longer capable of being used to convey water to the Individual Irrigator’s landholding for irrigation purposes;

(c) the Individual Irrigator’s Irrigation Right has been cancelled by the Organisation;

(d) the Individual Irrigator’s shares in the Organisation have been cancelled;

(e) the Organisation has Assigned to the Commonwealth Water Access Entitlements equivalent to the Agreed Water Savings set out in Item 14;

(f) the Organisation has excluded the Individual Irrigator’s landholding from the Organisation’s Area of Operations; and

(g) the relevant Individual Irrigator provides the Organisation with a Disconnection Statement, in addition to the Individual Irrigator certifying and warranting (and it being a contractual requirement that the Individual Irrigator so certify and warrant) that all works are completed, duly signed by the relevant Individual Irrigator.

‘Disconnection Statement’ means the statement set out at Annexure E;

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

'Eligible Activity' means an activity set out in Part A of Annexure F;

'Environmental Arrangement' means an arrangement (whether contractual or statutory) with the Commonwealth under which the Commonwealth provides funds for irrigation purposes or water resource management,


environmental management or natural resource management purposes excluding this Agreement and the contracts executed between the Individual Irrigators and the Organisation for the purpose of this Agreement;

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

(a) incorporated in;

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

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

the Activity Material;

‘Expenditure Report’ (or ‘Milestone Expenditure Report’) means a report in the form attached at Annexure C and addressing such issues as may reasonably be required by the Department;

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

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

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

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

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

‘Guidelines’ refers to the guidelines for Round 3 of the Program;

'Ineligible Activity' means an activity set out in Part B of Annexure F;

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

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

‘Inspector’ has the same meaning as that given in the WHS Act;

‘Intellectual Property Rights’ includes all copyright (including rights in relation to phonograms and broadcasts), all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), designs, circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary


or artistic fields but does not include Moral Rights, the rights of performers or rights in relation to Confidential Information;

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

‘Irrigation Right’ means an ‘irrigation right’ as defined in section 4 of the Water Act;

‘Individual Irrigator’ means any person(s) or organisation(s):

(a) holding an Irrigation Right for the purposes of agricultural production; and/or

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

(c) that is a business operator associated with a person or organisation referred to in (a) and/or (b) above and engaged by the Organisation to undertake part of the Activity under this Agreement;

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

‘Milestone’ means a stage of completion of the Activity set out in the Milestone Schedule;

‘Milestone Audit Report’ means a report in the form attached at Annexure D and addressing such issues as may reasonably be required by the Department;

‘Milestone Report’ means a report in the form attached at Annexure B and addressing such issues as may reasonably be required by the Department;

‘Milestone Schedule’ means the table set out in Item 1.8 of the Schedule;

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

(a) the right of attribution of authorship;

(b) the right of integrity of authorship;

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

‘Notifiable Incident’ has the meaning given in the WHS Act;

‘Objectives’ means the objectives of the Activity described in the Schedule, which are the agreed results the Organisation must achieve and ensure that the Individual Irrigators and its Subcontractors achieve;


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

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

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

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

'Panel Arrangement' means a panel of providers for work or services required to undertake the Activities which have been approved by the Department;

‘Party’ means a party to this Agreement;

‘Personal Information’ has the same meaning as under the Privacy Act, which currently is information or an opinion (including information or an opinion forming part of a data base), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;

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

‘Privacy Commissioner’ means the Office of the Privacy Commissioner established under the Privacy Act and includes any other entity that may, from time to time, perform the functions of that Office;

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

‘Project’ means the irrigation efficiency sub-projects as set out in Item 1.7 that the Organisation or an Individual Irrigator is required to undertake as part of the Activity and for which the Organisation is required to Assign to the Commonwealth the Agreed Water Savings under a Water Access Entitlement Assignment Contract;

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

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

(b) where the proceeds of insurance paid to the Organisation to replace an Asset exceed the amount actually paid by the Organisation to replace the Asset – the proportion of that excess that reflects the


proportion of the total cost of acquiring the Asset that was met by the Funds; and

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

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

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

‘Regulator’ means an authority referred to in a WHS Law as the relevant authority for occupational health and safety complaints, queries or investigations;

‘Report’ means those reports described at clause 10 and Item 5 in the Schedule and are Activity Material that is provided to the Department for reporting purposes on matters as stipulated in the Schedule;

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

‘Specified Subcontractors’ means those subcontractors identified in Item 11A (or as directed at any other time by the Department) to perform the Specified Subcontract Work;

‘Specified Subcontract Work’ means work specified in Item 11A (or as directed at any other time by the Department) that is to be performed by the Specified Subcontractors;

‘System Retirement Zone’ where it appears in the Schedule means that land within the Organisation’s Area of Operations that is owned by Individual Irrigators who are to be permanently disconnected from the Organisation’s irrigation infrastructure following completion of the Activity;

‘Structures’ where it appears in the Schedule means breaks in the Organisation’s or an Individual Irrigator’s water reticulation system, such as farm outlets, flow control mechanisms, and road crossings;

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

‘Sub-project’ means a part of the Project as set out in the Schedule;

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

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

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

‘Third Party Interest’ means any legal or equitable right, interest, power or remedy in favour of any person other than the Organisation or the


Commonwealth in connection with the Agreement, including, without limitation, any right of possession, receivership, control or power of sale, and any mortgage, charge, security or other interest;

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

‘WAL’ means a water access licence as defined in Chapter 3, Part 2 of the Water Management Act 2000 (NSW);

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

‘Water Access Entitlement’ means a ‘water access entitlement’ as defined in section 4 of the Water Act and specified in Item 14 of the Schedule which is capable of being Assigned to the Commonwealth under a Water Access Entitlement Assignment Contract;

‘Water Access Entitlement Assignment Contract’ or ‘WAEAC’ means a contract or series of contracts between the Organisation and the Commonwealth to Assign the Agreed Water Savings to the Commonwealth and in the form provided by the Commonwealth from time to time;

‘WHS Act’ means the Work Health and Safety Act 2011 (Cth);

‘WHS Entry Permit Holder’ has the same meaning as that given in the WHS Act;

‘WHS Laws’ means the WHS Act and any corresponding WHS law;

; and

‘Workplan’ refers to the detailed plan which sets out specific work and activities to be undertaken by the Organisation or an Individual Irrigator in the performance of the Activity. The Workplan must be consistent with the information provided by the Organisation in their application for funding under the Program, must be delivered at times specified in the Milestone Schedule and approved by the Department in accordance with clauses 5.16 – 5.18A.

41.2 In this Agreement, unless the contrary intention appears:

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

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

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

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

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

(f) reference to any statute or other legislation (whether primary or subordinate) is to a statute or other legislation of the Commonwealth


and, if it has been or is amended, modified or repealed and other legislation substituted, is a reference to that statute or other legislation as amended, modified or substituted;

(g) no provision of this Agreement will be construed adversely against a party solely because that party was responsible for drafting that particular provision;

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

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

41.3 The Schedule (and Annexures and documents incorporated by reference, if any) form part of this Agreement. In the event of any conflict or inconsistency between any part of:

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

(b) the Schedule;

(c) any Annexures or Workplans, or

(d) any other documents incorporated by reference;

then the material mentioned in any one of paragraphs (a) to (d) of this subclause 41.3 has precedence over material mentioned in a subsequent paragraph, to the extent of any conflict or inconsistency.


SCHEDULE

1. TERM, PROGRAM AND ACTIVITY (Recital A, subclauses 2.1, 5.1 and 41.1)

TERM

1.1 The Activity Period commences on the Date of this Agreement and ends on [TBC].

PROGRAM

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

ACTIVITY

1.3 In conducting the Activity, the Organisation must perform the work and achieve the Milestones (including those relating to the provision of Reports, the cancellation of Individual Irrigators’ Irrigation Rights and Assignment of Water Access Entitlements equivalent to the Agreed Water Savings to the Commonwealth) specified in this Item 1 of the Schedule.

1.4 The Organisation must perform the Activity in accordance with a Workplan. The Workplan and any updates must be approved by the Department.

1.5 The Workplan must be consistent with the information provided by the Organisation in its application for funding under the Program and must be to the satisfaction of the Department.

OBJECTIVES OF THE ACTIVITY

1.6 The objective of the Activity is for the Commonwealth to acquire the Agreed Water Savings achieved through the implementation of the Activity which improves the efficiency and productivity of water use and management both off and on farms within the Organisation’s Area of Operations.

The Commonwealth will acquire Water Access Entitlements totalling [TBC] comprised of:

(a) [TBC]; and

(b) [TBC],

as set out at Item 14.

