Interim Great Artesian Basin Infrastructure Investment ...€¦ · Web viewFailure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement

Funding for Works Deed- Bore Rehabilitation

made at Brisbane on the day of 20__

Between State of Queensland acting through the Department of Natural Resources, Mines and Energy ABN 59 020 847 551

(Department)

[insert name and ACN/ABN of Landholder]

(Landholder)

BackgroundA. As part of the Interim Great Artesian Basin Infrastructure Investment Program (IGABIIP), financial

assistance is available for eligible landholders to undertake water efficiency projects which will result in a saving of flow from the Great Artesian Basin.

B. The purpose of IGABIIP is to recover water and maintain water pressure within the Great Artesian Basin and to advance the sustainable management of the Great Artesian Basin water resource.

C. The Landholder has applied for financial assistance under IGABIIP in accordance with the Guidelines to do the Works.

D. The Department has relied on the information in the Landholder’s Submission to determine that the Landholder is eligible for financial assistance under IGABIIP and will meet the program’s objectives to save flow from the Great Artesian Basin.

E. The Department has approved the Landholder’s Submission and has agreed to provide financial assistance to the Landholder to carry out the Works, subject to the terms and conditions of this deed.

F. The Landholder wishes to undertake the Works and agrees to undertake the Works in accordance with the Guidelines and this deed.

G. The parties wish to record the terms and conditions under which the Department has offered and the Landholder has accepted financial assistance in the form of the Government Funding, in this deed, which consists of:

(a) this cover page and the signing page;

(b) Schedule 1 – Deed detail;

(c) Schedule 2 – Terms and condition;

(d) Annexure 1 – Landholder’s Submission;

(e) Annexure 2 – Form IGABIIP-002; and

(f) Annexure 3 - Guidelines.

H. Capitalised words and phrases have the meanings specified in clause 16 of Schedule 2.

In-house LegalOP201701306 / DNRME- Great Artesian Basin Sustainability Initiative - IGABIIP, February 2018

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Works Deed - IGABIIP

Schedule 1 – Deed details

Item 1 Party details

Department:Party Name: State of Queensland acting through the Department of Natural

Resources, Mines and EnergyABN: 59 020 847 551Street Address: 203 Tor Street, Toowoomba QLD 4350

Contact Name: [insert details]

Contact Postal Address: 203 Tor Street, Toowoomba QLD 4350

Contact Telephone: (07) 4529 1355

Contact Facsimile: (07) 4529 1556

Contact Email (notices cannot be given by email):

[email protected]

Landholder:Party Name: [insert details - which can be taken from Section 10.0 of the approved

Landholder Submission located in Annexure 1]

ABN/ACN: [ACN: insert ACN and ABN for a company, if there is no ACN delete and just insert ABN: ]

Street Address: [insert details]

Contact Name: [insert details]

Contact Postal Address: [insert details]

Contact Telephone: [insert details]

Contact Facsimile: [insert details]

Contact Email (notices cannot be given by email):

[insert details]

Item 2 Works Period: (clause 16.1)

Commencement Date: The date this deed is executed by the last party to sign.

Works Period: Starts on the Commencement Date and ends on the Program Completion Date.

Program Completion Date: 29 March 2019

Item 3 Bore details : (clause 16.1)

Registered Number: [insert details of registered number of the bore on which piping work is to be completed - this is taken from section 1 of the approved Landholder Submission in Annexure 1]

Name: [insert name of Bore if known or not applicable]


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Total Depth of Bore: [insert details]

Item 4 Property: (clauses 3.5 and 16.1)

Property Name: [insert below the details of the property on which the Works are located. This is taken from Section 1.3 of the approved Landholder Submission located in Annexure 1. If name not known insert "not applicable" otherwise complete by inserting name.]

Real property description Lot [insert details] on [insert plan details]

Item 5 Driller Details: (clauses 3.4 and 16.1)

Name: [insert position]

ABN/ACN: [insert details]

Registration No.: [Class 3 Driller Registration No.]

[insert]

Address: [insert details]

Telephone: [insert details]

Facsimile: [insert details]

Email: [insert details]

Item 6 Cost of Works: (clause 4.1)

Works Total cost

6.1 Landholder’s estimate of cost of the Works (incl GST) $ [taken from the approved Landholder Submission located in Annexure 1]

6.2 Maximum Government Funding available towards cost of the Works (incl GST)

$ [being an amount as determined by the Department after approval of application (up to 90% of amount in item 6.1]

6.3 Department’s proportion of actual cost of the Works (incl GST) [being a percentage up to 90% of the actual total costs of the Works as evidenced by invoices]%

6.4 Landholder’s proportion of actual cost of Works (incl GST) [being a percentage of no less than 10% of the actual total costs of the Works as


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Works Total cost

evidenced by invoices]%

Item 7 Amount of Government Funding: (clause 4.1(a))

The amount of the Government Funding available for the Works will be the lesser of:(a) the value shown in Item 6.2 above; and(b) the value as determined using the proportion shown in Item 6.3 above of the actual cost of the Works

as evidenced by invoices.Provided always that the Landholder will also contribute the value determined using the proportion shown in item 6.4 above of the actual cost of the Works as evidenced by invoices.

