NOTE: This Draft Funding Agreement is provided for information purposes and is an example only. The Draft is subject to amendment by the Department of Agriculture and Water Resources before a final version is issued.
Remove ‘draft and sample’ watermark and ‘NOTE’ above prior to finalising the Funding Agreement with the Delivery Partner
FUNDING AGREEMENT
BETWEEN
COMMONWEALTH OF AUSTRALIA
as represented by and acting through
the Department of Agriculture and Water Resources
ABN 24 113 085 695(Department)
AND
[ORGANISATION’S NAME AND ABN](Organisation)
for funding under Round Five of the On-Farm Irrigation Efficiency Program [insert description of the Organisation’sactivity that is being funded e.g. for irrigator projects involving X (i.e. conversion from unimproved surface irrigation to improved surface irrigation].
Table of Contents
PARTIES
RECITALS
TERMS AND CONDITIONS
1.INTERPRETATION OF THIS AGREEMENT
2.TERM OF THIS AGREEMENT
3.OTHER AUSTRALIAN GOVERNMENT FUNDING
4.PAYMENT
5.PERFORMANCE OF THE ACTIVITY AND MANAGEMENT OF FUNDING
6.ORGANISATION’S CONTRIBUTIONS AND OTHER CONTRIBUTIONS
6A.QUALITY OF EQUIPMENT
7.ASSETS
8.WATER ACCESS ENTITLEMENTS
9.RECORDS AND AUDIT
10.REPORTING
11.TAXES, DUTIES AND GOVERNMENT CHARGES
12.AUSTRALIAN GOVERNMENT MATERIAL
13.INTELLECTUAL PROPERTY
14.CONFIDENTIAL INFORMATION
15.PROTECTION OF PERSONAL INFORMATION
16.INDEMNITY
17.INSURANCE
18.CONFLICT OF INTEREST
19.ACCESS TO PREMISES AND RECORDS
20.DELAY
21.TERMINATION WITH COSTS AND REDUCTION IN SCOPE
22.TERMINATION FOR DEFAULT
23.SUBCONTRACTING
24.ACKNOWLEDGMENT AND PUBLICITY
25.COMPLIANCE WITH LAWS AND OUR POLICIES
26.NEGATION OF LEGAL RELATIONSHIP OF EMPLOYMENT, PARTNERSHIP AND AGENCY
27.ENTIRE AGREEMENT, VARIATION AND SEVERANCE
28.SURVIVING TERMS
29.WAIVER
30.ASSIGNMENT AND NOVATION
31.CORPORATE GOVERNANCE
32.DISPUTE RESOLUTION
33.APPLICABLE LAW AND JURISDICTION
34.LIAISON AND MONITORING
35.NOTICES
36.BUILDING CODE 2013
37.AUSTRALIAN GOVERNMENT BUILDING AND CONSTRUCTION OHS ACCREDITATION SCHEME
38.COMPLIANCE WITH THE WATER MARKET, CHARGE AND TRADING RULES
39.REVIEW
40.ANIMAL ETHICS
40A.TRANSFER OF RIGHT, TITLE AND INTEREST IN LAND
40BWORK HEALTH AND SAFETY
41.INTERPRETATION
SCHEDULE
PARTIES
- COMMONWEALTH OF AUSTRALIA as represented by and acting through theDepartment of Agriculture and Water Resources ABN 24 113 085 695(Department).
AND
- [ORGANISATION’S NAME AND ABN] (Organisation).
RECITALS
A.The Commonwealth is working to improve the efficiency and productivity of on-farm irrigation water use and management. The On-Farm Irrigation Efficiency Program is part of the Sustainable Rural Water Use and Infrastructure Program.
B.The On-Farm Irrigation Efficiency Programis aimed at assisting irrigators within the southern connected system of the Murray-Darling Basin to modernise their on-farm irrigation infrastructure while returning water savings to the environment.
C.This Agreement provides for the acquisition of permanent Water Access Entitlements by the Commonwealth, where the water covered by the entitlements is generated by the eligible activities undertaken by the Organisation and its Proponents under the On-Farm Irrigation Efficiency Program.
D.Water Access Entitlements Assigned to the Commonwealth under this Agreement willbecome part of theCommonwealth Environmental Water Holdingsto bemanaged for the purpose of protecting and restoring Australia's environmental assets.