The Agreed Water Savings will be Assigned by the Organisation to the Commonwealth:

(a) in the number of tranches;(b) in accordance with the Milestones; (c) in the volumes; and (d) in the WALs,

set out in this Schedule.


DETAILED DESCRIPTION OF THE ACTIVITY INCLUDING THE PROJECTS

1.7 The Activity has a number of Sub-projects including:

(a) Sub-project 1 – System Retirement [details TBC](b) Sub-project 2 – Channel Lining [details TBC]

as more fully described in the Milestone Schedule and the Organisation’s application for funding under Round 3 of PIIOP.

MILESTONE SCHEDULE

1.8 The following table details the Activity Milestones. Each Milestone payment will be due and payable on satisfactory completion of the last activity comprising the Milestone.

Milestone Item

Milestone Description Indicator / Evidence Due Date Payment value (excl GST)

Milestone 1 Milestone Report [TBC] $[TBC]

1a Funding Agreement for the PIIOP project for [Organisation name] executed by the Organisation and the Department.

Copy of signatory pages from the Funding Agreement agreed by the Department and the Organisation.

1b Invoice issued by the Organisation to the Department for $[TBC] (GST exclusive).

Correctly rendered invoice.

Milestone 2 Milestone ReportAudit ReportExpenditure Report

[TBC] $[TBC]

2a Establishment of project management arrangements, including roles and responsibilities for project management.

Documents outlining project management arrangements approved by the Board and Board minutes approving the arrangements.

2b Establishment of the framework for managing Individual Irrigator involvement in the project, including the framework for the Panel Arrangement.

Documents outlining the framework for managing Individual Irrigator involvement in the project approved by the Board and Board minutes approving the framework.

2c Water Acquisition Step 1: Organisation provides all information and documentation necessary for the Department to undertake conveyancing due diligence check on the first tranche of Water Access Entitlements to be

Copy of correspondence that provided all information and documentation required for conveyancing due diligence.


Milestone Item


transferred to the Commonwealth. These documents must be received by the Department at least two months prior to the milestone due date, in time for settlement around [TBC]. The conveyancing due diligence will be undertaken on [TBC] ML of [TBC] share component.

2d Water Acquisition Step 2: Water Access Entitlement Assignment Contract (WAEAC) for [TBC] ML of [TBC] share component signed by the Organisation and the Department prior to the milestone due date, in time for settlement around [TBC].

Copy of the signatory page from the WAEAC.

2e Water Acquisition Step 3: Organisation obtains all necessary planning and water approvals, including from the NSW Government, for transfer of [TBC] ML of [TBC] share component. Copies of these documents must be received by the Department at least two weeks prior to the milestone due date, in time for settlement around [TBC].

Copy of correspondence that provided all necessary planning and water approvals, including from the NSW Government.

2f Water Acquisition Step 4: Letter from Organisation’s solicitor or authorised representative stating that the Organisation is ready for settlement on [TBC] ML of [TBC] share component.

Letter from Organisation’s solicitor or authorised representative that the Organisation has taken all steps necessary for settlement to occur.

2g Inception meeting held between the Organisation and the Department.

Statement by the Organisation that meeting was held.

2h Invoice issued by the Organisation to the Department for $[TBC] (GST exclusive).



[TBC] $[TBC]

3a Progress towards Sub-project 1 – System Retirement, including: execution of all Individual Irrigator agreements in the System Retirement Zone.

Signatory pages from all Individual Irrigator agreements in the System Retirement Zone.Copy of System Retirement Zone Individual Irrigator signed


Milestone Item


workplans, MOUs, budget and signed farm plan.

3b Water Acquisition Step 1: Organisation completes the cancellation of all Individual Irrigators Irrigation Rights as listed in item 14.2.Organisation provides all information and documentation necessary for the Department to undertake conveyancing due diligence check on the first tranche of Water Access Entitlements to be transferred to the Commonwealth. These documents must be received by the Department at least two months prior to the milestone due date, in time for settlement around [TBC]. The conveyancing due diligence will be undertaken on [TBC] ML of [TBC] share component.


3c Water Acquisition Step 2: Water Access Entitlement Assignment Contract (WAEAC) for [TBC] ML of [TBC] share component signed by the Organisation and the Department prior to the milestone due date, in time for settlement around [TBC].


3d Water Acquisition Step 3: Organisation obtains all necessary planning and water approvals, including from the NSW Government, for transfer of [TBC] ML of [TBC] share component. Copies of these documents must be received by the Department at least two weeks prior to the milestone due date, in time for settlement around [TBC].


3e Water Acquisition Step 4: Letter from Organisation’s solicitor or authorised representative stating that the Organisation is ready for settlement on [TBC] ML of [TBC] share component.


3f Invoice issued by the Organisation to the Department for $[TBC] (GST exclusive).



Milestone Item



[TBC] $[TBC]

4a Provision of a detailed Workplan outlining how the Project will be delivered and which must address: how the Activity will be

performed within the Budget; how the Activity will be

performed within the stipulated timeframes; and

details of Sub-project Workplans for the main components of the Project, including the Sub-project 1 – System Retirement and Sub-project 2 – Channel Lining.

Project Workplan and all Sub-project Workplans provided to the satisfaction of the Department.

Workplans must be feasible, achievable and align with the funding commitments and requirements of the Funding Agreement.

4b All necessary environmental and planning approvals for Sub-project 1 – System Retirement and Sub-project 2 – Channel Lining have been obtained and provided to the Department.

Copy of all environmental and planning approvals for Sub-project 1 – System Retirement and Sub-project 2 – Channel Lining.

4c Water Acquisition Step 1: Organisation provides all information and documentation necessary for the Department to undertake conveyancing due diligence check on the second tranche of Water Access Entitlements to be transferred to the Commonwealth. These documents must be received by the Department at least two months prior to the milestone due date, in time for settlement around [TBC]. The conveyancing due diligence will be undertaken on [TBC] ML of [TBC] share component.


4d Water Acquisition Step 2: Water Access Entitlement Assignment Contract (WAEAC) for [TBC] ML of [TBC] share component signed by the Organisation and the Department prior to the milestone due date, in time for settlement around [TBC].


4e Water Acquisition Step 3: Organisation obtains all necessary

Copy of correspondence that provided all necessary planning


Milestone Item


planning and water approvals, including from the NSW Government, for transfer of [TBC] ML of [TBC] share component. Copies of these documents must be received by the Department at least two weeks prior to the milestone due date, in time for settlement around [TBC].

and water approvals, including from the NSW Government.

4f Water Acquisition Step 4: Letter from Organisation’s solicitor or authorised representative stating that the Organisation is ready for settlement on [TBC] ML of [TBC] share component.


4g Progress meeting held between the Organisation and the Department.

Statement by Organisation in the Milestone Report confirming the meeting was held.

4h Invoice issued by the Organisation to the Department for $[TBC] (GST exclusive).



[TBC] $[TBC]

5a Progress towards Sub-project 1 – System Retirement, including establishment of on-farm Panel Arrangement.

Documentary evidence confirming the establishment of the on-farm Panel of Approved Suppliers, including the hyperlink to [Organisation name] web page where instructions for suppliers to join the panel for the duration of the project are advertised.

5b Progress towards completion of Sub-project 2–Channel Lining, including completion of Channel Lining Design.

Copy of the design specifications, the analysis reports provided to the Board and the Board’s decision to approve the design.

5c Invoice issued by the Organisation to the Department for $[TBC] (GST exclusive).


Milestone 6 Milestone ReportAudit Report

[TBC] $[TBC]


Milestone Item


Expenditure Report

6a Water Acquisition Step 1:Organisation provides all information and documentation necessary for the Department to undertake conveyancing due diligence check on the third tranche of Water Access Entitlements to be transferred to the Commonwealth. These documents must be received by the Department at least two months prior to the milestone due date, in time for settlement around [TBC]. The conveyancing due diligence will be undertaken on [TBC] ML of [TBC] share component.


6b Water Acquisition Step 2: Water Access Entitlement Assignment Contract (WAEAC) for [TBC] ML of [TBC] share component signed by the Organisation and the Department prior to the milestone due date, in time for settlement around [TBC].


6c Water Acquisition Step 3: Organisation obtains all necessary planning and water approvals, including from the NSW Government, for transfer of [TBC] ML of [TBC] share component. Copies of these documents must be received by the Department at least two weeks prior to the milestone due date, in time for settlement around [TBC].


6d Water Acquisition Step 4: Letter from Organisation’s solicitor or authorised representative stating that the Organisation is ready for settlement on [TBC] ML of [TBC] share component.