Item 8 Insurance: (clause 3.3)

Works insurance [$insert value of Works as noted in the Landholder/contractors contract]

During the Works Period

Public Liability covering legal liability to third parties for bodily injury or property damage

[$10,000,000.00] During the Term

Workers’ Compensation As required by law During the Term

Assets covering loss or damage for its full reinstatement or replacement cost

During the Term

Professional indemnity appropriate and relevant to the conduct of the services provided by contractor

[$1,000,000.00 or not applicable] During the Term and at least 6 years after the Expiry Date

Item 9 Special Conditions: (clauses 2 and 16.1)

Nil

IMPORTANT: Special Conditions take precedence over the terms of this deed. Legal advice should be sought on any Special Conditions that are inconsistent with the terms of the deed or which are significant (e.g. involve intellectual property, warranties, indemnities or liability).


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Schedule 2 – Terms and conditions

1. PrecedenceWhere any inconsistency exists between:

(a) the Special Conditions;

(b) this Schedule 2;

(c) Schedule 1 (except the Special Conditions); or

(d) any other schedules or annexures of this deed,

the provisions will take precedence in that order to the extent necessary to resolve the inconsistency.

2. Special ConditionsThe parties agree to be bound by any Special Conditions.

3. Landholder’s obligations3.1 Works and Approvals

The Landholder must:

(a) at its cost, carry out or ensure the Works are carried out in accordance with:

(i) the Landholder’s Submission shown in Annexure 1;

(ii) the terms and conditions of this deed;

(iii) all applicable laws and regulations including the Work Health and Safety Act 2011 and relevant building codes, including obtaining and maintaining any approvals and consents required to undertake the Works;

(iv) the standards of professional care and diligence of the industry relevant to the Works;

(b) ensure that the Works are undertaken by suitably qualified persons;

(c) appoint a suitably qualified Driller to undertake the Works in accordance with the Landholder’s Submission, and where the Department is not satisfied with the skills of the Driller, appoint a new suitably qualified Driller at the request of the Department;

(d) comply with the requirements of all Acts of the Parliaments of the Commonwealth and the State of Queensland and with the requirements of all ordinances, regulations, by-laws, orders and proclamations made or issued under any such Act or ordinance and with the lawful requirements of public, local or other authorities in any way affecting or applicable to this deed;

(e) obtain all necessary consents and approvals and give all required notices under any applicable laws or regulations. Such consents, approvals or notices may be required for, by way of example but not limited to, development approval, crossing public roads, vegetation management and cultural heritage;

(f) obtain the approval of all neighbouring landholders who access a water supply from the Bore as evidenced in the Landholder’s Submission shown in Annexure 1;

(g) provide a copy of any permit, approval or consent required to undertake the Works, including any development approval, if applicable, to the Department within 28 days after signing this deed, or such extended period as agreed in writing by the Department, and in any event before commencing the Works;


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(h) comply with the Department’s reasonable requests, directions and requirements, to the Department’s satisfaction within a reasonable period and in any event within 14 days from receipt of such request, direction or requirement;

(i) communicate with, report and provide information to the Department’s Contact as reasonably required by the Department;

(j) contract directly with the Driller and any other contractor required to undertake any part of the Works and as such the Landholder acknowledges and agrees that:

(i) it may be the principal contractor for a construction workplace pursuant to the Work Health and Safety Act 2011 (the Act) and that it must comply with the obligations of the principal contractor as specified in the Act;

(ii) it will ensure that each contractor complies with its contract;

(iii) it will provide a copy of the signed contract to the Department within 28 days after signing this deed, or such extended period as agreed in writing by the Department, and in any event before commencing the Works; and

(iv) engaging a contractor will not relieve the Landholder from any liability or obligation under this deed. The Landholder is and remains liable under this deed for the acts or omissions of any contractor engaged at any time during the term of this deed in relation to the Works; and

(k) complete or ensure the Works are completed by the Program Completion Date.

3.2 Verification of CostsThe Landholder acknowledges and agrees:

(a) the Department may from time to time contact and request further information from any supplier or party (including contractors) who has issued an invoice or receipt to the Landholder, for works or items that forms part of or is incidental to the Works;

(b) to authorise the parties specified in clause 3.2(a) to discuss any matters and release any information relating to any invoices or receipts for works or items that form part of or are incidental to the Works,

so that the Department may verify the validity of the costs of the Works.

3.3 Insurance(a) The Landholder must or must ensure its contractors, including where relevant the Driller, effect

and maintain, the types of insurance in the amounts and for the duration specified in Item 8 of Schedule 1 with an insurer and on terms approved by the Department (such approval not to be unreasonably withheld).

(b) The Landholder must ensure the above policies cover the acts and omissions of the Landholder, its contractors, sub-contractors, employees, licensees and invitees.

(c) The Landholder must lodge with the Department:

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

(ii) evidence of each policy’s renewal before its anniversary, if applicable.

3.4 Driller(a) The Landholder will be responsible for:

(i) engaging and contracting with the Driller and ensure that they are competent and have the necessary skills to carry out the Works.


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(ii) ensuring the Driller undertakes the Works in accordance with the Landholder’s Submission.

(b) The Landholder acknowledges that:

(i) despite contracting the Driller to undertake the Works on behalf of the Landholder, this will not relieve the Landholder from any liability or obligation under this deed;

(ii) it will enter into a formal contract with the Driller which is consistent with this deed, and that the terms and conditions of the contract with the Driller will, at a minimum, require the Driller to comply with those terms of this deed relating to the Works, including (but not limited to clauses 3.1(a) , 3.1(b), 3.1(d), 3.1(h), 3.1(i) ,3.1(k) and 3.3.