E.The Organisation is committed to improving the efficiency and productivity of on-farm water use and management and thereby helping to achieve the permanent Assignment of Water Access Entitlements to the Commonwealth through its conduct of the Activity.
F.As a result of this commitment, the Commonwealth has agreed to support the Activity and the achieving of its Objectives by providing Funding to the Organisation, subject to the terms and conditions of this Agreement.
G.The Commonwealth is required by law to ensure accountability for public money, and to be accountable for all Funds it provides.
H.The Organisation agrees to accept the Funding for the purposes, and subject to the terms and conditions, set out in this Agreement.
TERMS AND CONDITIONS
1.INTERPRETATION OF THIS AGREEMENT
1.1Clause 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
2.1The Term of this Agreement commences on the Date of this Agreement and, unless terminated earlier, expires on the Completion Date.
3.OTHER AUSTRALIAN GOVERNMENT FUNDING
3.1If 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.
3.2The Organisation must inform the Department in writing within 20 Business Days of its entry into an Environmental Arrangement.
3.3Any payments under this Agreement may be deferred or suspended by the Department in whole or in part if the Organisation has outstanding or unacquitted moneys under an Environmental Arrangement.
3.4For the purpose of clause 3.3, ‘outstanding or unacquitted moneys’ means any amounts to be repaid to the Commonwealth and which have not been expended by the Organisation in accordance with the terms of the relevant Environmental Arrangement.
4.PAYMENT
4.1Subject to:
(a)sufficient funds being available for the On-Farm Irrigation Efficiency Program, and
(b)compliance by the Organisation with this Agreement (including the invoicing requirements, if any, specified in the Schedule) and the Guidelines,
the Commonwealth will provide the Organisation with the Funding at the times and in the manner specified in the Schedule.
4.2Without limiting its rights, the Commonwealth may withhold or suspend a payment of Funds in whole or in part until the Organisation has performed, to the Department's satisfaction, the Organisation's obligations (including the completion of a particular Milestone or provision of a particular Report) under this Agreement that are preconditions to that payment of Funds.
4.3The Commonwealth may also withhold or suspend any part of a Funding payment that relates to a Proponent's Sub-Project until that Proponent has performed the part of its Sub-Project under the relevant Works Contract that is a precondition to either the payment of that Funding by the Commonwealth to the Organisation or the on-payment of that Funding by the Organisation to the Proponent.
4.4Notwithstanding any withholding or suspension of any payments of Funds under this Agreement, the Organisation must continue to perform its obligations under this Agreement, and ensure that its Proponents perform their Sub-Projects in accordance with the relevant Works Contract:
(a)to the extent that the Organisation has received Funds for the performance of such obligations or Projects;
(b)to the extent that the Proponents have received Funds for the performance of such obligations or Sub-Projects; and
(b)unless the Department agrees otherwise in writing.
4.5The Commonwealth is not required to make any payment of Funds directly to a Proponent. Unless the Department agrees otherwise in writing, the Organisation may only on-pay Funding to a Proponent (or pay Funding on behalf of a Proponent under clause 5.8, 5.8A and 5.8B) who has complied and is complying with the relevant Works Contract.
Note: Clause 5.18 explains the requirements that need to be included in the Organisation's contracts with each of its Proponent.
5.PERFORMANCE OF THE ACTIVITY AND MANAGEMENT OF FUNDING
5.1The Organisation must carry out the Activity (including the Project), and ensure that its Proponents carry out their Sub-Projects:
(a)in accordance with this Agreement (including the Schedule and each Sub-Project Type Schedule) and the Guidelines;
(b)within the Activity Period and in accordance with the relevant Milestone Schedule;
(c)diligently, effectively and to a high professional standard; and
(d)in good faith so as to achieve the Objectives specified in the Schedule.
5.2 The Organisation agrees to comply with all applicable requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in carrying out the Project and in completing each Milestone. The Organisation must also ensure that a Proponent complies with these requirements in carrying out a Sub-Project.
5.3Apart from the obligations on the Commonwealth in relation to a Water Access Entitlement Assignment Contract with a Proponent, including all things necessary to be done to complete the Water Access Entitlement Assignment Contract, the Organisation acknowledges that the Commonwealth has no obligation to perform any aspect of the Activity before, during or after the Completion Date.