6e Progress towards completion of Sub-project 1 – System Retirement, including completion of the design for installation of stock and domestic water supply system.

Copy of the design specifications for stock and domestic water supply system,the analysis report to the Board and the Board’s decision to approve the stock & domestic water supply system design.


Milestone Item


6f Progress towards completion of Sub-project 2 – Channel Lining, including awarding of tenders for construction and procurement of materials.

Copy of the tender analysis reports provided to the Board and the Board’s decision to approve the tenders.

6g Provision of the following updated components of the Organisation’s workplan:

Updated risk management plan for the PIIOP project;

Updated WH&S management plan relating to the PIIOP project; and

Updated activity timelines and progress monitoring for Sub- project 1 – System Retirement and Sub-project 2 – Channel Lining.

Updated risk management plan, WH&S management plan, and activity timelines/progress monitoring for Sub-projects 1 and 2.

6h Progress meeting held between the Organisation and the Department.


6i Invoice issued by the Organisation to the Department for $[TBC] (GST exclusive).



[TBC] $[TBC]

7a Progress towards completion of Sub-project 1 – System Retirement, including awarding of tenders for all Individual Irrigators’ stock and domestic water supply system.

Copy of the tender analysis reports provided to the Board and the Board’s decision to approve the tenders for the installation of stock and domestic water supply system.

7b Progress towards completion of Sub project 2 – Channel Lining, includingchannel lining of [TBC]km out of approximately [TBC]km.

Certificate of practical completion, including extract(s) from the Organisation’s Asset Register, confirming that [TBC] km of channel lining has been completed.



Milestone 8 Milestone ReportAudit Report

[TBC] $[TBC]


Milestone Item


Expenditure Report

8a Water Acquisition Step 1: Organisation provides all information and documentation necessary for the Department to undertake conveyancing due diligence check on the fourth tranche of Water Access Entitlements to be transferred to the Commonwealth. These documents must be received by the Department at least two months prior to the milestone due date, in time for settlement around [TBC]. The conveyancing due diligence will be undertaken on [TBC] ML of [TBC] share component.


8b Water Acquisition Step 2: Water Access Entitlement Assignment Contract (WAEAC) for [TBC] ML of [TBC]share component signed by the Organisation and the Department prior to the milestone due date, in time for settlement around [TBC].


8c Water Acquisition Step 3: Organisation obtains all necessary planning and water approvals, including from the NSW Government, for transfer of [TBC] ML of [TBC] share component. Copies of these documents must be received by the Department at least two weeks prior to the milestone due date, in time for settlement around [TBC].




8e Progress towards completion of Sub-project 2 – Channel Lining, including channel lining of [TBC]km out of approximately [TBC]km.

Certificate of practical completion, including extract(s) from the Organisation’s Asset Register confirming that [TBC] km of channel lining has been completed.

8f Progress towards completion of Sub-project 1 – System Retirement,

Copy of the plan for Decommissioning of irrigation


Milestone Item


including:

Approval of the plan for Decommissioning of irrigation delivery channels;

Completion of [TBC] out of [TBC] on-farm works that facilitate irrigation retirement; and

Installation of [TBC] km out of [TBC] km of stock and domestic water supply system.

delivery channels, the analysis report to the Board and the Board’s decision to approve the Decommissioning plan.

Certificate of practical completion, including extract(s) from the Organisation’s Asset Register, confirming that [TBC] on-farm works have been completed.

Certificate of practical completion, including extract(s) from the Organisation’s Asset Register, confirming that [TBC] km of stock and domestic water supply system has been installed.

8g Provision of the following updated components of the Organisation’s workplan:

Updated risk management plan for the PIIOP project;

Updated WH&S management plan relating to the PIIOP project; and

Updated activity timelines and progress monitoring for Sub- project 1 – System Retirement and Sub-project 2 – Channel Lining.

Updated risk management plan, WH&S management plan and activity timelines/progress monitoring for Sub-projects 1 and 2.

8h Progress meeting held between the Organisation and the Department.





[TBC] $[TBC]

9a Progress towards Sub-project 1 –System Retirement, including:

Awarding of tender for the Decommissioning of irrigation delivery channels;

Copy of the tender analysis reports provided to the Board and the Board decision to approve the tenders for the Decommissioning of irrigation delivery channels.


Milestone Item


Completion of [TBC] out of [TBC] on-farm works that facilitate irrigation retirement; and

Installation of the remaining [TBC] km out of [TBC] km of stock and domestic water supply system.

Certificate of practical completion, including extract(s) from the Organisation’s Asset Register, confirming that [TBC] on-farm works have been completed.

Certificate of practical completion, including extract(s) from the Organisation’s Asset Register, confirming that the remaining [TBC]km of stock and domestic water supply system has been installed.

9b Progress towards completion of Sub-project 2 – Channel Lining, including channel lining of [TBC]km out of approximately [TBC]km.

Certificate of practical completion, including extract(s) from the Organisation’s Asset Register, confirming that [TBC]km of channel lining has been completed.




[TBC] $[TBC]

10a Water Acquisition Step 1: Organisation provides all information and documentation necessary for the Department to undertake conveyancing due diligence check on the fifth tranche of Water Access Entitlements to be transferred to the Commonwealth. These documents must be received by the Department at least two months prior to the milestone due date, in time for settlement around [TBC]. The conveyancing due diligence will be undertaken on [TBC] ML of [TBC] share component.


10b Water Acquisition Step 2: Water Access Entitlement Assignment Contract (WAEAC) for [TBC] ML of [TBC] share component signed by the Organisation and the Department prior



Milestone Item


to the milestone due date, in time for settlement around [TBC].

10c Water Acquisition Step 3: Organisation obtains all necessary planning and water approvals, including from the NSW Government, for transfer of [TBC] ML of [TBC]share component. Copies of these documents must be received by the Department at least two weeks prior to the milestone due date, in time for settlement around [TBC].




10e Completion of Sub-project 1 – System Retirement, including:

Permanent Decommissioning of [TBC] km of irrigation delivery channels;

Completion of the remaining [TBC] out of [TBC] on-farm works that facilitate irrigation retirement;

Exclusion of all properties within the System Retirement Zone from the Organisation’s Area of Operations; and

Inspection of completed works by the project manager.

Certificate of practical completion, including extract(s) from the Organisation’s Asset Register, confirming that [TBC] km of irrigation delivery channels have been permanently Decommissioned

Certificate of practical completion, including extract(s) from the Organisation’s Asset Register, confirming that remaining [TBC] on-farm works that facilitate irrigation retirement have been completed.

Signed statement by the Board, including extract(s) from the Organisation’s Asset Register, confirming that disconnection works have been completed and all stock and domestic water infrastructure has been installed including:

Copies of Disconnection Statements executed by [TBC] Individual Irrigators from the System Retirement Zone;


Milestone Item


Copy of project manager’s inspection report and sign off by project manager;

Map showing revised Area of Operation; and

Copies of relevant approvals from NSW Minister for revision of Area of Operation.

10f Completion of Sub-project 2 – Channel Lining, including channel lining of the remaining [TBC] km.

Certificate of practical completion, including extract(s) from the Organisation’s Asset Register, confirming that the remaining [TBC] km of channel lining has been completed.

10g Draft Final Project Report provided to the Department for its consideration and comment.

Draft Final Project Report.

10h Final progress meeting held between the Organisation and the Department.





[TBC] $[TBC]

11a Completion of [Organisation name] PIIOP Round 3 project, including:

All invoices have been received by the Organisation.

Statement from the chairman of the Board confirming work for [Organisation name] PIIOP Round 3 project has been completed, all invoices have been received and a statement of the total quantum of invoices for the project.

11b Individual Irrigators’ Audit Report of the income and expenditure of Funds for the Individual Irrigators’ projects as required in clause 10.2(a).

Individual Irrigators’ Audit Report to the satisfaction of the Department.

11c Final Project Report. Final Project Report to the satisfaction of the Department.

Subject to compliance with this Agreement including


Milestone Item

Milestone Description Indicator / Evidence Due Date Payment value (excl GST)4.2, 5.10 and 5.10B and the Final Audit Report

11d Final Audit Report of the Organisation’s income and expenditure as required in clause 10.2(a)-(d).

Final Audit Report to the satisfaction of the Department.

11e Invoice issued by the Organisation to the Department for up to $[TBC] (GST exclusive).


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

2.1 The maximum GST-exclusive amount of Funding for the Activity is $[TBC].

2.2 The Funding will be paid at the times and in the manner specified in the Milestone Schedule in Item 1.8. The Organisation must provide the Department with a valid tax invoice for the relevant part of the Activity for which it is about to receive Funding.