3.5 Access to Property(a) The Landholder agrees to provide to the Department and its Representatives access to the

Property for the following periods:

(i) during the Works Period; and

(ii) for a period of five years after completion of the Works.

(b) The Department will access the Property for the purposes of assessing the impact of IGABIIP and to assess the Works.

(c) The Department will, when accessing the Property with respect to the Works, comply with all rules, directions and procedures including those relating to security and to workplace health and safety in effect at the Property.

(d) The Department will provide the Landholder 72 hours’ notice where it intends to access the Property.

(e) Without limiting the Department’s rights under this deed, the Landholder acknowledges that the Department may conduct an audit of the Works at any time specified in clause 3.5(a).

3.6 Sale Property(a) The Landholder must notify the Department in writing of any sale contracts or other proposed

transfer of the Property (or any part of it on which the Works are undertaken) where such transfer is proposed to be affected within the period that the Department has a right of access pursuant to clause 3.5.

(b) If the Landholder transfers the Property (or any part of it on which the Works are undertaken), the Landholder must have the transferee sign a document under which the transferee agrees to be bound by the terms of this document and in particular clauses 3.5(a)(ii), 3.5(b) and 3.5(e) as if it were named as Landholder in this deed.

(c) Where the Property is sold or transferred prior to the Expiry Date, the Landholder will not be entitled to receive any part of the Government Funding.

4. Department’s obligations 4.1 Administration and Disbursement of Government Funding

(a) Subject to the terms of this deed, the Department will:

(i) administer the payment of the Government Funding and will provide the financial assistance for:

(A) expenses relating to Eligible Items incurred by the Landholder for the Works undertaken within the Works Period; and

(B) an amount up to the maximum of the Government Funding value as calculated in Item 7 of Schedule 1;


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(ii) be authorised to treat the receipt of a notice of completion of the Works as a request to amend the water licence pursuant to clause 4.4, and further to amend the water licence relating to the bore so that all water taken under that licence is distributed by the valves and pipes to tanks and troughs without the use of bore drains; and

(iii) be responsible only for its own activities and that of its Representatives in accordance with clauses 4.1(a)(i), 4.1(a)(ii) and clause 3.5.

4.2 Conditions of Government FundingThe Landholder acknowledges and agrees that:

(a) disbursement and receipt of the Government Funding is subject to and conditional upon:

(i) the Works being completed in accordance with the Landholder’s Submission and the Guidelines;

(ii) the Landholder providing the Department with a copy of all relevant, permits, approvals and consents as specified in this deed and in particular in clause 3.1(g);

(iii) completion of the Works by or before the Program Completion Date; and

(iv) the Landholder complying with the terms and conditions of this deed.

4.3 Disbursement(a) No part of a Disbursement will be paid for Ineligible Items.

(b) The Department will not:

(i) make payment of any part of the Government Funding for expenditure incurred, or for any part of the Works undertaken prior to the Commencement Date, unless otherwise agreed by the Department in writing or as otherwise authorised under the Guidelines . Any part of the Works undertaken prior to the Commencement Date will be borne by the Landholder at its sole expense and will not be eligible for reimbursement from any part of the Government Funding; and

(ii) make any payment of any part of the Government Funding for expenditure after the Program Completion Date.

(c) The Department may in its absolute discretion, withhold payment of part or all of the Government Funding until the Landholder has:

(i) submitted to the Department, to the Department’s satisfaction:

(A) the Form IGABIIP-002 including all certifications and reports listed in the Form IGABIIP-002; and

(B) all correctly rendered tax invoices evidencing the Works; and

(ii) complied in full with the requirements of this deed, the Form IGABIIP-002 and the Guidelines; and

(iii) the Department is reasonably satisfied that the Landholder is not otherwise in breach of this deed.

(d) The Department may at its absolute discretion request further evidence, or undertake an inspection of the Property in accordance with clause 3.5, before a Disbursement is made under clause 4.1(a).

(e) The Department is not liable and is released from any obligation to pay any part of the Government Funding where the Works are not completed in accordance with the Landholder’s Submission, the Guidelines or this deed.

(f) Any payment to the Landholder by the Department:In-house LegalOP201701306 / DNRME- Great Artesian Basin Sustainability Initiative - IGABIIP, February 2018

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(i) is not an admission or acceptance by the Department that the Landholder has complied with this deed;

(ii) will not release the Landholder of its obligations under this deed; and

(iii) is not an admission or acceptance by the Department that the Works are completed to the standard required under this deed or at law.

4.4 Acknowledgment of notificationThe Department acknowledges and agrees that on receipt of the Form IGABIIP-002 from the Landholder that the Department has been notified that the Bore has been controlled.

4.5 No Warranty(a) The Landholder acknowledges and agrees that it has relied on its own investigations with

respect to the Works and the contractors engaged by the Landholder to undertake the Works.

(b) The Department has made no representation with respect to the quality, fitness or suitability of Works and in particular has not provided an estimate or guarantee of the flow or pressure to be expected from the rehabilitated bore or works associated with rehabilitating or replacing the Bore.