5.4Where the Commonwealth, acting reasonably, is satisfied that:
(a)the Organisation does not have the capacity to manage the Funding; or
(b)a Proponent does not have the capacity to manage the part of the Funding paid or payable in respect of a Sub-Project undertaken by a Proponent,
the Commonwealth may immediately suspend, reduce or cease the release of that Funding to the Organisation on providing the Organisation with written notice of this decision and, where paragraph 5.4(b) applies, the Organisation must not pay any further amounts of Funding to that Proponent (or on behalf of a Proponent under subclause 5.8, 5.8A and 5.8B) after it receives such a notice.
5.5The Funding must be spent by the Organisation, and the Organisation must ensure that the Funding is spent by each Proponent, only:
(a)in the case of the Organisation - for the Activity in accordance with this Agreement and the Guidelines;
(b)in the case of a Proponent - for its Sub-Project in accordance with the relevant Works Contract; and
(c)in the case of interest earned on the Funds, with the Department’s prior written permission.
5.5AThe Organisation must not provide any Funding to a Proponent in respect of the Proponent's time spent performing any part of the Activity unless the activity undertaken by the Proponent is specified in the relevant Works Contract and is costed at a reasonable contractor rate for that activity.
5.6The Organisation must:
(a)ensure that the Funds are held in an account:
(i)which is an interest bearing account;
(ii)in the Organisation’s name, and which the Organisation solely controls; and
(iii)with an authorised deposit-taking institution authorised under the Banking Act 1959 (Cth) to carry on banking business in Australia;
(b)unless otherwise stated in the Schedule, ensure that the account referred to in paragraph 5.6(a) is:
(i)established solely for the purposes of accounting for, and administering, any Funding provided by the Commonwealth to the Organisation under this Agreement; and
(ii)separate from the Organisation’s other operational accounts;
(c)notify the Department, in writing, prior to the receipt of any Funds, of details sufficient to identify the account;
(d)provide written notification to the authorised deposit-taking institution at which the account is established that the Funds are funds held for the purposes of the Activity and provide a copy of that notification to the Department;
(e)provide the Department and the authorised deposit-taking institution with an authority for the Commonwealth to obtain any details relating to any use of the account;
(f)if the account changes, notify the Department in writing within 10 Business Days of the change occurring providing the Department with details of the new account and comply with paragraph 5.6(e) above in respect to the new account; and
(g)unless the Organisation is a sole director company, ensure that at a minimum two signatories, who have the Organisation’s authority to do so, are required to operate the account.
5.6AThe Organisation must ensure each Proponent:
(a)complies with requirements thatare equivalent to those imposed on the Organisation under subclause 5.6 other than the requirements specified in paragraphs 5.6(b) and 5.6(g) above; and
(b)gives the Organisation the same rights as the Department has under subclause 5.6,
where the Organisation pays Funds to that Proponent in advance (i.e. to complete the Proponent's next Milestone). If requested by the Department, the Organisation must use its authorisation to obtain information about a Proponent's bank account and immediately provide that information to the Department.
5.7Not used.
5.8The Organisation must do all things necessary to ensure that all payments from the Funds that the Organisation or a Proponent makes to third parties are correctly made and properly authorised and that the Organisation or Proponent (as the case may be) maintains proper and diligent control over the incurring of all liabilities.
5.8AThe Organisation may, with the written consent of a Proponent and the Department, use Funds (which the Organisation would otherwise be required under this Agreementto pay tothat Proponent to performits Sub-Project) to:
(a)purchase an Asset or pay for services for or on behalf of the Proponent to use inits Sub-Project; or
(b)meet a liability of a Proponent in relation to an Asset or services a Proponent is using in its Sub-Project.
5.8BThe Organisationmustnotpurchase the Asset or serviceson behalf of the Proponent or meet the liability in relation to the Asset or services unless the Organisation has first obtained the Proponent's written agreement to deduct the cost of that Asset or services from the Funds that would otherwise be paid to the Proponent.