2.3 Any payment made in accordance with Item 2.2 is subject to the terms of this Agreement and:

(a) completion of each Milestone to the satisfaction of the Department;

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

(c) where the Organisation makes a Taxable Supply under this Agreement, the Organisation providing the Commonwealth with a Tax Invoice in accordance with subclause 11.6;

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

(e) Assignment to the Commonwealth of Water Access Entitlements equivalent to the Agreed Water Savings as set out in the Milestone table in Item 1.8.

2.4 All information and documentation necessary to undertake legal due diligence assessments of the Water Access Entitlements to be Assigned to the Commonwealth must be provided to the Department at the time specified in the Milestone table at Item 1.8.

2.5 A Water Access Entitlement Assignment Contract is to be signed on successful completion of legal due diligence and a section 71Q Application lodged with the NSW Government by the Organisation. Transfer of the Water Access


Entitlements to the Commonwealth will occur once the section 71Q Application is approved by the NSW Government and must occur within 90 Days of the execution of the Water Access Entitlement Assignment Contract.

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

ORGANISATION’S CONTRIBUTIONS

3.1 The Organisation’s Contributions are specified in the following table.

Organisation’s Contribution Total Amount and amount and dates on which the Organisation will make each payment of the Organisation’s Contributions

[TBC] [TBC]

OTHER CONTRIBUTIONS

3.2 The Other Contributions are specified in the following table.

Source and purpose of Other Contribution and whether in-kind or financial contribution

Total Amount and amount and dates on which each instalment (if any) of Other Contribution(s) will be paid

[TBC] [TBC]


4. BUDGET (subclause 41.1)

4.1 The overall GST-exclusive Budget for the Activity is specified in the following table in this Item 4.1

No ACTIVITY QTY UNIT RATEOrganisation’s Contribution

Commonwealth Funding Total Budget

1 System Retirement1.11.21.31.41.51.61.7 Sub-total

2 Channel Lining2.12.22.32.42.52.6 Sub-total

3 Project Management, Design & Contingency 3.1 Project Management 3.2 Design 3.3 Contingency Sub-total

TOTAL

75Department of the Environment “Sample” Funding Agreement

5. REPORTS (subclauses 41.1 and clause 10)

5.1 The Organisation must provide the Reports, in the form and manner, specified in this Item 5 to the Department.

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

5.3 In addition, the Organisation must provide the financial Reports, at the times and in the manner, specified in clause 10.

MILESTONE REPORTS

5.4 A Milestone Report (Annexure B), Expenditure Report (Annexure C) and Milestone Audit Report (Annexure D) are due for each Milestone and at the times specified in the table at Item 1.8. The Milestone Audit Report must be from an Approved Auditor regarding the Organisation's expenditure for the milestone period, in the manner specified at Annexure D.

5.5 The Department will provide the Organisation with a Milestone Report template and a Milestone Expenditure Report template for each Milestone prior to the Milestone due date.

FINAL PROJECT REPORT

5.6 The final Project Report is due at the final Milestone (specified in Item 1), upon completion of the Activity or termination of this Agreement, whichever is the earliest.

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

The final Project Report must:

(a) cover the entire Activity Period;

(b) be supported by documentary and technical evidence;

(c) describe the conduct, benefits and outcomes of the Activity as a whole; including but not limited to, the extent to which:

(i) the modernisation plan has been implemented;

(ii) the Organisation has a more sustainable future due to PIIOP funding;

(iii) the dependent irrigation community has a more sustainable future due to PIIOP funding;

(iv) the Organisation has improved ability to cope with lower allocations arising from a more variable water supply due to climate change.

(v) the Organisation’s system efficiency has been improved as a percentage;

(vi) farms have improved capacity to maintain production at lower allocations;

(vii) farms have more efficient infrastructure to use water more effectively;

Department of the Environment Funding Agreement76

(viii) the Organisation has decreased water losses and increased water management efficiency;

(ix) additional water is now available for the Organisation and on-farm for increased production; and

(x) the Agreed Water Savings were transferred to the Commonwealth;

(d) evaluate the Activity (including the Sub-projects) to date and include a detailed discussion of the extent to which each of the Objectives of the Activity have been achieved;

(e) contain an explanation of why any Objectives were not achieved; and

(f) include an itemised statement of expenditure of the Funds in the form of the Milestone Expenditure Report.

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

OTHER REPORTS

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

(a) any significant developments concerning the Activity; and

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

6. ASSETS (subclause 41.1 and clause 7)

ASSET REGISTER

6.1 The Organisation must maintain an Organisation Asset register, and must maintain an Asset register of Assets acquired by each Individual Irrigator on the file maintained for an Individual Irrigator, for the duration of the Activity Period. The Organisation Asset register must be in the following form and containing the following information. The Asset register maintained for an Individual Irrigator must also include the name of the Individual Irrigator that owns the Asset.

Asset number

Description of Asset

Purchase price or total lease cost

Date of purchase or lease

Term of lease

Location of Asset

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


7. AUSTRALIAN GOVERNMENT MATERIAL (subclauses 12.1 to 12.3)

[TBC]

8. INTELLECTUAL PROPERTY (subclause 41.1 and clause 13)

[TBC]

9. CONFIDENTIAL INFORMATION (subclause 41.1 and clause 14)

COMMONWEALTH CONFIDENTIAL INFORMATION

9.1 The Commonwealth’s Confidential Information is:

Agreement Provisions/Schedule/Annexures

Item Period of Confidentiality

[TBC] [TBC]

Agreement-related material


[TBC] [TBC]

ORGANISATION’S CONFIDENTIAL INFORMATION

9.2 The Organisation’s Confidential Information is:

Agreement Provisions/Schedule/Annexures


[TBC] [TBC]

Agreement-related material


[TBC] [TBC]

10 INSURANCE (subclause 17.1)

10.1 The Organisation is required to hold and maintain the following insurance for the duration of the Activity:

(a) workers compensation insurance as required by law where the Organisation or


Individual Irrigator (as the case may be) carries out activities under this Agreement;

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

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

(d) professional indemnity insurance for an amount of not less than $10 million per claim.

10.2 The Organisation is required to ensure that its Individual Irrigators hold and maintain the following insurance for the duration of the Activity:

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

(b) insurance over any Asset acquired by or on behalf of the Individual Irrigators for its full replacement value.

11. SUBCONTRACTORS (subclause 23.1)

11.1 [TBC]

11A. SPECIFIED SUBCONTRACTORS AND SPECIFIED SUBCONTRACT WORK (clause 23.6)

Specified Subcontractors Specified Subcontract Work

[TBC] [TBC]

12. ACKNOWLEDGMENT AND PUBLICITY (subclause 24.1)

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

12A. COMPLIANCE WITH POLICIES (subclause 25A)

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

Guidelines for the Private Irrigation Infrastructure Operators Program in New South Wales Round Three.


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

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

DirectorWater Recovery Infrastructure SectionWater Efficiency DivisionDepartment of the Environment GPO Box 787CANBERRA ACT 2601Ph [TBC]Fax [TBC]

13.2 The Organisation’s contact and notice details are as follows:

[Contact and address details TBC]

14. AGREED WATER SAVINGS TO BE ASSIGNED TO THE COMMONWEALTH (subclauses 5.19, 5.20, 41.1 and clause 8)

14.1 The total volume of Water Access Entitlements that are required to be Assigned to the Commonwealth under this agreement is [TBC], comprised of [TBC], and [TBC]. For each water transfer required under the Milestone Schedule, the Commonwealth will advise the Organisation of the current market value of each water entitlement, at least 60 business days ahead of the milestone due date, to be used where relevant for the water transfer documentation.

14.2 The Irrigation Rights that are required to be cancelled in connection with this Agreement and the holder of each Irrigation Right are as follows:

Type of Irrigation Right

Holder of Irrigation Right

Customer number

Volume (mega litres/unit) to be cancelled

[TBC] [TBC] [TBC] [TBC]





TOTAL [TBC]

14.3 The Water Access Entitlements required to be Assigned to the Commonwealth under this Agreement must, to the satisfaction of the Department be entitlements that are:

(a) expected to be saved as a result of an eligible activity; and/or

(b) be consistent, to the satisfaction of the Department, with the Organisation’s proposal in its application for funding under the Program.