5. Costs(a) The Landholder is liable for:

(i) the full cost of the Works;

(ii) all costs incurred where the bore depth is increased beyond the Total Depth of the Bore. These costs will not be paid from the Government Funding;

(iii) the full cost of engaging any contractor, including the Driller;

(iv) unless otherwise provided, all additional costs not expressly mentioned in the Landholder’s Submission, where such costs are necessary for the satisfactory completion of the Works by or before the Program Completion Date; and

(v) unless otherwise specified, all fees in connection with any consents or approvals of any local authority, other authority or person.

(b) Except as otherwise provided in this deed, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this deed.

6. Confidentiality6.1 Confidential Information

Subject to clause 6.2, a party must not:

(a) disclose the other party’s Confidential Information to a third party; or

(b) use the other party’s Confidential Information other than for the purpose of performing this deed.

6.2 ExceptionsA party may disclose the other party’s Confidential Information:

(a) with the other party’s prior written consent;

(b) to a professional adviser, financial adviser, banker, financier or auditor if that person is obliged to keep the information disclosed confidential;


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(c) to any of its Representatives who are bound to keep the information confidential and to whom it is necessary to disclose the information;

(d) to comply with the law, or a requirement of a regulatory body (including any relevant stock exchange);

(e) to the extent necessary to enforce its rights or defend a claim or action under this deed; and

(f) where that party is the Department:

(i) to the responsible Minister administering the Department and their personal and departmental advisers;

(ii) in response to a request by the Parliament or a Committee of the Parliament of the State of Queensland;

(iii) any Commonwealth department, Queensland Government department, agency, authority or Minister; or

(iv) where disclosure is required to be made in accordance with established governmental policies, procedures or for public accountability purposes.

6.3 Breach of confidentiality(a) If a party becomes aware of a suspected or actual breach of this clause 6, the party will

immediately notify the other party and take reasonable steps required to prevent or stop the suspected or actual breach.

(b) The parties acknowledge and accept that damages will be an inadequate remedy for a breach of this clause 6.

6.4 Return of Confidential InformationThe Receiver will return or destroy (at the Discloser’s discretion) material containing Confidential Information when it is no longer required by the Receiver, or when otherwise directed by the Discloser.

6.5 Landholder’s undertaking(a) The Landholder must make every reasonable effort to ensure that its Representatives and

volunteers are aware of and comply with the obligations of confidentiality in this clause 6.

(b) The Department may, at any time, require the Landholder to arrange for its Representatives and volunteers engaged in the performance of the Works, to give written undertakings in a form reasonably required by the Department relating to the non-disclosure of Confidential Information under this clause 6.

6.6 Disclosure of informationThe Landholder agrees that the Department may disclose the following information (including, without limitation, the Landholder’s confidential information), to third parties or advisers:

(a) some or all of the information contained in the Landholder’s Submission or this deed, to publicise the financial assistance provided and programs of the Department; or

(b) the Landholder’s general details and information concerning the Works, to publicise the financial assistance provided and programs of the Department; or

(c) any information, for the purposes of undertaking an audit or an evaluation of this deed or this program.

7. Privacy and Personal Information


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(a) This clause 7 applies where this deed amounts to a “service arrangement” under the Information Privacy Act 2009 (Qld).

(b) For the purpose of this clause 7, Personal Information has the meaning given in the Information Privacy Act 2009 (Qld) (IPA).

(c) If the Landholder collects or has access to Personal Information as defined under IPA in order to undertake the Works, the Landholder must comply with Parts 1 and 3 of Chapter 2 of IPA in relation to the discharge of its obligations under this deed as if the Landholder was the Department.

8. Liability and indemnity8.1 Release

The Landholder releases to the full extent permitted by law, the Department and its Representatives from all actions, claims, proceedings or demands and in respect of any loss, death, injury, illness or damage (whether personal or property, and whether special, direct, indirect or consequential, including consequential financial loss) arising from or in connection with the Works or this deed.

8.2 Limitation of liabilityThe liability of the Department under or in connection with this deed is limited in aggregate to the Government Funding as calculated in Item 7 of Schedule 1.

8.3 No liability for consequential or indirect lossThe Department and its Representatives will not in any circumstances (including for negligence) be liable for any loss of revenue, loss of profit, loss of anticipated savings or business, loss of opportunity (including opportunity to enter into or complete arrangements with third parties), loss of data or goodwill, loss of reputation or any indirect or consequential loss whether arising in contract, tort (including negligence) or otherwise, in connection with the Works or this deed.

8.4 Indemnity(a) The Landholder is liable for and indemnifies the Department and its Representatives against all

liability, loss, costs and expenses (including any actions, claims, proceedings or demand brought by any third party, and any legal fees, costs and disbursements on a solicitor and own client basis) arising from or incurred in connection with:

(i) the Works;

(ii) any default by the Landholder or the Landholder’s Representatives under this deed;

(iii) any unlawful, wilful or negligent act or omission of the Landholder, the Landholder’s Representatives or any person for whose conduct the Landholder is liable;

(iv) personal injury (including sickness and death) or property damage or loss in connection with the performance (or attempted or purported performance or non-performance) of this deed or a breach of this deed by the Landholder; or

(v) any infringement or alleged infringement of any IP Rights or Moral Rights.

(b) The indemnity granted in clause 8.4(a) is in addition to and not exclusive of any other remedies the Department may have against the Landholder at law.

8.5 No expense requiredIt is not necessary for the Department to incur expense or to make a payment before enforcing a right of indemnity conferred by this deed.