5.9Except with the Department’s prior written approval, the Organisation must not, and must ensure that a Proponent does not, use any of the following as any form of security for the purpose of obtaining or complying with any form of loan, credit, payment or other interest:
(a)the Funds;
(b)this Agreement (or a Works Contract) or, any obligations owed under this Agreement or under the relevant Works Contract; or
(c)any Assets or Intellectual Property Rights in Activity Material.
5.10If, at any time during the Term of this Agreement the Commonwealth, acting reasonably, determines that:
(a)there remains an amount of Funding that has not been spent or legally and irrevocably committed for expenditure in accordance with this Agreement by the Organisation; or
(b)there remains an amount of Funding that has not been spent or legally and irrevocably committed for expenditure by a Proponent in accordance with the relevant Works Contract;
(c)an amount of Funds has not been spent in accordance with this Agreement or the relevant Works Contract;
(d)an amount has been paid to the Organisation by the Commonwealth that exceeds the amount of Funds due to the Organisation (taking into account any reductions to the Funds by the Commonwealth allowed under this Agreement); or
(e)an amount of Funds has been paid to the Organisation by the Commonwealth for a Proponent’s Sub-Project but the relevant Water Access Entitlement Assignment Contract has not settled within 90 Business Days of its commencement (or within such longer period agreed in writing by the Commonwealth),
then at the Commonwealth’s discretion that amount of Funds must be:
(f)refunded by the Organisation to the Commonwealth within 20 Business Days of a written notice from the Commonwealth; or
(g)otherwise dealt with as directed in writing by the Commonwealth,
or the Commonwealth may reduce further payments of Funding to the Organisation by up to that amount.
5.11If an amount is required to be repaid to the Commonwealth under this clause5 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.
5.12If:
(a)at the completion of the Activity Period the Organisation has Funds; or
(b)at the completion of a Proponent's Sub-Project, the Proponent has Funds,
(which does not include those Funds legally and irrevocably committed for expenditure in accordance with this Agreement and which fall for payment thereafter), the Organisation must seek the Commonwealth’s agreement in order for the Organisation or the Proponent to retain the Funds and use them for purposes agreed by the Commonwealth.
5.13If the Commonwealth does not agree to the Organisation or a Proponent retaining the Funds under subclause 5.12, the Organisation must return those Funds to the Commonwealth.
5.14Any 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.
5.15The Commonwealth is not responsible for the provision of any money or resources in excess of the Funds. As between the Commonwealth and the Organisation, the Organisation accepts responsibility for the provision of any additional funds which may be required to complete the Activity.
Arrangements in relation to the Project and Sub-Projects
5.16The Organisation is responsible for:
(a)undertaking the Activity (including the Project);
(b)completing the Sub-Project Types the subject of the Sub-Project Type Schedules attached to this Agreement; and
(c)entering into Works Contractswith its Proponents in respect of the Sub-Projects identified in theSub-Project Type Schedules attached to this Agreement.
Arrangements between the Organisation and its Proponents
5.17The Organisation mustonly provide Funding for a Proponent’s Sub-Project if:
(a)the Proponent:
(i)has the capacity to enter a legally binding contract with the Organisation in respect of the Sub-Project; and
(ii) eitherholds the relevant Water Access Entitlements or has the capacity to enter into the relevant Water Access Entitlement Assignment Contract;
(b)the Proponent's Sub-Project (and the Funding to be provided to a Proponent) is identified in the Sub-Project Type Schedule, or otherwise approved in writing by the Department;
(c)the Proponent has entered into a Works Contract that satisfies all requirements under clause 5.18 of this Agreement with the Organisation in repect of the relevant Sub-Project; and
(d)theProponent has entered into a Water Access Entitlement Assignment Contractthat satisfies all requirements under clause 8 of this Agreement and that Water Access Entitlement Assignment Contract has settled so that the Assignmentof the relevant Water Access Entitlements has been completed.
5.18The Organisation must ensure that itsWorks Contractwith each of its Proponents:
(a)is consistent with, and gives effect to, the Organisation’s obligations in this Agreement;
(b)contains provisions that meetthe requirements specified in Annexure A;
(c) gives the Commonwealth or the Department (as the case may be) the same rights in respect of a Proponent, as the Commonwealth or the Department has in respect of the Organisation under this Agreement, in relation to:
(i)the disclosure of Commonwealth Confidential Information – see clause 14;