15. PROVISIONS THAT MUST BE INCLUDED IN ANY INSTRUMENT OF


TRANSFER/LEASE/MORTGAGE (subclause 40A.2)

15.1 The Organisation must ensure that an Individual Irrigator includes the following provisions in any instrument of transfer/lease/mortgage:

(a) The transferor hereby warrants and covenants with the transferee as follows:

(i) That the transferor will prior to completion hereof fully discharge all liabilities and obligations to the [here insert the name of the Operator/Scheme and details and date etc of the Funding Agreement and Individual Irrigators Agreement as necessary] for which the transferor may be liable pursuant to the [here insert details of Deed of Constitution/Rules of Co-operative and details of Funding Agreement and Individual Irrigators Agreement as required] or otherwise.

(ii) That the transferor has obtained or will before completion hereof obtain the release or discharge of any mortgages, charges or other encumbrances affecting any land and/or water entitlement being transferred and will transfer such land and/or water entitlement to the transferee free of any such encumbrances whatsoever.

(iii) That the transferor will indemnify and hold harmless the transferee and [here insert the name of the Operator/Scheme and details and date etc of the Funding Agreement and Individual Irrigators Agreement as necessary] in respect of any actions, suits, claims or demands against the transferor or the [here insert the name of the Operator/Scheme and details and date etc of the Funding Agreement and Individual Irrigators Agreement as necessary] of whatever nature whatsoever in any way arising out of the transferor’s holding of the land and/or water entitlement up to the date of completion hereof and the transferor hereby releases and discharges the [here insert the name of the Operator/Scheme and details and date etc of the Funding Agreement and Individual Irrigators Agreement as necessary] and each past, present and future member, servant or agent thereof from all claims and demands arising out of the transferor’s membership of the [insert details of the Scheme] in respect of the land and/or entitlement being transferred herein.

(iv) That the transferor is the beneficial holder of the land and/or water entitlement to be transferred herein and that on completion hereof the benefit of the whole of the land and/or water entitlement transferred herein will pass to the transferee.

(b) The transferee warrants and covenants with the [insert details of the Scheme] as


follows:

(i) That the transferee has satisfied himself as to the provisions of the [here insert details of Deed of Constitution/Rules of Co-operative and details of Funding Agreement and Individual Irrigators Agreement as required], the financial situation, membership, rules, regulations, management and all other matters relevant to the operation of the [here insert the name of the Operator/Scheme and details and date etc of the Funding Agreement and Individual Irrigators Agreement as necessary] and the transferee hereby agrees to be bound by all such provisions and matters as if the transferee were an original party to the [here insert the name of the Operator/Scheme and details and date etc of the Funding Agreement and Individual Irrigators Agreement as necessary].

(ii) To furnish to the [insert details of the Scheme] prior to completion hereof evidence, by way of lease or registered proprietor of the transferee’s right to occupation of the land on which any water entitlement to be transferred is to be located.

(iii) To hereafter give notice to the [insert details of the Scheme] of any mortgage, charge or other encumbrance affecting either the land or the water entitlement to be transferred or the land upon which the water entitlement to be transferred is to be located and to allow the [insert details of the Scheme] to record such mortgage, charge or encumbrance against the transferee’s entitlement in the records of the [insert details of the Scheme].

(iv) Not to use or allow to be used any water entitlement in any way other than as prescribed by the provisions of the [here insert the name of the Operator/Scheme and details and date etc of the Funding Agreement and Individual Irrigators Agreement as necessary] or any rules, regulations or management made or carried out thereunder and to indemnify and hold harmless the [insert details of the Scheme] against any actions, suits, claims or demands arising out of any unlawful or negligent use of the water entitlement.

(c) The [insert details of the Scheme] hereby agrees as from the date of completion hereof to discharge the transferor and to release the transferor from all further obligations pertaining to the transferor’s membership of the [insert details of the Scheme] from the date hereof but not so as to relieve the transferor from any obligations or liability to the [insert details of the Scheme] up to and including the date hereof and to accept the transferee in respect of all continuing rights and liabilities of the [insert details of the Scheme], the transferor and the transferee in respect of the parties’ membership of the [insert details of the Scheme].


ANNEXURE A: CLAUSES THAT MUST BE INCLUDED IN THE ORGANISATION’S CONTRACTS WITH ITS INDIVIDUAL IRRIGATORS

A.1 As specified in clause 5.20(a), the Organisation must include provisions in its contract with each of its Individual Irrigators that are substantially the same as the requirements specified in the following table.

A.2 The Organisation may include additional provisions in its contract with an Individual Irrigator provided they are not inconsistent with the Organisation's obligations under this Agreement.

Clause Number in this Agreement

Related requirements that must be reflected in the Organisation's contract with each Individual Irrigator

3.3 The Individual Irrigator must inform the Organisation if the Individual Irrigator has any outstanding or unacquitted money under an Environmental Arrangement.

4.3 Notwithstanding any withholding or suspension of any payment of Funds under this Agreement, the Individual Irrigator must continue to perform its Project and its obligations under its contract with the Organisation unless the Organisation has obtained the Department's prior written agreement to the contrary.

4.5 Unless the Commonwealth agrees otherwise in writing, the Organisation:

(a) may only release Funding to an Individual Irrigator who has complied and is complying with its contract with the Organisation;

(b) must not pay any Funding to an Individual Irrigator where the Individual Irrigator has not satisfied any pre-condition to receipt of that Funding under the contract between the Organisation and the Individual Irrigator; and

(c) must not pay any Funding to an Individual Irrigator unless it has received evidence from the Individual Irrigator that the Funding:

(i) will be spent on an Eligible Activity; and

(ii) will not be spent on an Ineligible Activity.

5.1 The Individual Irrigator must carry out its Project in accordance with its contract with the Organisation, diligently, effectively, to a high professional standard and in good faith.

5.2 The Individual Irrigator must comply with all applicable requirements of the Environment Protection and Biodiversity Conservation Act 1999 in carrying out the Activity, the Project and in completing each Milestone (as the case


may be).

5.4 Where the Organisation, acting reasonably, is satisfied the Individual Irrigator does not have the capacity to manage Funding paid to it or payable to it, the Organisation must not release any further amounts of the Funding to that Individual Irrigator.

5.5 The Individual Irrigator may only spend the Funding for its Project in accordance with its contract with the Organisation and the Guidelines.

The Individual Irrigator may only spend interest it earns on the Funds if the Organisation has obtained the Department's prior written permission for the Individual Irrigator to do so. The Individual Irrigator may only spend interest it earns on the Funds on its Project and only on Eligible Activities.

5.7 The Individual Irrigator must keep financial accounts and Records that enable it to meet requirements that are substantially the same as those in paragraphs 5.7(a) - (c) of this Agreement in relation to the Individual Irrigator's Project.

5.8 The Individual Irrigator must ensure that all payments of Funds it makes to third parties are correctly made and properly authorised and that it maintains proper and diligent control over its incurring of liabilities to be consistent with the Budget, Panel Arrangement, Competitive Processes and the list of Eligible Activities.

5.9 The Individual Irrigator must not use any of the things specified in paragraphs 5.9(a) to (c) inclusive of this Agreement as security for the purpose of obtaining or complying with any form of loan, credit, payment or other interest.

5.12 The Individual Irrigator must notify the Organisation if, at the end of the Individual Irrigator's Project, the Individual Irrigator has Funds that have not been spent or irrevocably committed in respect of the Individual Irrigator's Project. The Individual Irrigator’s entitlement to retain the Funds is subject to the Organisation obtaining the Commonwealth written agreement (including as to use).

5.17 The Individual Irrigator must not spend any Funding in a Financial Year until the Workplan for that Financial Year is approved by the Department.

5.18 Individual Irrigators must comply with Workplans (as reviewed and revised by the Organisation from time to time).

5.19 The Organisation may only release Funding for an Individual Irrigator’s Project if:


(a) the Individual Irrigator:

(i) engages a provider from a Panel Arrangement in respect of carrying out work in relation to the Individual Irrigator's Project; or

(ii) if a provider not on a Panel Arrangement is engaged, the Individual Irrigator demonstrates that the cost/rate associated with the work provided by the provider:

(A) is less than the cost/rate under the Panel Arrangement; or

(B) is higher than the cost/rate under the Panel Arrangement but the Individual Irrigator has provided evidence of a Competitive Process having been undertaken to engage the provider and the Organisation is satisfied with the Competitive Process;

(b) the Individual Irrigator warrants that it has the capacity to enter a legally binding contract with the Organisation and commits to:

(i) undertake the Project;

(ii) permanently disconnect the relevant landholding from the Organisation’s system for the supply of irrigation water;

(iii) cancel (or unconditionally apply to the Organisation to cancel) their Irrigation Right as required by clause 8;

(iv) cancel (or unconditionally apply to the Organisation to cancel) shares in the Organisation relating to the relevant landholding;

(v) making a joint application with the Organisation to the relevant NSW Minister for the exclusion of the relevant landholding from the Organisation’s Area of Operations; and

(vi) those other matters required by this Agreement;

(c) the Funding is expended on Eligible Activities only;

(d) the Individual Irrigator holds the Irrigation Right or if more than one Individual Irrigator is involved in a Project, an Individual Irrigator involved in the Project holds the Irrigation Right;

(e) the Individual Irrigator has provided to the Organisation a


valid tax invoice for the relevant part of the Activities for which it is to receive the Funding;

(f) where an Individual Irrigator has spent time performing any part of the Activity, the activity undertaken by the Individual Irrigator is specified in the Individual Irrigator's contract with the Organisation and is costed at a reasonable contractor rate for that activity; and

(g) the preconditions contemplated by clause 4.5 and 5.21 of this Agreement have been met.