9. GST


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(a) Words defined in the GST Law have the same meaning in this clause 9.

(b) If a party is required under this deed to reimburse or pay to another party an amount calculated by reference to a cost, expense, or an amount paid or incurred by that party, the amount of the reimbursement or payment will be reduced by the amount of any input tax credits to which that party (or an entity on whose behalf the party is acting) is entitled in respect of any acquisition relating to that cost, expense or other amount.

(c) If GST is payable by an entity (Supplier) in relation to any supply that it makes under or in connection with this deed, the parties agree that:

(i) any consideration (including the value of any non-monetary consideration) provided for that supply under or in connection with this deed other than under this clause 9.1(c) (Agreed Amount) is exclusive of GST;

(ii) an additional amount will be payable by the party providing consideration for that supply (Receiver) equal to the amount of GST payable by the Supplier on that supply;

(iii) the additional amount is payable at the same time as any part of the Agreed Amount is to be first provided for that supply and the Supplier will provide a tax invoice to the Receiver in respect of that supply, no later than that time; and

(iv) to the extent, if any, that any consideration (or part thereof) is specified in this deed to be inclusive of GST, that consideration (or the relevant part) will be excluded from the Agreed Amount for the purposes of calculating the additional amount under clause 9.1(c)(ii).

10. Good faith and Dispute resolution(a) The parties agree to cooperate with each other in the performance of this deed and in the

event of a dispute or claim arising, to negotiate in good faith a resolution of the dispute.

(b) A dispute about this deed arises when a party gives written notice of the dispute to the other party containing adequate details of the dispute.

(c) The parties agree that any dispute arising must be dealt with by a process of escalation through each parties’ respective management hierarchy within 14 days of the notice of dispute.

(d) The Landholder must continue to perform its obligations under this deed despite the existence of a dispute unless it obtains the Departments prior written consent.

(e) The parties must comply with this clause 10 before seeking any relief in any court tribunal, except for urgent relief in the form of judgment from a court.

11. Intellectual Property(a) Nothing in this deed affects ownership of Background IP.

(b) All rights in and title to the Material and any reports produced by or for the Landholder will vest, upon creation, in the Landholder.

(c) The Landholder grants to the Department a non-exclusive, worldwide, perpetual, irrevocable, royalty-free licence (including a right to sub-license) to use, communicate, reproduce, publish, adapt and modify:

(i) Material;

(ii) the Landholder’s Background IP; and

(iii) the reports (including photographs) for the Department’s non-commercial purposes.

(d) The Department grants to the Landholder a non-exclusive, non-transferable, royalty-free licence to use the Department’s Background IP solely


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for the purposes of carrying out the Works and exercising its rights in the Material (insofar as the Department’s Background IP forms part of the Material).

(e) The Landholder will do all things necessary (including obtaining consents) to ensure:

(i) the vesting of the Material and reports produced by or for the Landholder in accordance with clause 11.1(c); and

(ii) the licensing of the Material and reports produced by or for the Landholder in accordance with clause 11.1(d).

12. Term and Termination12.1 Term

This deed binds the parties from the date this deed is executed by the last party to do so and takes effect from the Commencement Date and continues until the Expiry Date, unless terminated earlier in accordance with this deed (Term).

12.2 Termination for convenience

(a) The Department may in its absolute discretion, at any time, by written notice, terminate this deed in whole or in part without prejudice to any other rights, including for:

(i) a machinery of government change which results in monies no longer being made available for IGABIIP; or

(ii) if no funding is provided by the Australian Federal Government or the State Government for IGABIIP.

(b) The Landholder acknowledges that the Department relies upon an appropriation of funding from the Australian Federal Government and the Queensland State Government in order to pay the Government Funding. The Department will use reasonable endeavours to ensure the Government Funding is available, but the Department will not be in default or liable for any losses if it does not make a payment due to an absence or delay of funding. If the Department does not make a payment for this reason, the Department must notify the Landholder.

(c) On receipt of a notice of termination the Landholder must take all available steps to minimise loss resulting from that termination.


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12.3 Termination for breach(a) The Department may terminate this deed by written notice with immediate effect if the

Landholder notifies the Department that it is unable or unwilling to commence or continue with the Works;(i) breaches a term of this deed which is not capable of being remedied;

(ii) breaches a term of this deed which is capable of being remedied and fails to remedy that breach within 30 days after receiving notice requiring it to do so;

(iii) fails to provide evidence of its insurance or its contractors insurance as specified in clause 3.3;

(iv) fails to provide evidence of any permit, approval or consent required to undertake the Works, including any development approval as specified in clause 3.1(g);

(v) admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts;

(vi) becomes subject to any form of external administration;

(vii) enters into an arrangement with the Landholder’s creditors or otherwise takes advantage of any laws in force in connection with insolvent debtors;

(viii) is wound up, voluntarily or involuntarily; or

(ix) is no longer eligible pursuant to the Guidelines to continue receiving the Government Funding.

(b) For the avoidance of doubt, clause 8.3 applies to any termination of this deed under clauses 12.2 or 12.3.

(c) In the event of termination or expiration of this deed:

(i) the Department will have no further obligation to pay the Government Funding to the Landholder;

(ii) the Landholder must take all action necessary to minimise further expenditure relating to the Works and take all available steps to minimise loss resulting from that termination.

12.4 Pre-existing rights and survival(a) Termination in accordance with this clause 12 is without prejudice to any rights of either party

under this deed existing at the date of termination.

(b) The following clauses survive expiration or termination of this deed for any reason:

(i) Access to Property (clause 3.5);

(ii) Confidential Information (clause 6);

(iii) Privacy and Personal Information (clause 7);

(iv) Liability and Indemnity (clause 8);

(v) Good faith and Dispute resolution (clause 10);

(vi) Intellectual property (clause 11);

(vii) Survival (clause 12.4(b)); and

(viii) General (clause 15).

13. Notices


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Each communication (including each notice, consent, approval, request and demand) in connection with this deed to be given by either party to the other:

(a) must be in writing;

(b) must be signed by the party making it (or by a person duly authorised by that party);

(c) must be addressed in accordance with Item 1 of Schedule 1 or as otherwise notified from time to time;

(d) must be delivered to that address by hand, or posted by pre-paid post to the address, or sent by facsimile transmission to the number of the addressee, in accordance with clause 13.1(c);

(e) is taken to have been received by the addressee:

(i) where sent by pre-paid post – on the fifth day after the date of posting;

(ii) where sent by facsimile transmission –upon the sender’s facsimile machine producing a transmission report that the facsimile was successfully sent to the addressee’s facsimile number.;

(iii) where hand delivered – on delivery,

but if the communication is taken to have been received on a day that is not a Business Day or later than 5.00 pm on a Business Day, the communication is taken to have been received at 9.00 am on the next Business Day.

14. Trustee ProvisionsIf the Landholder enters into this deed as the trustee of any trust ("the Trust"), then the Landholder:

(a) warrants to the Department that:

(i) the Trust is created validly and is in existence;

(ii) the Landholder is the sole trustee of the Trust and is appointed validly;

(iii) the Landholder has full and free power to enter into this deed and to perform all of the obligations imposed upon it under this deed; and

(iv) this deed has been authorised, signed and delivered by the Landholder and is a valid, legal and binding instrument and that if any consent or approval is required to the entering into of this deed or the performance by the Landholder of its obligations under this deed, it has been obtained;

(b) accepts and undertakes the personal liabilities under this deed and the observance, performance and fulfilment of all obligations on behalf of the Landholder;

(c) will not, prior to the satisfaction of all liabilities of the Landholder under this deed, personally and/or by the Trust exercise in its own favour any right of indemnification, lien or charge to which it may be entitled under, or in respect of the assets of, the Trust;

(d) must hold any of the assets of the Trust (which at any time are in the hands of the Landholder free of their Trust character by virtue of the exercise or purported exercise of any such right of indemnification, lien or charge) on trust for the Department to the extent to which any liabilities of the Landholder under this deed have not been satisfied;

(e) agrees that if, at any time prior to the satisfaction of any liability of the Landholder under this deed, the Landholder ceases for any reason to be the sole trustee of the Trust, the Landholder will procure any new or additional trustee of the Trust to sign in favour of the Department such agreements relating to this deed as the Department may reasonably require, including without limitation a covenant on the same terms as those contained in this clause 14; and


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(f) agrees that if, at any time prior to the satisfaction of any liability of the Landholder under this deed, the Trust is terminated or for any reason ceases to exist, the Landholder will immediately give written notice to the Department.

15. General15.1 Entire deed

To the extent permitted by law, in relation to its subject matter, this deed embodies the entire understanding of the parties and constitutes the entire terms agreed by the parties and supersedes all previous communications, negotiations, arrangements and agreements between the parties.

15.2 No relationshipNothing contained in this deed will be taken as giving rise to any employment, agency, partnership or joint venture relationship between the parties.

15.3 No representation or reliance(a) Each party acknowledges that no party (nor any person acting on a party’s behalf) has made

any representation or other inducement to it to enter into this deed except for representations or inducements expressly set out in this deed.

(b) Each party acknowledges and confirms that it does not enter into this deed in reliance on any representation or other inducement by or on behalf of any other party, except for representations or inducements expressly set out in this deed.

15.4 AssignmentThe Landholder must not assign, novate or subcontract the whole or any part of this deed without the prior written consent of the Department.

15.5 AmendmentsThis deed may only be varied by a document signed by or on behalf of each party provided that any variation does not exceed the original scope of the deed.

15.6 Further acts and documentsEach party must promptly do all acts and deliver all documents (in form and content reasonably satisfactory to that party) required by law or reasonably requested by the other party to give effect to this deed.

15.7 Waiver(a) Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or

enforcement of, a right, power or remedy provided by law or under this deed by a party does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under this deed.

(b) A waiver or consent given by a party under this deed is only effective and binding on that party if it is given or confirmed in writing by that party.

(c) No waiver of a breach of a term of this deed operates as a waiver of another breach of that term or any other term of this deed.

15.8 SeveranceAny provision in this deed which is invalid or unenforceable is to be read down if possible, so as to be valid and enforceable. If that is not possible, the provision must, to the extent that it is capable, be severed to the extent of the invalidity or unenforceability without affecting the remaining provisions.

15.9 Continuing obligationIn-house LegalOP201701306 / DNRME- Great Artesian Basin Sustainability Initiative - IGABIIP, February 2018

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Each indemnity in this deed is a continuing obligation, separate and independent from the other obligations of the parties, and survives termination, completion or expiration of this deed.