5.20(b) The Individual Irrigator must comply with the requirements specified in clause 5.20(b) of this Agreement.

5.21 and 5.22 The Organisation must include payment provisions in its contract with the Individual Irrigator that reflect the requirements in paragraph 5.21 of this Agreement.

The contract must be expressed to:

(a) expire; and

(b) require a repayment of funds,

if an Individual Irrigator does not apply for the unconditional cancellation of its Irrigation Rights and other obligations in accordance with clauses 5.22 and 8.

6.2(a) The Individual Irrigator must provide any Other Contributions that this Agreement states are to be provided by that Individual Irrigator for its Project.

6.6 The Individual Irrigator must notify the Organisation if the Individual Irrigator becomes entitled to receive any financial or in-kind assistance from a third party (other than the Commonwealth) in respect of its Project.

7.1 and 7.2 The Individual Irrigator must not acquire any Asset with the Funding unless the Asset is specified in the contract or the Organisation has notified the Individual Irrigator that it has obtained the Department's prior written consent to the Individual Irrigator acquiring that Asset.

7.3 During the Activity Period, the Individual Irrigator must use each Asset it acquires with the Funds for its Project and in accordance with its contract with the Organisation.

7.4 and 17 The Individual Irrigator must comply, in respect of any Assets the Individual Irrigator acquires with the Funds, with requirements that are substantially the same as those specified in clause 7.4 of this Agreement unless the Organisation obtains the Department's prior written consent to


the contrary in respect of the Asset. The Individual Irrigator must comply with the requirement to maintain insurance in respect of any Asset it acquires The Individual Irrigator is required to insure any Asset it acquires for the Asset's full replacement value.

7.5 The Individual Irrigator must not sell, cease to use or otherwise dispose of an Asset acquired with the Funds during the Term of this Agreement without the Organisation first obtaining the Department's written consent to the sale or disposal of that particular Asset.

7.6 The Individual Irrigator or the Organisation must reinstate any Asset acquired with the Funds that is lost, damaged or destroyed during the Term of this Agreement.

8 The Individual Irrigator must comply with requirements that are substantially the same as those specified in clause 8.

9 The Individual Irrigator must, in respect of its Project, comply with requirements that are substantially the same as those specified in clause 9 (except for paragraph 9.1(f)).

10 The Individual Irrigator must be required to provide the following information and documents to the Organisation to enable the Organisation to comply with its requirements specified in clause 10 and Item 5 of the Schedule of this Agreement:

(a) information as specified in Item 5 of the Schedule regarding the Individual Irrigator's progress of its Project;

(b) audited copies of the financial statements specified in clauses 10.2 and 10.4 of this Agreement in respect of the Individual Irrigator's Project; and

(c) the certificates specified in clauses 10.3 regarding the Individual Irrigator's Project.

11.2 Individual Irrigator must provide information about the Individual Irrigator's GST status and ABN to the Organisation when requested by the Organisation.

12.2 Unless the Organisation notifies the Individual Irrigator otherwise, the Individual Irrigator may retain any Australian Government Material provided to it by the Organisation.

12.3 The Individual Irrigator must keep safely and maintain any Australian Government Material provided to it by the Organisation.

13.4 Individual Irrigator must provide the Organisation with a licence (including a right of sub-licence) to use, reproduce, adapt and exploit the Intellectual


Property Rights in any Activity Material or Existing Material that vests in the Individual Irrigator so as to enable the Organisation to grant the Commonwealth the licences required under clause 13.2 and 13.3 of this Agreement.

13.5 Individual Irrigator must comply with requirements that are substantially the same as those contained in clause 13.5 of this Agreement.

13.7 Individual Irrigator to agree to provide the consents referred to in clause 13.7 of this Agreement.

14.3 If requested by the Organisation, the Individual Irrigator agrees to sign the written undertaking referred to in clause 14.3 of this Agreement.

15 The Individual Irrigator must comply with requirements that are substantially the same as those contained in clause 15.2.

17 The Individual Irrigator must comply with the insurance requirements contained in clause 17 and Item 10 of the Schedule to this Agreement.

18 The Individual Irrigator must immediately inform the Organisation if the Individual Irrigator becomes aware it has any Conflict regarding its performance of its Project, including in relation to the parties or programs (if any) specified in this Agreement.

19 The Individual Irrigator must comply with requirements that are substantially the same as those contained in clause 19.1 to 19.4 inclusive of this Agreement.

20.1 The Individual Irrigator must take all reasonable steps to minimise delay in completion of its Project.

20.3 The Individual Irrigator must immediately notify the Organisation if the Individual Irrigator becomes aware it will be delayed in progressing or completing its Project.

20.5 Except to the extent the Commonwealth notifies the Organisation otherwise, the Individual Irrigator must comply with the timeframes for completing its Project that are specified in its contract with the Organisation.

23.4 The Organisation must have a right in its contract with the Individual Irrigator to immediately terminate that contract for convenience if the Organisation defaults under this Agreement and that also reflects the terms of the Commonwealth's right in clause 21.1 to 21.6 of this Agreement.

The Individual Irrigator must comply with any requirements the Organisation requires to give effect to a notice of termination or reduction in scope issued by the Commonwealth under clause 21.2 of this Agreement.


The Organisation must have a right in its contract with the Individual Irrigator to immediately terminate that contract for default where the Individual Irrigator has breached that contract. This right of the Organisation must reflect the Commonwealth's right of termination in clause 21.7 of this Agreement.

23.5 The Individual Irrigator must warrant that it is not an employer that is currently not complying with the Workplace Gender Equality Act 2012 (Cth).

24 Individual Irrigator must acknowledge the financial and other support it has received from the Commonwealth via the Organisation for its Project in any publications or public announcements the Individual Irrigator makes in accordance with requirements that are substantially the same as those specified in clause 24 of this Agreement and which have been approved by the Department

The Individual Irrigator agrees that the Commonwealth may report on the award of Funding to the Individual Irrigator in the manner specified in clause 24.2 of this Agreement

The Individual Irrigator must provide a copy of any publication that is produced with the Funding to the Organisation.

25 and 25A In performing its Project, the Individual Irrigator must comply with all relevant statutes, regulations, by-laws and requirements of any Commonwealth, State, Territory or Local Authority.

In performing its Project, the Individual Irrigator must comply with any Commonwealth policies as notified to it by the Organisation.

26 Individual Irrigator must comply with requirements that are substantially the same as those imposed on the Organisation in clause 26 of this Agreement.

27.2 Except to the extent the Organisation is expressly authorised to unilaterally vary its contract with an Individual Irrigator, no variation of that contract is binding unless it is agreed in writing and signed by the Organisation and the Individual Irrigator.

30 Individual Irrigator must, in respect of its contract with the Organisation, comply with requirements that are substantially the same as those imposed on the Organisation in clause 30 of this Agreement.

32.5 The Individual Irrigator and the Organisation must agree to comply with a dispute resolution process that is substantially the same as the dispute resolution process specified in clause 32 of this Agreement.

36 The Individual Irrigator agrees to comply with requirements in respect of its


Project that are substantially the same as those specified in clause 36 of this Agreement where the Individual Irrigator's Project involves building or construction activities.

39 The Individual Irrigator agrees to provide all reasonable assistance to the Organisation as the Organisation requests for the purpose of the Commonwealth undertaking a final review of the Program.

40 The Individual Irrigator agrees to comply with any legislation, regulations, guidelines or codes of practice relating to animal welfare in force in the States or Territories where the Individual Irrigator's Project is performed.


ANNEXURE B: MILESTONE REPORT

MILESTONE REPORTProject: [insert name of Project]

Organisation: [insert name of Organisation]

Deed of variation: [insert date]

Milestone [1] Report

Milestone Due Date: [insert date] Submitted: [date of submission of Milestone Report]

Amount Payable (GST exclusive): $[insert amount payable]

Attachments:1. Milestone Expenditure Report2. Milestone audit report 3. [insert any other attachments] 4. Invoice issued by the Organisation to the Department for $xxxx (GST

exclusive).

Schedule, Item 1.8 Reporting Requirement Report by Organisation

(a) Details of activities required in the Milestone Schedule in Item 1.8. Relevant Milestone Schedule text from Item 1.8 of the Agreement

(b) Details of the activities and outcomes achieved under each item in the Milestone Schedule.

A brief statement from the Organisation clearly outlining what has been achieved against each Milestone item, including the provision of the material in the Indicators / Evidence column of the Milestone Schedule in Item 1.8.

(c) Details of actual expenditure incurred in achieving the Milestone, the extent (if any) to which that actual expenditure is less than or more than the expenditure for that Milestone provided for in the Budget and any assessment of likely impact on overall Budget for the project

[The Expenditure Report is at Attachment X]. Fill out the light blue columns in the milestone expenditure report – this is the same report the Approved Auditor will assess.

Word-based assessment of any under-expenditure or over-expenditure (if any) that impacts on the overall Budget.


(d) A statement from a person in his or her capacity as independent auditor of the Organisation (or, if the Organisation has no independent auditor, a qualified person approved by the Department) and who is registered as a company auditor or such like in NSW where the Organisation is incorporated or principally operates and who is a member of the Institute of Chartered Accountants or of the Australian Society of Certified Practicing Accountants:

that funds provided under the Agreement have been expended on Eligible Activities of the Project; and

as to any other matters that are required by the Department for its own or any governmental accountability purposes.

[The Audit Report is at Attachment Y]. This statement should be in accordance with the Department’s Guide on Audits of Milestone and Final Reports, and be a statement about the content of the attached Expenditure Report.

(e) A bank statement of the balance of the Organisation’s account(s) referred to in paragraph 5.6(a) of the Agreement and the amount of Funds, if any, held in the bank account(s) referred to in paragraph 5.6(b) of this Agreement that has not been released to each Individual Irrigator as shown in an Individual Irrigator’s financial accounts and records.

[A bank statement for each account in which Commonwealth Funds are held prior to disbursement to meet the costs of the Activity is at Attachment Z]

The bank statement(s) must include the balance of funds and interest earned to the end of the milestone period.

(f) The amount of interest, if any, earned on the Funds since the last Milestone Report.

Provide the relevant numbers (if any).

(g) A qualitative assessment of any new developments or information of which the Organisation has become aware since the last Milestone Report (or any matter that has not been previously reported) that may impact on the projected water efficiency savings outcomes or other aims of the Project.

Provide Word-based assessment of any variation in the water efficiency savings estimate or project aims (if any).

(h) Details of any Assets the Organisation or an Individual Irrigator proposes to create or acquire using Funds, or any Assets the Organisation or an Individual Irrigator proposes to encumber or Dispose of, as required in clauses 5.9, 7.1, 7.2 and 7.4.

Updated Organisation Asset Register and Individual Irrigator Asset Registers as required in Item 6.1.

Provide a list of any Assets the Organisation or Individual Irrigator is seeking to create, acquire, encumber or dispose of.

Provide the updated Asset Registers if appropriate.

(i) Details of any demonstration or communication activities the Organisation intends to undertake in accordance with clause 24.

Provide a list of any proposed demonstration or communication activities.


Approved by:

Title: Chairman of the board / Managing Director

Date:

Notes for Individual Irrigators:

Please use Nil if there is no relevant material for the reporting requirements e, f, g, h or i. Information for the other reporting requirements is required.

Suggested text has [ ] around it. This is a suggestion only, and is intended to provide a guide to the level of detail we require. Please modify the text as necessary because the finalised report sent to the Department is a statement from your board. Please delete the square brackets and any text that is not required.

Suggested approaches are in italics and drafting notes in blue. Please delete italic and blue text from your actual report.

Please utilise Attachment 1, as these are necessary requirements for reporting on the expenditure of Commonwealth monies.


ANNEXURE C: EXPENDITURE REPORT

MILESTONE EXPENDITURE REPORT Project:Summary table - comparison of budget vs spend (up to and including the last completed milestone)

Organisation Contribution/

Commonwealth Funds – Total project budget

Organisation Contribution/

Commonwealth Funds – Total Spend for all Milestones

Organisation Contribution – Total project

budget

Organisation Contribution – Total Spend for all Milestones

Commonwealth Funds – Total project budget

Commonwealth Funds – Total Spend for all Milestones

Scheme ModernisationEPDM Channel Liner $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Clearing, desludge, dewater & trimming $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Bulk earthworks & filling $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Fencing including gates $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Repair & replace existing structures $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Farm outlets & meters $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Major gated control structures including telemetry $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Infill channel $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Revegetation & regeneration $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Demolition & removal of structures (incl. fencing) $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Subtotal Scheme Modernisation $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Stock & Domestic PipelinePolyethylene pipeline various sizes $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Valves, meters, structures & under channel boring $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Balance tanks, booster pumps $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Electrical infrastructure to pump stations $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Subtotal Stock & Domestic Pipeline $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Farm Rationalisation Tanks, troughs, pumps, valves & water supply reticulation for S & D

$0.00 $0.00 $0.00 $0.00 $0.00 $0.00

On farm channel, tailwater & Storage decommissioning

$0.00 $0.00 $0.00 $0.00 $0.00 $0.00

On farm erosion stabilisation works re-vegetation, pasture & fencing

$0.00 $0.00 $0.00 $0.00 $0.00 $0.00

Levelling $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Subtotal Farm Rationalisation $0.00 $0.00 $0.00 $0.00 $0.00 $0.00


Acquisition of Water Access EntitlementsTransfer of WAE for ML GSE of water to the Commonwealth

$0.00 $0.00 $0.00 $0.00 $0.00 $0.00

Subtotal Acquisition of Water Access Entitlements

$0.00 $0.00 $0.00 $0.00 $0.00 $0.00

Consultants and AdministrationSurveyor $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Project Manager $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Design Manager $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Individual Irrigator Coordinator $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Legal $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Accounting $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Administration $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Other Consultants $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Contingency $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Subtotal Consultants and Administration $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Total $0.00 $0.00 $0.00 $0.00 $0.00 $0.00

Tables for individual milestones

Milestone 2 Approved Purpose per Item 4.1

Total Actual Spend this Milestone

(F+I)

C

Organisation contribution

spent to date (invoices

received this milestone

period)

D

Organisation contribution remaining

under contract (total contract value minus

invoices)

E

Total Organisation contribution

spent (invoices) plus value remaining

under contract (D+E)

F

Commonwealth funds spent to

date(Invoices

received this milestone

period)

G

CommonwealthFunds

remaining under contract (total contract value

minus invoices)

H

Total Commonwealth

funds spent (invoices) plus

value remaining under contract

(G+H)I

Scheme ModernisationEPDM Channel Liner $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Clearing, desludge, dewater & trimming $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Bulk earthworks & filling $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Fencing including gates $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Repair & replace existing structures $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Farm outlets & meters $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Major gated control structures including telemetry $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Infill channel $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Revegetation & regeneration $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00


Demolition & removal of structures (incl. fencing) $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Subtotal Scheme Modernisation $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Stock & Domestic PipelinePolyethylene pipeline various sizes $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Valves, meters, structures & under channel boring $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Balance tanks, booster pumps $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Electrical infrastructure to pump stations $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Subtotal Stock & Domestic Pipeline $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Farm RationalisationTanks, troughs, pumps, valves & water supply reticulation for S & D

$0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00

On farm channel, tailwater & Storage decommissioning

$0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00

On farm erosion stabilisation works re-vegetation, pasture & fencing

$0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00

Levelling $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Subtotal Farm Rationalisation $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Acquisition of Water Access EntitlementsTransfer of WAE for ML GSE of water to the Commonwealth

$0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00

Subtotal Acquisition of Water Access Entitlements

$0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00

Consultants and AdministrationSurveyor $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Project Manager $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Design Manager $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Individual Irrigator Coordinator $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Legal $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Accounting $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Administration $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Other Consultants $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Contingency $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Subtotal Consultants and Administration $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00Total Milestone 2 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00


ANNEXURE D: MILESTONE AUDIT REPORT

1 The Milestone Audit Report should take the form of an ‘attest engagement’ with a level of assurance provided through an audit report that expresses an audit opinion. We have not tried to standardise the structure and wording of the audit report as each auditor will have their own requirements regarding structure and wording.

2 The Milestone Audit Report will express an opinion on whether the financial information in the Expenditure and Milestone Reports is presented fairly in accordance with the reporting requirements in the Agreement. As such, the Milestone and Expenditure Reports should contain all information required by the Department in the Agreement and any subsequent variations relating to reporting requirements, so that the opinion can be expressed to provide assurance over this information.

3 The Expenditure Report template (Annexure C) will form part of the Milestone Audit Report and will demonstrate:

(a) the total costs relating to the Project including non-Department sourced funds; and

(b) that Funds have been used for Eligible Activities.

4 The financial information will not constitute a ‘financial report’ under Australian Auditing Standards, AUS 702 and AUS 802, in that it does not contain a statement of financial performance (profit & loss) and a statement of financial position (balance sheet). As such, the Milestone Audit Report should be in the form of an ‘audit report on “other” financial information’.

5 In accordance with Australian Auditing Standard AUS 802, the scope section of a Milestone Audit Report on “other” financial information should include the following:

(a) identification (e.g. final receipt and expenditure statement) of the financial information being audited, including the name of the entity and the reporting period (total period of funded project) covered by the financial information;

(b) identification of the party responsible for the financial information (Organisation);

(c) when appropriate, identification of the party (Department) responsible for determining that the financial reporting framework used is appropriate to the needs of the addressee (e.g. directors of the Organisation) of the Milestone Audit Report;

(d) unless the addressee of the Milestone Audit Report has confirmed in writing that the financial reporting framework adopted is appropriate, a statement that the auditor expresses no opinion as to whether that framework is appropriate to the needs of the addressee of the Milestone Audit Report;

(e) a statement that the auditor has conducted an independent audit of the


financial information (e.g. final receipt and expenditure statement) in order to express an opinion thereon to the addressee;

(f) identification of the purpose for which the financial information has been prepared (e.g. for distribution to the Department to verify that the Funds have been expended for approved purposes in the Agreement), and of any express restriction on the distribution of the audit report or on those entitled to rely on it (to allow reliance by Department);

(g) a statement that the audit has been conducted in accordance with Australian Auditing Standards;

(h) in rare and exceptional circumstances, when a departure from a basic principle or essential procedure may be necessary, as indicated in Miscellaneous Professional Statement APS 1.1 “Conformity with Auditing Standards”, the statement required under paragraph (g) should provide details of the particular basic principle(s) or essential procedure(s) that has been departed from together with the justification for the departure (unlikely to be relevant);

(i) a statement that the auditor's procedures included the examination, on a test basis, of evidence supporting the financial information and, when appropriate, the evaluation of significant accounting estimates;

(j) a statement indicating that these procedures have been undertaken to form an opinion whether, in all material respects, the financial information is presented fairly in accordance with the identified financial reporting framework (requirement of the Agreement); and

(k) a statement that the audit opinion has been formed on the basis identified in (a) to (j) above.

6 We expect that the opinion section of the Milestone Audit Report will be similar to the following example:

‘In our opinion, the receipt and expenditure statement of [insert name of Organisation] for the period [insert start date] to [insert end date] is properly drawn up so as to present fairly the company’s expenditure of funds for approved purposes of the Project in accordance with the Agreement.’


ANNEXURE E: DISCONNECTION STATEMENT

Private Irrigation Infrastructure Operators Program in New South Wales

[Insert name of Irrigation Right Holder] (ABN [Insert]) (Irrigation Right Holder)

AND

[Insert name of Business Operator] (ABN [Insert]) (Business Operator)

AND

[Insert name of Landholder] (Landholder)

Each of the Irrigation Right Holder, Business Operator and Landholder represent, warrant and agree that:

1. They are party to an agreement with [Organisation name and ABN] dated [insert date] as part of the Private Irrigation Infrastructure Operators Program (Individual Irrigator agreement).

2. The ‘Activity’ detailed in, and the subject of, the Individual Irrigator agreement has been completed in accordance with the Individual Irrigator agreement.

3. The Activity included the:

a. permanent Disconnection of the Retirement Landholding from [Organisation name] system for the supply of irrigation water;

b. completion of the Individual Irrigator’s Project including completion of all eligible activities in accordance with the Individual Irrigator agreement; and

c. completion of Stock and Domestic Works on the Retirement Landholding.

4. The Retirement Landholding has, on and from the date of this statement, been permanently Disconnected.

Definitions

5. Unless otherwise noted, terms in this statement have the same meaning given in the Individual Irrigator agreement.

6. For the purposes of this statement:

‘Disconnection’ means all activities, tasks and work necessary to ensure that:

a. the Individual Irrigator’s Project has been completed in accordance with the Individual Irrigator agreement;

b. [Organisation name] channels and irrigation infrastructure are decommissioned so that they are no longer connected to the Stock and Domestic Landholding and no longer capable of being used to convey water to the Retirement Landholding for irrigation purposes;

c. the Retirement Landholding has ceased to be a landholding being supplied by [Organisation name] and all shares, water entitlements and delivery entitlements have been cancelled and / or disposed of as appropriate;

d. the Irrigation Rights have been cancelled by the Organisation;


e. [Organisation name] has Assigned to the Commonwealth Water Access Entitlements equivalent to the Individual Irrigator’s contribution towards the Agreed Water Savings;

f. all Landholder shares in [Organisation name] have been cancelled; and

g. the Retirement Landholding has been excluded from the Organisation’s area of operations,

and Disconnected has a corresponding meaning.

‘Irrigation Rights’ mean an “irrigation right’ as defined in section 4 of the Water Act and held by an Individual Irrigator as referred to in an Individual Irrigator agreement.

‘Retirement Landholding’ means the property known as ‘[insert name of property]’ located in [insert folio identifiers]:

a. that is owned by or leased or licensed to the Landholder or the Business Operator; and

b. that was located entirely within [Organisation name] area of operations,

and which is identified as such in the Individual Irrigator agreement; and

‘Stock and Domestic Works’ means:

a. the purchase and installation of stock and domestic reticulation system, troughs, tanks and associated infrastructure required for a new stock and domestic system; and

b. undertaking all construction and other work associated with the new stock and domestic system,

on the Stock and Domestic Landholding, excluding the purchase and installation of stock and domestic infrastructure and performance of work that [Organisation name] has, or a third party engaged by [Organisation name] has, completed.


ANNEXURE F: ELIGIBLE/INELIGIBLE ON-FARM ACTIVITIES

System Retirement Zone Eligible Activities

Eligible integrated on-farm activities for Individual Irrigators in the System Retirement Zone are activities that complement the proposed water delivery system upgrades and contribute to the total water saving from the Project.

Such activities may include: stock and domestic system (including necessary pipes, valves, storages, telemetry monitoring, tanks, troughs and bores); earthworks to fill decommissioned channels; removal of structures related to decommissioned channels (such as pipes, storages or channel off-takes); erosion stabilisation works in fields to be decommissioned; fencing to replace channels and structures; lasering of fields to improve water flows; sodic soil rehabilitation; small scale solar power devices where there is no alternative mains electricity; and other eligible on-farm activities (to be agreed in writing by the department on a case by case basis).

System Retirement Zone Ineligible Activities

The following activities are ineligible activities for Individual Irrigators: on-farm irrigation infrastructure (such as high/low pressure drip irrigation, soil moisture monitoring), storage, recycling systems, channel lining; on-farm meters; activities that establish new irrigation areas or expansion of existing areas (beyond their existing boundaries); activities generating improved irrigation efficiency and savings from the application of different management approaches such as crop rotation or use of new plant types requiring less water; capacity building activities; activities that have been completed or have already commenced including expenditure already incurred or committed by a Individual Irrigator; financial restructuring; infrastructure that is not a water efficiency measure or an eligible integrated on-farm activity; ongoing labour costs associated with operating new infrastructure; ongoing operational and maintenance costs (these should be recovered from customers through water charges); large scale solar power devices (unless the Individual Irrigator does not have access to mains electricity); weed control activities; conservation farming/minimum tillage machinery; relasering of fields to be decommissioned; vehicles; and computers.


THIS AGREEMENT is made on the day of

Executed by the Parties as a Deed.

SIGNED AND DELIVERED for and on behalf of the COMMONWEALTH OF AUSTRALIA represented by the Department of the Environment by a duly authorised representative

Name of authorised representative (print)

Name of witness (print)

Signature of authorised representative Signature of witness

Date Date

SIGNED SEALED AND DELIVERED by [Organisation name and ABN] in accordance with section 127(1) of the Corporations Act 2001 (Cth) by

Name of Director (print) Name of Director / Company Secretary (print)

Signature of Director Signature of Director / Company Secretary

Date Date