15.10 Governing law and JurisdictionThis deed is governed by and will be construed according to the law applying in Queensland and the parties hereby submit to the non-exclusive jurisdiction of the courts in Queensland.

15.11No fetteringNothing contained in this deed will fetter, act as an estoppel or as a deed about the exercise of discretion or the making of a decision or subordinate legislation under any law by the State of Queensland and its Representatives.

15.12 WarrantyEach party warrants that:

(a) it has relied on its own enquiries and has not entered into this deed in reliance on or as a result of any representation, promise, statement, conduct or inducement to that party by or on behalf of the other party otherwise than as set out in this deed;

(b) the matters set forth in the Background are true and correct; and

(c) it is aware that each other party is relying upon these warranties in executing this deed.

16. Definitions and interpretation16.1 Definitions

In this deed:

Asset means any infrastructure or equipment forming part of the Bore created or otherwise brought into existence wholly or in part pursuant to this deed and forming part of the Works.

Background IP means IP Rights which are made available by a party for the purpose of carrying out this deed and that are:

(a) in existence at the Commencement Date; or

(b) brought into existence after the Commencement Date other than as a result of the performance of the Works.

Bore means the bore identified at Item 3 of Schedule 1.

Business Day means a day that is not a Saturday, Sunday or a public holiday in Brisbane.

Commencement Date means date the commencement date specified in Item 2 of Schedule 1.

Commonwealth means the Commonwealth Government of Australia.

Confidential Information means all information, trade secrets and knowledge of or disclosed by a party (Discloser) to another party (Receiver) that:

(a) is by its nature confidential;

(b) is designated or marked by the Discloser as confidential; or

(c) the Receiver knows or ought to know is confidential,

and includes the terms of this deed and any information provided or received by a party pursuant to this deed, but does not include information which:

(d) is or becomes public knowledge other than by breach of this deed or any other confidentiality obligation; or


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(e) is independently developed by a party while having no knowledge of or access to the other party’s Confidential Information.

Contact means the contact person for each party specified in Item 1 of Schedule 1.

Disbursement means payment of the Government Funding by the Department.

Driller means a person who is accredited through the Australian Drilling Industry Association and holds a current Queensland class 3 water bore driller’s licence. The details of the Driller are shown in Item 5 of Schedule 1.

Eligible Items means the cost or expenditure of items that are part of the Works, as determined by the Department at its sole discretion (and includes, but is not limited to those items specified in the Guidelines) and excludes Ineligible Items.

Expiry Date means the earlier of:

(a) the Program Completion Date; and

(b) the date that Form IGABIIP-002 has been provided to the Department and all obligations under this deed are complied with.

Form IGABIIP-002 means the form shown in Annexure 2 titled ‘Completion of Works – Compliance Certificate & Disbursement of Government Funding’ together with the items required to be attached to the form as listed in Checklist 1 for Bore Rehabilitation Projects or Checklist 2 for Controlled Watering System Works, as applicable.

Government Funding means that part of the financial assistance available under IGABIIP that is applied as a reimbursement and paid to the Landholder by the Department upon successful completion of the Works and is calculated in accordance with Item 7 of Schedule 1.

GST means a goods and services tax or any similar tax, levy or impost imposed by the Commonwealth of Australia.

GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Guidelines means the guidelines for IGABIIP and named IGABIIP Client Guidelines February 2018 as amended from time to time as specified at https://www.business.qld.gov.au/industries/mining-energy-water/water/rural-assistance/igabiip and a copy of which is annexed at Annexure 3.

IGABIIP means the Interim Great Artesian Basin Infrastructure Investment Program, as a joint initiative between the Department and the Commonwealth of Australia.

Ineligible Items means the cost or expenditure on items that are not Eligible Items which the Landholder cannot claim as part of the Government Funding (and includes, but is not limited to those items so specified in the Guidelines).

IP Rights means all intellectual property rights, whether created before or after the Commencement Date, including:

(a) plant breeder’s rights, patents, copyright, rights in circuit layouts, trademarks, registered designs and any right to have Confidential Information kept confidential;

(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and

(c) all rights of a similar nature to any of the rights in paragraphs (a) or (b) that may subsist in Australia or elsewhere, whether or not such rights are registered or capable of being registered.

Landholder means the legal owner of the Property, or where there is a lease, the holder of the registered lease as described in Item 1 of Schedule 1.

Landholder’s Submission means the Department approved submission, located in Annexure 1. In-house LegalOP201701306 / DNRME- Great Artesian Basin Sustainability Initiative - IGABIIP, February 2018

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https://www.business.qld.gov.au/industries/mining-energy-water/water/rural-assistance/igabiip

https://www.business.qld.gov.au/industries/mining-energy-water/water/rural-assistance/igabiip


Machinery of Government Change means a change to the title, structure, functions or operations of the Department or a part of the Department (including corporatisation) as a result of an order made under the Constitution of Queensland 2001 (Qld) or other Queensland legislation.

Material means any material including IP Rights, created, written or otherwise brought into existence by or on behalf of the Landholder in the course of carrying out the Works, excluding reports.

Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined by and granted under the Copyright Act 1968 (Cth), and any similar rights existing under foreign laws.

Parties means the Department and the Landholder and “Party” means either of them, as the context requires.

Program Completion Date means the date by which the Works are to be completed as specified in Item 2 of Schedule 1.

Property means the Landholder’s property identified at Item 4 of Schedule 1

Representative means an employee, agent, officer, director, contractor, subcontractor or other authorised representative of a party and where the context permits with respect to the Landholder includes the Driller.

Special Conditions means any special conditions specified in Item 9 of Schedule 1.

State means the State of Queensland.

Standards means the minimum standards for the construction and reconditioning of water bores that intersect the sediments of artesian basins in Queensland which are available at www.dnrme.qld.gov.au and as amended from time to time.

Term means the period commencing on the Commencement Date and ending on the Expiry Date, unless terminated earlier in accordance with clause 12.

Total Depth of the Bore means the depth of the Bore as described on the Department’s bore card for the Bore which is specified in Item 3 of Schedule 1.

Works means those works or activities detailed in the Landholder’s Submission which have the effect of bringing the Bore into a controlled state whereby the flow from the aquifer can be regulated and shutdown with a valve, without leakage at the surface, resulting in a flow saving from the Great Artesian Basin and includes rehabilitating or replacing the Landholder’s old bores legally operating in an uncontrolled state with controlled bores.

Works Period means the period commencing on the Commencement Date and ending on the Program Completion Date as specified in Item 2 of Schedule 1

16.2 InterpretationIn this deed:

(a) headings are for convenience only and do not affect interpretation;

and unless the context indicates a contrary intention:

(b) if more than one person is identified as the Landholder, then that expression refers to them, and the obligations of the Landholder under this deed bind them, jointly and severally;

(c) person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (where incorporated), a partnership and a trust;


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http://www.dnrme.qld.gov.au/


(d) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes a substituted or an additional trustee;

(e) a reference to a document (including this deed) is to that document as varied, novated, ratified or replaced from time to time;

(f) a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;

(g) a reference to a party, clause, schedule, attachment or annexure is a reference to a party, clause, schedule, attachment or annexure to or of this deed, and a reference to this deed includes all schedules, attachments and annexures to it;

(h) a word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;

(i) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(j) includes in any form is not a word of limitation;

(k) a reference to $ or dollar is to Australian currency; and

(l) no rule of construction will apply to a provision of this deed to the disadvantage of a party merely because that party drafted the provision or would otherwise benefit from it.


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Executed as a deed

Signed, sealed and delivered for and on behalf of the State of Queensland acting through the Department of Natural Resources Mines and Energy ABN 59 020 847 551 by

_____________________________________

(name and position)

a person duly authorised to act in that behalf in the presence of:

_______________________________Signature

Date: __________________________

__________________________________Signature of Witness

__________________________________

Name of Witness in full

Option 1: if the Landholder is an individual **Delete if inapplicable** OR

Signed, sealed and delivered by [insert the landholders name and use separate clause for each individual]

_______________________________Signature


__________________________________


Date: __________________________

Option 2: if the Landholder is a company **Delete if inapplicable** OR

Executed by the [name of the Landholder] ACN[insert] in accordance with section 127 of the Corporations Act 2001 (Cth):

_______________________________Signature of Director/sole Director


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_______________________________Name of Director/sole Director in full

Date: __________________________

_______________________________Signature of Director/Secretary

_______________________________Name of Director/Secretary in full

Date: __________________________

Option 3: if the Landholder is another entity **Delete if inapplicable**

Signed, sealed and delivered for and on behalf of the [Landholder] by

_____________________________________

(name and position)

a person duly authorised to act in that behalf in the presence of:

_______________________________Signature

Date: __________________________


__________________________________


Option 4: if the Landholder is a Partnership **Delete if inapplicable** OR

Signed sealed and delivered for and on behalf of:

[insert names of all partners]

trading as [insert trading name of partnership][ABN]with the full approval and authority of all the other partners in accordance with the Partnership Act 1891 (Qld):


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__________________________________

Signature of Witness

__________________________________Name of Witness in full

_______________________________

Signature of partner

_______________________________

Name of partner in full

Date: __________________________

Option 5: if the Landholder is an Individual Trustee **Delete if inapplicable** OR

Signed sealed and delivered by [insert name of trustee] as trustee for [insert name of trust]: _______________________________

Signature of trustee

_________________________________Signature of Witness

_________________________________


Date: __________________________

Option 6: if the Landholder is a Corporate Trustee **Delete if inapplicable** OR

Executed by [insert trustee name and ACN] as trustee for [insert name of trust] in accordance with section 127 of the Corporations Act 2001 (Cth):

_______________________________Signature of Director/sole Director

_______________________________Name of Director/sole Director in full

Date: __________________________

_______________________________Signature of Director/Secretary

_______________________________Name of Director/Secretary in full

Date: __________________________

Option 7: if the Landholder is a Incorporated Association **Delete if inapplicable**

Signed sealed and delivered for and on behalf of [insert _______________________________


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full name of incorporated association] by: Signature of President/Treasurer or other person duly authorised to act in that behalf

_______________________________Full name of President/Treasurer or other person duly authorised to act in that behalf

Date: __________________________

In the presence of:

________________________________Signature of Witness

________________________________


_______________________________Signature of Secretary

_______________________________Full name of Secretary

Date: __________________________


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Annexure 1 – Landholder’s Submission


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Annexure 2 – Form IGABIIP-002


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Annexure 3 - Guidelines


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Documents

Interim Great Artesian Basin Infrastructure Investment ...€¦ · Web viewFailure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement