sample - funding agreement for works bore piping and

Funding for Works Deed under GABRP

Bore Rehabilitation and Controlled Watering System (Bore Piping)

made at [insert location] on the [insert] day of [insert] 20[insert year]

Between State of Queensland acting through the Department of Regional Development, Manufacturing and Water ABN 59 020 847 551

(Department)

[insert name and ACN/ABN of Applicant]

(Applicant)

Background

A. As part of the Great Artesian Basin Rehabilitation Program (GABRP), financial assistance is available for eligible applicants to undertake water efficiency projects which will result in a saving of flow from the Great Artesian Basin.

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

C. The Applicant has applied for financial assistance under the Interim Great Artesian Basin Infrastructure Investment Program (IGABIIP) or GABRP in accordance with the Guidelines to do the Works.

D. The Department has agreed to apply the eligible applications made under IGABIIP for consideration of the provision of funding under GABRP.

E. The Department has relied on the information in the Application to determine that the Applicant is eligible for financial assistance under GABRP and will meet the program’s purpose.

F. The Department has approved the Application and has agreed to provide financial assistance in the form of the Funds to the Applicant to carry out the Works, subject to the terms and conditions of this deed.

G. The Applicant may or may not be a Landholder and where the Applicant is not a Landholder it has made the Application on behalf of all the Landholders that are affected by the Works.

H. The Applicant wishes to undertake the Works and agrees to undertake the Works in accordance with the Guidelines and this deed.

I. The parties wish to record the terms and conditions under which the Department has offered, and the Applicant has accepted, financial assistance in the form of the Funds, in this deed, which consists of:

(a) this cover page and the signing page;

(b) Schedule 1 – Deed details;

(c) Schedule 2 – Terms and conditions;

(d) Annexure 1 – Works Budget;

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(e) Annexure 2 – Application;

199/0000037 / DRDMW – Great Artesian Basin Rehabilitation Program –GABRP / #14942378



(f) Annexure 3 – Form 002 – Disbursement of Funds;

(g) Annexure 4 – Guidelines;

(h) Annexure 5 – Form W2F160 – Application to amalgamate, amend or subdivide a water licence; and

(i) Annexure 6 – Pro-forma Deed Poll - Landholders consent.

J. Capitalised words and phrases have the meanings specified in clause 19 of Schedule 2. Sa

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– Deed details

Party details:

Department:

Party Name: State of Queensland acting through the Department of Regional Development, Manufacturing and Water

ABN: 59 020 847 551

Street Address: 203 Tor Street, Toowoomba QLD 4350

Contact: [insert details eg. Program Manager, Basin Implementation]

Contact Postal Address: 203 Tor Street, Toowoomba QLD 4350

Contact Telephone: (07) 4529 1355

Contact Facsimile: (07) 4529 1555

Contact Email (subject to clause 15(f)):

[email protected]

Applicant:

Party Name: [insert details - which can be taken from Section 10.0 of the approved Application located in Annexure 2]

ABN/ACN: [insert ACN and ABN for a company, if there is no ACN, 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 (subject to clause15(f)):

[insert details]

Works Period (clause 19.1):

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

Works Completion Date: [insert date]

Existing Bore details:

Registered Number (no. 1):

[insert details of registered number of the bore being rehabilitated and on which piping work is to be completed - this is taken from section 1 of the approved Application in Annexure 2.]

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


Funding for Works Deed under GABRP Bore Rehabilitation and Controlled Watering System (Bore Piping)

Total Depth of Existing [insert details] Bore:

Registered Number (no. 2):

[insert details of registered number of the bore being rehabilitated and on which piping work is to be completed - this is taken from section 1 of the approved Application in Annexure 2].

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

Total Depth of Existing Bore:

[insert details]

Property Existing Bore located on:

Property Name (no.1): [insert below the details of the property on which the Existing Bore is located. This is taken from Section 1.3 of the approved Application located in Annexure 2. If name not known insert "not applicable" otherwise complete by inserting name.]

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

Landholder: [insert details of property owner as recorded on the title - including the Applicant if the Applicant is the Landholder]

Property Name (no. 2): [insert below the details of the property on which the Existing Bore is located. This is taken from Section 1.3 of the approved Application located in Annexure 2. If name not known insert "not applicable" otherwise complete by inserting name.]



Property Controlled Watering System (Bore Piping) located on:

Property Name (no. 1): [insert below the details of the property on which the Works is located. This is taken from Section 1.3 of the approved Application located in Annexure 2. If name not known insert "not applicable" otherwise complete by inserting name.]





Landholder: [insert details of property owner as recorded on the title]




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Certifier Details (clauses 4.4 and 19.1):

Name: [insert name which can be taken from Section 4.0 of the approved Application located in Annexure 2], [insert position within the certifier's business]

ABN/ACN: [insert details]

Registration No.: [insert RPEQ Registration No]

Address: [insert details]

Telephone: [insert details]

Facsimile: [insert details]

Email: [insert details]

Driller Details (clauses 4.5 and 19.1):

Name: [insert name and position within driller business if relevant]

ABN/ACN: [insert details]

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

Address: [insert details]

Telephone: [insert details]

Facsimile: [insert details]

Email: [insert details]

Cost of Works (clause 5.1):

Item no. Works Total cost

8.1 Applicant’s estimate of cost of the Works (including GST) (Works Budget)

$ [taken from the approved Application located in Annexure 2]

8.2 Maximum Funds available towards Works Budget (including GST)

$ [being an amount as determined by the Department after approval of the application ( up to 90% of amount in item 8.1]


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Eligible Items:

Bore Rehabilitation Controlled Watering System (Bore Piping)

Flow meter/pressure monitoring device (mandatory item)

Flow meter/pressure monitoring device (mandatory item)

Pre-works bore flow testing Pre-works bore flow testing

Geophysical log Engineer costs for design of controlled watering system and RPEQ certification

Drilling works by Class 3 drilling contractor

Materials for rehabilitation works (e.g. muds, casing, headwork etc.)

Materials for controlled watering system (e.g. pipe, tanks, troughs, etc.), which are capped at $6,090/km of bore drains including GST

Applicant administration (e.g. solicitor, accountant, Applicant management, contractor management, associated fees), to a maximum of 5 per cent (%) of the Works Budget (capped at $5,500, including GST)

Applicant administration (e.g. solicitor, accountant, Applicant management, contractor management, associated fees), to a maximum of 5 per cent (%) of the Works Budget (capped at $5,500, including GST)

Hydrogeological assessment Installation costs for the controlled watering system (e.g. pipe laying, tank and trough hookups) including Applicant’s self-installation costs to a maximum of up to $1,100/km, including GST of proposed pipeline to be installed

Construction materials required to build a pad for drilling contractor, (e.g. gravel. Labour not included)

Telemetry infrastructure

Telemetry infrastructure

Ineligible Items:

Bore Rehabilitation Controlled Watering System (Bore Piping)

Deepening the bore asset or re-drilling a replacement bore beyond the department’s recorded total depth and the associated materials

Work completed on the bore to bring it up to the minimum requirements of the bore construction standards

Transport, unloading, movement, and storage of materials

Transport, unloading, movement, and storage of materials on property

Meals and accommodation of contractors Meals and accommodation of contractors

Clearing of tracks and pads Clearing of tracks and pads

Stand-down rates by the driller Decommissioning of the replaced bore drain

Materials and associated installation expenses that are in excess of what is required to replace the existing bore drain


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Milestones (clauses 3, 4 and 19.1):

Milestone No.

Milestone description Due Date

1. Existing Bore tested to verify fitness for Works as specified in clause 3.2(a)

[That day which is 28 days after signing this deed]

[insert date]

[Not applicable] Section 3.0 of Form 002 – Disbursement of Funds completed and submitted

2. Provision of certified copy of a Water Sharing Agreement as specified in clause 3.3(b)(i)


[insert date]

[Not applicable] Evidence of the consent of the Landholders as specified in clause 3.3(b)(ii)

3. Provision of any permit, approval or consent required to undertake the Works as specified in clause 3.4(a)


[insert date]

[Not applicable]

4. Provision of copy of the signed contract as specified in clause 4.1(j)(v)


[insert date]

[Not applicable]

5. Evidence of insurance as specified in clause 4.3 [That day which is 28 days after signing this deed]

[insert date]

[Not applicable]

6. Completion of the Works and Practical Completion as specified in clause 4.1(k)


[insert date]

[Not applicable] Submission of a completed section 4.0 – 4.1 (where applicable) and section 5.0 - 5.1 of Form 002 – Disbursement of Funds including all certifications and reports as specified in clause 4.1(l)

7. Submission of a completed section 6.0 - 6.1 of Form 002 – Disbursement of Funds as specified in clause 5.2(d)(ii)

[insert date]

Submission of a completed Form W2F160 as specified in clause 4.10

Submission evidence of Payment of Applicant’s contractors Tax Invoices as specified in clause 6.1(b)(iv)



Amount of Funds (clauses 5.1(a) and 5.2(a)):

The total amount of the Funds available for the Works will be the lesser of:

(a) $[insert the amount in item 8.2], being the maximum Funds available towards the Works Budget (including GST); and

(b) the Department’s Proportion, being [insert the %]% of the final total Approved Expenditure,

Provided always that the Applicant will also contribute the Applicant’s Proportion, being [insert the %]% of the final total Approved Expenditure as evidenced by Tax Invoices.

Table of payments of the Funds (clause 5.2):

Payment date Amount Milestone

20 days from satisfaction of Milestone 6

75% of the amount of the Funds as calculated pursuant to Item 12 above

6

20 days after satisfaction Milestone 7

25% of the amount of the Funds as calculated pursuant to Item 12 above

7

TOTAL: The maximum amount of the Funds as calculated pursuant toItem 12 above

Insurance (clause 4.3):

Type of insurance Value Period of Insurance

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

For Certifier: Professional indemnity appropriate and relevant to the conduct of the services provided

[$1,000,000.00] During the Term and at least 6 years after the Expiry Date

Special Conditions (clauses 2 and 19.1):

Nil.

IMPORTANT: Special Conditions take precedence over the terms of this deed.

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– Terms and conditions

1. Precedence

Where any inconsistency exists between:

the Special Conditions;

this Schedule 2;

Schedule 1 (except the Special Conditions);

the Applicant’s estimated Works Budget set out in Annexure 1;

the Guidelines set out in Annexure 4; or

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 Conditions

The parties agree to be bound by any Special Conditions.

3. Pre-Construction conditions

Conditions

This deed is subject to and conditional upon the satisfaction of clauses 3.2 to 3.4, failing which this deed will be at an end and will have no further force or effect.

Suitability of Existing Bore

Where:

(i) the Works are required to be or will be connected to the Existing Bore; and

(ii) the Department requires evidence that the Applicant:

has obtained independent expert advice of the fitness and suitability of the Existing Bore and in particular the Existing Bore’s fitness after connection of the Works to the Existing Bore; and

is satisfied with that Report,

the Applicant must prior to undertaking the Works:

(iii) provide evidence, to the Department’s satisfaction, that the Applicant has obtained independent expert advice from a suitably qualified professional of the fitness of the Existing Bore, which is to be at a minimum, in the form of a geophysical logging report containing a statement of the Existing Bore’s fitness and suitability for that purpose and its suitability and capability of being connected to the Works and its fitness thereafter,

(the Report).

Where clause 3.2(a)(ii) applies, the Department will reimburse the Applicant the lesser of:

(i) the sum equivalent to 90% of the cost of obtaining the Report referred to in

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clause 3.2(a)(iii); or

(ii) $7,000.



If the Department is not satisfied in its absolute discretion with the evidence provided, including the Report then:

(i) the Department may elect to terminate this deed;

(ii) where clause 3.2(c)(i) applies, the Department will have no further obligation to pay the Funds to the Applicant.

The Applicant acknowledges and agrees that:

(i) it has not relied in any way on the skill or judgement of the Department and in particular with respect to interpreting the evidence or Report provided pursuant to clause 3.2(a)(ii);

(ii) it has relied absolutely on its own opinion and professional advice based upon its own independent analysis, assessment, investigation and appraisal in deciding to undertake the Works;

(iii) it has made its own enquiries and sought independent advice concerning those risks and the financial risks associated with the evidence or Report specified in clause 3.2(a)(ii);

(iv) the Department will not make its own separate enquiries as to the fitness and suitability of the Existing Bore or its suitability of fitness for connection to the Works;

(v) although the Department requires, at a minimum, the Report, the Department may not read or verify all the details within the Report;

(vi) the Department’s acceptance of the evidence and Report as required under clause 3.2(a)(iii) does not amount to:

an acceptance of the accuracy of the evidence or the Report supplied by the Applicant; or

a warranty or implied warranty, guarantee or acceptance by the Department of the condition, state of repair, structural soundness, fitness or suitability of the Existing Bore or the fitness or suitability of the Existing Bore after connection to the Works.

Landholder’s consent

The Applicant acknowledges and agrees that the consent of the Landholders identified in Item 4 and Item 5 of Schedule 1 will be required to be obtained and evidence provided to the Department where any part of the Funds is intended to be applied towards items, works or activities that affect infrastructure, including the Existing Bore, owned or used by multiple landholders (including the Applicant) and/or located on land other than the property owned by the Applicant, if the Applicant is a Landholder.

Where clause 3.3(a) applies the Applicant must, 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; at its cost, provide to the Department:

(i) a certified copy of a Water Sharing Agreement signed by the affected Landholders;

(ii) evidence of the approval of all the Landholders who access a water supply from the Existing Bore or other infrastructure:

for the undertaking of the Works by the Applicant; and

for the arrangements for continued use of that infrastructure, including the Existing Bore, as upgraded or enhanced as a result of the Works, and

acknowledging and warranting continued compliance of certain provisions within this deed relating to the Property of the respective Landholder, in the form attached at Annexure 6.

If the Department is not satisfied in its absolute discretion with the evidence provided as specified in clause 3.3(b) then the Department may elect to terminate this deed.

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Permits, approvals or consents

The Applicant must, 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; at its cost, provide to the Department a copy of any permit, approval or consent required to undertake the Works, including any development approval, if applicable.

If the Applicant fails to comply with clause 3.4(a), then the Department may elect to terminate this deed.

Progression to construction of Works

Where all Pre-Construction Conditions as specified in clauses 3.2 to 3.4 have been met to the Department’s satisfaction, the Department will provide to the Applicant the Department’s written confirmation that all Pre-Construction Conditions have been met.

The Applicant must not commence or authorise construction of the Works prior to receiving the Department’s correspondence in clause 3.5(a).

Despite the issuing of the correspondence in accordance clause 3.5(a), the Applicant acknowledges that the Department is relying on the information provided by the Applicant and is not admitting or accepting that the Applicant has complied with the deed.

4. Applicant’s obligations

Works and Approvals

The Applicant must:

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

(i) the Application shown in Annexure 2;

(ii) the terms and conditions of this deed;

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

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

ensure that the Works are undertaken by suitably qualified persons with due care and skill;

meet each of the Milestones on the due dates as set out in Item 11 of Schedule 1;

ensure that the person appointed as the Certifier:

(i) is a suitably qualified professional;

(ii) is the person nominated as the Certifier in the Application shown in Annexure 2 and as set out in Item 6 of Schedule 1; and

(iii) is appointed to certify that the Works have been undertaken strictly in accordance with the Application,

and where:

(iv) the Department is not satisfied with the skills of the Certifier and requests that the Certifier be replaced, appoint a new suitably qualified Certifier to the satisfaction of the Department; or

(v) the Certifier cannot perform the certification, appoint a new suitably qualified Certifier to the satisfaction of the Department.

ensure that the person appointed as the Driller:

(i) is a suitably qualified professional;

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(ii) is the person nominated as the Driller in the Application shown in Annexure 2 and as set out in Item 7 of Schedule 1; and



(iii) is appointed to undertake the Works in accordance with the Application,

and where:

(iv) the Department is not satisfied with the skills of the Driller and requests that the Driller be replaced, appoint a new suitably qualified Driller to the satisfaction of the Department; or

(v) the Driller cannot undertake the Works, appoint a new suitably qualified Driller to the satisfaction of the Department.

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;

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;

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;

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

contract directly with the Certifier, the Driller and any other contractor required to undertake any part of the Works and as such the Applicant acknowledges and agrees that:

(i) it is responsible for the Certifier, the Driller and any other contractor including payment for the services provided;

(ii) the engagement of its contractors must be done using the appropriate conditions of contract for the relevant construction methods, values and standards and where applicable using the acceptable or standard industry terms and conditions;

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

(iv) it will ensure that each contractor effects and maintain insurance policies for the types, amounts and for the periods specified Item 14 of Schedule 1;

(v) 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;

(vi) it will ensure each contract entered into with a contractor is consistent with this deed and that the terms and conditions of that contract, at a minimum, require that the contractor comply with the deed as if the contractor was the Applicant, including (but not limited to) clauses 8 and 9;

(vii) it will ensure that each contractor complies with its contract with the Applicant; and

(viii) engaging a contractor will not relieve the Applicant from any liability or obligation under this deed. The Applicant 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;

complete or ensure the Works are completed and Practical Completion is achieved by the Works Completion Date in accordance with this deed and as specified in Milestone 6 in Item

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11 of Schedule 1;



submit to the Department the relevant completed part of the Form 002 – Disbursement of Funds including all certifications and reports listed in the Form 002– Disbursement of Funds, once the Works are complete and Practical Completion is achieved in accordance with this deed and as specified in Milestone 6 in Item 11 of Schedule 1;

not vary, amend, waive or fail to give effect to any terms and conditions of this deed without the prior written approval of the Department, and

subject to clause 4.1(m), where the Applicant requires a change to this deed or the Works after the Commencement Date:

(i) provide amended design plans or details of the change to the Department for approval;

(ii) obtain any further permits or approvals required for the completion of the Works and provide written evidence of these approvals to the Department for the Works by a date to be notified by the Department; and

(iii) confirm in writing to the Department that the Certifier has provided the necessary certification for the proposed changes, by a date to be notified by the Department.

Verification of Costs

The Applicant acknowledges and agrees:

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 Applicant, for works or items that forms part of or is incidental to the Works or of or incidental to the Report required to be obtained pursuant to clause 3.2 (if applicable); and

to authorise the parties specified in clause 4.2(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 or the Report.

Insurance

The Applicant must or must ensure its contractors, including the Certifier and the Driller, effect and maintain, the types of insurance in the amounts and for the duration specified in Item 14 of Schedule 1 with an insurer and on terms approved by the Department (such approval not to be unreasonably withheld).

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

The Applicant must lodge with the Department:

(i) a copy of the certificate of currency for each insurance policy, including for those policies of insurances required to be taken by its contractors, within 28 days after signing this deed; and

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

Certifier

The Applicant will:

be responsible for engaging and contracting directly with the Certifier and ensure that they are competent and they are suitably licensed and have the necessary skills to carry out the Works;

request the Certifier to certify that:

(i) the Works are in accordance with the Application; and

(ii) all bore drains supplied from the Existing Bore have been shut down permanently; and

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provide to the Department the Certifier’s certification as part of its Form 002 – Disbursement of Funds.

Driller

The Applicant will be responsible for:

(i) engaging and contracting directly with the Driller, using at a minimum the sample contract located section D at the end of the document currently located at the Department website at https://www.resources.qld.gov.au/__data/assets/pdf_file/0009/99765/minimumconstruction-req-au.pdf;

(ii) ensuring that the Driller is competent and they are suitably licensed and has the necessary skills to carry out the Works;

(iii) ensuring the Driller undertakes the Works in accordance with the Application;

(iv) ensuring the Works comply with the Standards; and

(v) provide to the Department the Driller’s compliance certificate as set out in section 4.0 of the Form 002 – Disbursement of Funds.

The Applicant acknowledges that:

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

(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 4.1(a), 4.1(b), 4.1(f), 4.1(h), 4.1(i) ,4.1(k) and 4.3.

Notice for Inspections

Subject to the satisfaction of the Pre-Construction Conditions, the Applicant acknowledges and agrees that it must give the Department reasonable prior notice (being at least 5 Business Days’ notice):

(i) prior to undertaking the Works; and

(ii) once the Works have been completed, so that the Department’s compliance officers may attend upon the Property or Properties to inspect and verify that:

the Works, including the piping design, have been undertaken in accordance with the Application and to the Department’s satisfaction; and

the bore drains are shut down to the Department’s satisfaction.

The Department will, acting reasonably, assess the Works in accordance with the principles set out in this deed and the Guidelines, any relevant industry standards and as against the design or proposed Works set out in the Application.

The Applicant acknowledges that where the Department has approved the design or proposed Works set out in the Application, the Applicant will undertake the Works in accordance with the design or proposed Works set out in the Application at its own risk. The Applicant acknowledges that receipt of approval for the design or proposed Works set out in the Application does not mean that Department considers the Works are suitable and the Applicant relies on its own enquiries in this regard.

Access to the Property

The Applicant agrees to provide or arrange for the provision of access to the Property or Properties to the Department and its Representatives for the following periods:

(i) during the Works Period; and

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(ii) for a period of 5 years after completion of the Works.



The Department will access the Property or Properties for the purposes of assessing the impact of GABRP and to assess the Works.

The Department will, when accessing the Property or Properties 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 or Properties.

The Department will provide the Applicant 72 hours’ notice where it intends to access any relevant Property.

Without limiting the Department’s rights under this deed, the Applicant acknowledges that the Department may conduct an audit of the Works at any time specified in clause 4.7(a).

Ownership and maintenance of the Works

The Applicant acknowledges and agrees that upon completion of the Works, the relevant Landholder on which the Works or any part of the Works is undertaken, is and continues to be:

the owner of the infrastructure and/or the Existing Bore, located on each respective Property, as upgraded or replaced by the Works; and

responsible for and bears all costs and expenses associated with the maintenance of the infrastructure and/or the Existing Bore, located on each respective Property, as upgraded or replaced by the Works.

Sale of the Property

The Applicant must ensure that each respective Landholder agrees to notify the Department in writing of any sale contracts or other proposed transfer of their respective 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 4.7.

If any Landholder transfers their respective Property (or any part of it on which the Works are undertaken), the Applicant must ensure that each respective Landholder agrees to have the transferee sign a document under which the transferee agrees to be bound by the terms of this document and in particular clauses 4.7(a)(ii), 4.7(b) and 4.7(e) as if it were named as Applicant in this deed.

Where a Property that is owned by the Applicant is sold or transferred prior to the Expiry Date, the Applicant, as the relevant Landholder, may with the prior written approval of the Department (which must not be unreasonably withheld or delayed) assign the benefit of this deed provided that:

(i) the transferee or assignee of any of the rights or interests of the Applicant executes a document on terms reasonably acceptable to the Department whereby the assignee or transferee agrees to be bound by its terms; and

(ii) any purported dealing in breach of this clause 4.9(c) is of no effect.

Amending Licence

The Applicant acknowledges and agrees that on completion of the Works and achieving Practical Completion:

it must simultaneously submit or ensure the submission of:

(i) a Form 002 – Disbursement of Funds to the Department; and

(ii) a Form W2F160 by the licence holder, and the appropriate fees to the appropriate business unit within the Department to comply with clause 4.10(b); and

the existing water licence is required to be amended 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 so that all water taken under that licence is distributed through a watertight system. The use of bore drains or a system of bore drains to distribute any of the water taken for stock or

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domestic purposes is not permitted.



5. Department’s obligations

Administration of Funds

The Department will:

subject to clause 5.2, administer the payment of the Funds and will provide the financial assistance in the form of the Funds for:

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

(ii) an amount up to the maximum of the Funds value as calculated in Item 12 of Schedule 1; and

be responsible only for its own activities and that of its Representatives in accordance with clauses 4.7 and 5.1(a).

Payment of the Funds

Subject to the terms of the deed the Department will provide the Funds in the instalments (if any) and at the times specified in Item 13 of Schedule 1.

Payments of the Funds will be made by electronic transfer.

The final amount of the Funds to be paid to (and/or retained by) the Applicant by the Department, will be calculated as specified in Item 12 of Schedule 1.

The Department may in its absolute discretion, withhold payment of part or all of the Funds until the Applicant has:

(i) shown to the Department’s satisfaction (allowing the Department reasonable time to assess to its satisfaction) that it has met all the Milestones due on or before the due dates;

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

a completed Form 002 – Disbursement of Funds including all certifications and reports listed in the Form 002– Disbursement of Funds; and

all correctly rendered Tax Invoices for the Works;

(iii) complied in full with the requirements of this deed, the Form 002 – Disbursement of Funds and the Guidelines; and

(iv) reasonably satisfied the Department that the Applicant is not otherwise in breach of this deed or any other agreement or deed with the Department.

The Department may at its absolute discretion request further evidence, or access the Property to undertake an inspection of the Property in accordance with clause 4.7, before a Disbursement is made under clause 5.1.

The Department is not liable and is released from any obligation to pay any part of the Funds where the Works are not completed and Practical Completion has not been achieved within the Works Period in accordance with:

(i) the Application;

(ii) the Guidelines;

(iii) by the Milestone due dates as specified in Item 11 of Schedule 1; and

(iv) this deed.

Any payment to the Applicant by the Department:

(i) is not an admission or acceptance by the Department that:

the Applicant has complied with this deed;

the Works are completed to the standard required under this deed or at law;

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the Department is reasonably satisfied with the Works; or

Practical Completion has been achieved within the Works Period, and

(ii) will not release the Applicant of its obligations under this deed.

No further financial assistance

The Applicant acknowledges that the Department has no obligation to provide the Applicant with financial or any other assistance of any kind, including:

(i) in excess of the Funds;

(ii) in relation to ongoing maintenance or capital costs of or incidental to the Works; or

(iii) beyond the Expiry Date.

For the avoidance of doubt, the Applicant is responsible for acquiring and/or providing any additional funds, materials or equipment required to carry out or complete the Works in excess of the Funds.

6. Conditions of the Funds and Disbursement

Conditions of Funds

The Applicant acknowledges and agrees that the Department’s disbursement and the Applicant’s receipt of the Funds is subject to and conditional upon:

the Works being completed:

(i) in accordance with the Application and the Guidelines; and

(ii) within the Works Period;

the Applicant providing the Department with:

(i) evidence of the satisfaction of the Pre-Construction Conditions;

(ii) the Certifier’s certification that the Works are in accordance with the Application, which certification must be in the form approved by the Department;

(iii) the Driller’s compliance certificate as set out in section 4.0 of the Form 002 – Disbursement of Funds;

(iv) evidence of payment of its contractors’ Tax Invoices as specified in Milestone 7 set out in Item 11 of Schedule 1; and

achieving Practical Completion of the Works by or before the Works Completion Date in accordance with this deed and as specified in Milestone 6 set out in Item 11 of Schedule 1; and

the Applicant strictly complying with the terms and conditions of this deed.

No other financial assistance

The Applicant acknowledges and agrees that the Disbursement is made on the basis that the Applicant (or where relevant a Landholder) has not previously and will not request or obtain financial assistance for the Works or any element comprising the Works or for activities or works substantially similar to the Works from a third party at any time, other than an initial loan from an Approved Financial Institution for the cost of the Works.

The Applicant warrants that it has not and will not at any time apply for financial assistance from a third party, including another government department or agency, for meeting or reimbursing the Applicant for the costs of the Works, but if it does so the Applicant must promptly notify the Department of the amount, source and purpose of any additional funds and if requested by the Department must provide evidence of the additional funds and other details as reasonably requested.

Where the Applicant (or where relevant a Landholder) obtains a loan from an Approved Financial Institution as referred to in clause 6.2(a), then upon receipt of a Disbursement from

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the Department, the Applicant must immediately pay or cause to be paid that Disbursement (or the portion equivalent to the loan) to the Approved Financial Institution so that the debt is reduced by the value of the Disbursement or the loan is paid out, whichever is the lesser.

The Applicant acknowledges that if it fails to comply with this clause 6.2, the Applicant’s eligibility to receive a future grant or other financial assistance from the Department or the State may be affected.

The Applicant authorises and consents to the Department sharing and/or obtaining information, including Personal Information, relating to the provision of financial assistance in the form of the Funds:

(i) to the Applicant; or

(ii) for the Works or other activities on the relevant Property,

through a grant or other similar program for the provision of funding, for activities or works substantially similar in nature to the Works with and from other Commonwealth and State Government agencies and departments, statutory authorities, local governments, not for profit entities, charitable organisations or other bodies or entities.

Use of the Funds

No part of the Funds or a Disbursement must be used or applied towards or will be paid for Ineligible Items.

The Department will not make any payment from any part of the Funds and the Funds must not be used for expenditure incurred for any part of the Works undertaken:

(i) prior to the Commencement Date, unless otherwise agreed by the Department in writing; and/or

(ii) after the Works Completion Date.

For clarity, the Applicant acknowledges that any part of the Works undertaken prior to the Commencement Date (unless otherwise permitted under clause 6.3(b)(i) or after the Works Completion Date, will be borne by the Applicant at its sole expense and will not be eligible for reimbursement from any part of the Funds.

Misapplied Funds

Where a Disbursement has been made:

(i) which is applied by the Applicant in a manner that is inconsistent or contrary to the terms of this deed;

(ii) where a statement or warranty of the Applicant is inaccurate or false;

(iii) or used for Ineligible Items or for items or activities which have been falsified by or on behalf of the Applicant; or

(iv) due to fraudulent statements or activities by or on behalf of the Applicant,

(Misapplied Funds),

then:

(v) the Department may, by written notice, require the Applicant to refund the Misapplied Funds;

(vi) if the Department exercises its rights under clause 6.4(a)(v), then the Applicant must within 10 Business Days of receipt of the notice refund the Misapplied Funds plus any interest on it calculated on daily balances at the rate per annum determined by the Supreme Court of Queensland on judgments by default as applicable at the date of the Department’s notice and is fully capitalised on the last day of each month if unpaid; and

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(vii) if the Misapplied Funds are not repaid in accordance with clause 6.4(a)(vi), the Department may:



recover the amount as a liquidated debt due to the Department; or

set the amount off against any other amount payable by the Department to the Applicant, whether under this deed or otherwise.

Nothing in this clause 6.4 affects the accrued rights or remedies of the Department, including the right to terminate this deed in accordance with clause 14.3.

Where the Department becomes aware of Misapplied Funds after the Term, clauses 6.4(a)(v) to 6.4(a)(vii) will apply in accordance with clause 14.5.

Acknowledgment of notification

The Department acknowledges and agrees that on receipt of the Form 002 – Disbursement of Funds from the Applicant that the Department will be deemed to be notified that the Existing Bore has been controlled.

No Warranty

The Applicant acknowledges and agrees that it has relied on its own investigations with respect to:

(i) the Works and in particular the quality, fitness or suitability of the Works;

(ii) the contractors engaged by the Applicant to undertake the Works and their qualifications and fitness to undertake the Works; and

(iii) the items and materials that are used to construct or form part of the Works and in particular the quality, fitness or suitability of the items or materials.

The Department:

(i) has made no representation with respect to the quality, fitness or suitability of Works and the items and materials used in the 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 Existing Bore; or

the works associated with replacing the existing legal bore drains with an efficient controlled watering system together with the permanent shut down of the existing old bore drains, and

(ii) does not expressly or impliedly warrant that the Works is now or will remain suitable or adequate for its purpose and all warranties (if any) as to suitability and adequateness of the Works implied by law are hereby expressly negatived.

General obligations

If the Applicant is aware of an Allegation, then the Applicant must report the Allegation to a relevant authority, including the Queensland Police Service. In this clause, Allegation means an allegation against the Applicant or its contractors or Representatives in connection with the Funds or the Works which raises a reasonable suspicion of misconduct, dishonesty or unlawful behaviour of a serious nature.

Notifications

The Applicant must promptly notify the Department:

of any matters that the Applicant reasonably considers may affect the Applicant’s or its contractors’ ability to carry out the Works or meet any other obligations under this deed;

if the Applicant is unable to carry out the Works within the monetary limit of the Funds or by the Works Completion Date;

of any matter that may affect the Applicant’s eligibility to continue to be eligible to receive the

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Funds;




of any allegation of misconduct or dishonesty concerning the Applicant or its Representatives and any report made under clause 6.7;

of any change to the details in Item 1 of Schedule 1;



of the amount, source and purpose of any additional funds received from a third party for meeting the costs of the Works.

7. Costs

The Applicant 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 Existing Bore. These costs will not be paid from the Funds;

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

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

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

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.

8. Confidentiality

Confidential Information

Subject to clauses 6.2(e) and 8.2, a party must not:

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

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

Exceptions

A party may disclose the other party’s Confidential Information:

with the other party’s prior written consent;

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

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

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

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

where that party is the Department:

(i) to the relevant Minister responsible for 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;

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(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.

Breach of confidentiality

If a party becomes aware of a suspected or actual breach of this clause 8, the party will immediately notify the other party and take reasonable steps required to prevent or stop the suspected or actual breach.

The parties acknowledge and accept that damages will be an inadequate remedy for a breach of this clause 8.

Return of Confidential Information

The 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.

Applicant’s undertaking

The Applicant 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 8.

The Department may, at any time, require the Applicant 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 8.

Disclosure of information

The Applicant agrees that the Department may disclose the following information (including, without limitation, the Applicant’s confidential information), to third parties or advisers:

some or all of the information contained in the Application or this deed, to publicise the financial assistance in the form of the Funds provided and programs of the Department;

the Applicant’s general details and information concerning the Works, to publicise the financial assistance in the form of the Funds provided and programs of the Department; or

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

9. Privacy and Personal Information

This clause 9 applies where this deed amounts to a “service arrangement” under the Information Privacy Act 2009 (Qld) (IPA).

If the Applicant collects or has access to Personal Information as defined under IPA in order to undertake the Works, the Applicant 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 Applicant was the Department.

10. Risk, Liability and indemnity

Risk

The Applicant acknowledges and agrees that:

it has entered into this deed entirely at its own risk;

it undertakes, or will ensure that its contractors undertake, the Works at the Applicant’s own risk; and

where it is obliged or required under this deed to do or effect any act matter or thing then the doing of such act or matter or thing shall unless the deed otherwise provides be at the sole risk and expense of the Applicant.

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Release

The Applicant 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.

Limitation of liability

The liability of the Department under or in connection with this deed is limited in aggregate to the Funds as calculated in Item 12 of Schedule 1.

No liability for consequential or indirect loss

The 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.

Indemnity

The Applicant 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 in any way incurred in connection with:

(i) the Works;

(ii) any claim against the Department by any third parties relating to this deed or the Works;

(iii) any default by the Applicant or the Applicant’s Representatives under this deed;

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

(v) personal injury (including sickness and death) or property damage or loss in connection with the performance (or attempted or purported performance or nonperformance) of this deed or a breach of this deed by the Applicant; or

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

The indemnity granted in clause 10.5(a) is in addition to and not exclusive of any other remedies the Department may have against the Applicant at law.

No expense required

It is not necessary for the Department to incur expense or to make a payment before enforcing a right of indemnity conferred by this deed.

11. GST

Words defined in the GST Law have the same meaning in this clause 11.

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.

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 11(c)

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(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 11(c)(ii).

12. Good faith and Dispute resolution

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.

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.

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

The Applicant must continue to perform its obligations under this deed despite the existence of a dispute unless it obtains the Department’s prior written consent.

The parties must comply with this clause 12 before seeking any relief in any court tribunal, except for urgent relief in the form of judgment from a court.

13. Intellectual Property

Nothing in this deed affects ownership of Background IP.

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

The Applicant 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 Applicant’s Background IP; and

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

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

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

(i) the vesting of the Material and reports produced by or for the Applicant in accordance with clause 13(c); and

(ii) the licensing of the Material and reports produced by or for the Applicant in accordance with clause 13(d).

14. Term and Termination

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

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in accordance with this deed (Term).



Termination for convenience or lack of Funds

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 GABRP;

(ii) a lack or withdrawal of funding from the Australian Federal Government or the State Government for either IGABDR and/or GABIPP; and/or

(iii) a lack or withdrawal of funding from private investors for GABIPP.

The Applicant acknowledges that the Department relies upon an appropriation of funding from:

(i) the Australian Federal Government and the Queensland State Government under IGABDR and/or GABIPP; and/or

(ii) private investors under GABIPP,

in order to pay the Funds under this deed. The Department will use reasonable endeavours to ensure the Funds are available, but the Department will not be in default or liable for any losses of the Applicant or third parties or for compensation of any kind if the Department does not make a payment or part payment of the Funds due to an absence or delay of funding to the Department. If the Department does not make a payment for this reason, the Department must notify the Applicant.

On receipt of a notice of termination pursuant to clause 14.2(a), the Applicant must take all available steps to minimise loss resulting from that termination.

For the avoidance of doubt, clauses 10.3 and 10.4 applies to any termination of this deed under clause 14.2(a).

Termination for breach

The Department may terminate this deed by written notice with immediate effect if the Applicant:

(i) notifies the Department that it is unable or unwilling to commence or continue with the Works;

(ii) breaches a term of this deed which is not capable of being remedied;

(iii) 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;

(iv) fails to comply with the Pre-Construction Conditions as specified in clause 3;

(v) fails to carry out the Works in accordance with this deed;

(vi) fails to refund Misapplied Funds following receipt of a notice, in accordance with clause 6.4(a)(v);

(vii) 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;

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

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

(x) is wound up, voluntarily or involuntarily;

(xi) is no longer eligible pursuant to the Guidelines to continue receiving financial assistance from the Department; or

(xii) if an allegation or incident has occurred as detailed in clause 6.7.

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For the avoidance of doubt, clauses 10.3 and 10.4 applies to any termination of this deed under clause 14.3(a).



Termination

In the event of termination or expiration of this deed:

each party must take all available steps to minimise any loss resulting from the termination or reduction;

the Department will have no further obligation to pay the Funds to the Applicant; and

the Applicant 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.

Pre-existing rights and survival

Termination in accordance with this clause 14 is without prejudice to any rights of either party under this deed existing at the date of termination.

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

(i) Access to the relevant Property (clause 4.7);

(ii) Conditions of the Funds (clause 6.1);

(iii) No other financial assistance (clause 6.2);

(iv) Confidential Information (clause 8);

(v) Privacy and Personal Information (clause 9);

(vi) Risk, Liability and Indemnity (clause 10);

(vii) Good faith and Dispute resolution (clause 12);

(viii) Intellectual property (clause 13); and

(ix) General (clause 18).

15. Notices

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

must be in writing;

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

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

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 15(c);

is taken to have been received by the addressee:

(i) where sent by pre-paid post – on the tenth 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 during a Business Day – on delivery;

(iv) where sent by email – subject to clause 15(f), on the date recorded on the device from which the party sent the email, unless the sending party received an automated message that the email has not been delivered,

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.

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A communication to be given under clauses 14 and 18.8 which is sent via email must also be sent by post or hand delivery, and will not be deemed to be given until the notice is deemed to be delivered by post or hand delivery.

Despite any other provision of this deed, a communication in connection with this deed made to or by the Department is valid if made to or by the Contact of the Department listed in Item 1 of Schedule 1.

16. Trustee Provisions

If the Applicant enters into this deed as the trustee of any trust (the Trust), then the Applicant:

warrants to the Department that:

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

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

(iii) the Applicant 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 Applicant 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 Applicant of its obligations under this deed, it has been obtained;

accepts and undertakes the personal liabilities under this deed and the observance, performance and fulfilment of all obligations on behalf of the Applicant;

will not, prior to the satisfaction of all liabilities of the Applicant 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;

must hold any of the assets of the Trust (which at any time are in the hands of the Applicant 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 Applicant under this deed have not been satisfied;

agrees that if, at any time prior to the satisfaction of any liability of the Applicant under this deed, the Applicant ceases for any reason to be the sole trustee of the Trust, the Applicant 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 16; and

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

17. Independent legal and financial advice

Each party acknowledges that before signing this deed it was recommended to and given the opportunity to obtain independent legal and financial advice as to the meaning and effect of this deed.

18. General

Time is of the essence

Time is of the essence in respect of the Applicant’s obligations under this deed.

Strict adherence to deed

The parties acknowledge that strict adherence by them to the provisions of this deed is vital to the provision of the Funds.

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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.

No relationship

Nothing contained in this deed will be taken as giving rise to any employment, agency, partnership or joint venture relationship between the parties.

Assignment

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

Amendments

This 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.

Further acts and documents

Each 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.

Waiver

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.

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.

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.

Severance

Any 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.

Continuing obligation

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.

Governing law and Jurisdiction

This 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.

No fettering

Nothing 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.

No representation or reliance

Further to clause 6.6, each party acknowledges and confirms that:

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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; and

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.

Warranty

Each party warrants that:

the matters set forth in the Background are true and correct; and

it is aware that each other party is relying upon these warranties and statements in this clause and clauses 6.6 and 18.13 in executing this deed.

Consents

A consent required under this deed from a party may be given or withheld, or may be given subject to any conditions, as that party (in its absolute discretion) thinks fit, unless this deed expressly provides otherwise.

19. Definitions and interpretation

Definitions

In this deed:

Applicant means the legal entity named as the applicant under the Application, which may or may not be the legal owner of the Property or the registered lessee, if the Property is leasehold land, on which the Existing Bore and/or bore drains are located, and as described in Item 1 of Schedule 1.

Applicant’s Proportion means that proportion of the final cost of the Works (including GST) as incurred by the Applicant, that the Applicant must contribute towards, being a percentage of no less than 10% of the final total Approved Expenditure.

Application means the application or submission approved by the Department, located in Annexure 2.

Approved Expenditure means expenditure incurred by the Applicant on Eligible Items forming part of or incidental to the Works in accordance with this deed and which is approved by the Department based on the Department’s assessment of evidence submitted by the Applicant, including but not limited to Tax Invoices, bank statements and receipts.

Approved Financial Institution means a financial institution registered in Australia and operating as a bank, credit union or building society.

Asset means any infrastructure or equipment forming part of:

the bore drains/controlled watering system; or

the Existing 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:

in existence at the Commencement Date; or

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

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

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Certifier means the professional who has accreditations as a Registered Professional Engineer in Queensland (RPEQ) under the Engineers Approved Assessment Scheme in accordance with the



Professional Engineers Act 2002 (Qld) and shown in Item 6 of Schedule 1 or such other professional replaced or substituted by the Applicant, in accordance with clause 4.1(d).

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

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:

is by its nature confidential;

is designated or marked by the Discloser as confidential; or

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:

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

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 and where the context permits with respect to the Department will include the person holding the position specified in Item 1 of Schedule 1 from time to time or its duly appointed delegate.

Department means Department of Regional Development, Manufacturing and Water or any successor government department and where relevant includes any predecessor government departments. For clarity the relevant business unit administering GABRP was formerly part of Department of Natural Resources Mines and Energy.

Department’s Proportion means that proportion of the final cost of the Works (including GST) as incurred by the Applicant that the Department will contribute towards, being a percentage up to 90% of the final total Approved Expenditure.

Disbursement or Disburse means the payment of the Funds 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 and as shown in Item 7 of Schedule 1 or such other professional replaced or substituted by the Applicant, in accordance with clause 4.1(e).

Eligible Items means the cost or expenditure of items or activities (that are or form part of the Works or incidental thereto) which the Applicant can claim payment for from the Funds, as determined by the Department at its sole discretion (and includes, but is not limited to those items specified in Item 9 of Schedule 1) and excludes Ineligible Items. For the purposes of clarification if an Eligible Item is specified to be capped to a certain value, then the capped value will be considered in calculating the total cost of the Eligible Items.

Existing Bore means the bore or bores identified at Item 3 of Schedule 1, existing on the land as at the Commencement Date.

Expiry Date means the earlier of:

the end date for payment of financial assistance , which may or may not form part of the Funds, by the Commonwealth Government pursuant to the relevant IGABDR project agreement;

the end date for payment of financial assistance, which may or may not form part of the Funds, by private investors pursuant to the relevant GABIPP contribution agreement;

the date that the last Milestone has been achieved as specified in Item 11 of Schedule 1; and

the date that all obligations under this deed are complied with.

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Form 002 – Disbursement of Funds means the form shown in Annexure 3 titled ‘– Form 002 – Disbursement of Funds’.

Form W2F160 means the form shown in Annexure 5 titled ‘– Form W2F160 – Application to amalgamate, amend or subdivide a water licence’.

Funds means that part of the financial assistance, available under GABRP either from IGABDR and/or GABIPP, that is applied as a reimbursement and paid to the Applicant by the Department upon successful completion of the Works and is calculated in accordance with Item 12 of Schedule 1.

GABIPP means the Great Artesian Basin Industry Partnership Program, being the program managed by the Department which provides private investors an opportunity to contribute towards the funding for the rehabilitation of Great Artesian Basin bores, through a program of work undertaken by approved applicants, from funds distributed by the Department.

GABRP means the Great Artesian Basin Rehabilitation Program, being an initiative of the Department, for the funding of a basin-wide coordinated approach to the rehabilitation of uncontrolled bores and bore drains and to manage the disbursement of funding received under GABIPP and IGABDR.

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, named IGABIIP Client Guidelines February 2018; or

GABRP, named GABRP Applicant Guidelines 2021,

as amended from time to time and of which a copy of the applicable guidelines is annexed at Annexure 4.

IGABDR means the Improving Great Artesian Basin Drought Resilience Program, being an initiative between the Department, other states and territories within the basin and the Commonwealth of Australia for the funding of a basin-wide coordinated approach to improve water security and drought resilience within the Great Artesian Basin, which program is intended to be consistent with the objectives and outcomes with other agreements and programs, including IGABIIP.

IGABIIP means the Interim Great Artesian Basin Infrastructure Investment Program, being an initiative between the Department, other states and territories within the basin and the Commonwealth of Australia.

Ineligible Items means the cost or expenditure on items that are not Eligible Items specified in Item 10 of Schedule 1 which the Applicant cannot claim as part of the Funds (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:

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

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

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 the holder of the registered lease where the Property is leasehold land, for each respective Property specified in Item 4 and Item 5 of Schedule

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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

Application and approved by the Department which have the effect of:

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 Applicant in the course of carrying out the Works, excluding reports.

Milestone means a key event that must be achieved under this deed as specified in Item 11 of Schedule 1.

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 Applicant and Party means either of them, as the context requires.

Personal Information has the meaning given in the Information Privacy Act 2009 (Qld).

Practical Completion means that the Works are completed except for minor defects or omissions, which do not prevent the Works being used for their stated purpose; all scheduled tests of new infrastructure have been undertaken, are successful and demonstrate operational performance as expected and the Works are fit for the designated use.

Pre-Construction Conditions means those items or requirements that are required to be undertaken by the Applicant prior to commencement of the Works as set out in clauses 3.2 to 3.4 of Schedule 2.

Property means each property identified at:

Item 4 of Schedule 1 on which an Existing Bore is located; and

Item 5 of Schedule 1 on which the bore drains are located,

and on which the Works or part of the Works will be undertaken.

Report means the report referred to in clause 3.2(a)(iii).

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 Applicant includes its contractors, sub-contractors, suppliers, consultants and the Certifier and the Driller.

Special Conditions means any special conditions specified in Item 15 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 currently available at https://www.resources.qld.gov.au/__data/assets/pdf_file/0009/99765/minimum-construction-req-au.pdf and as amended from time to time.

Tax Invoice has the same meaning as in the GST Law.

Term means the period commencing on the Commencement Date and ending on the Expiry Date, unless terminated earlier in accordance with clause 14.

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

Water Sharing Agreement means the agreement to share water which is extracted from the Existing Bore or other infrastructure owned or used by multiple landholders (including where relevant the Applicant) and/or located on land other than the property owned or controlled by the Applicant as evidenced in the Application shown in Annexure 2.

Works means those Eligible Items forming part of the works, activities or expenses detailed in the

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replacing the existing legal bore drains located on the Property specified in Item 5 of Schedule 1 with an efficient controlled watering system together with the permanent shut down of the existing old bore drains; and

bringing the Existing Bore which is specified in Item 3 of Schedule 1 which is located on the Property specified in Item 4 of Schedule 1 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 old bores legally operating in an uncontrolled state with controlled bores.

Works Budget means the Applicant’s estimate of the cost of the Works (including GST) to be undertaken by the Applicant, as specified in Item 8.1 of Schedule 1, with the individual list items or activities forming part of that budget as set out in Annexure 1.

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

Works Period means the period during which the Works are required to be undertaken by the Applicant commencing on the Commencement Date and ending on the Works Completion Date as specified in Item 2 of Schedule 1.

Interpretation

In this deed:

headings are for convenience only and do not affect interpretation;

and unless the context indicates a contrary intention:

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

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;

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;

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

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;

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;

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

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;

includes in any form is not a word of limitation;

a reference to $ or dollar is to Australian currency; and

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. Sa

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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 Regional Development,Manufacturing and Water ABN 59 020 847 551by:

___________________________________ Name and position of delegate

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

___________________________________ Signature of Witness

___________________________________ Name of Witness in full

___________________________________ Signature of delegate

Date: ______________________________

Date: ______________________________

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

Signed, sealed and delivered by [insert theApplicants full name and use separate clausefor each individual]:



Date: ______________________________

___________________________________ Signature of Applicant

Date: ______________________________

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

Executed by [name of the Applicant]ABN/ACN [insert] 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 3: if the Applicant is another entity **Delete if inapplicable** OR

Signed, sealed and delivered for and on behalf of [Applicant] by:

___________________________________ Name and position

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



___________________________________ Signature

Date: ______________________________

Date: ______________________________

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Option 4: if the Applicant 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 [insert] with the full approval and authority of all the other partners in accordance with the Partnership Act 1891 (Qld):



Date: ______________________________

___________________________________ Signature of Partner

___________________________________ Full name of Partner

Date: ______________________________

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

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



Date: ______________________________

___________________________________ Signature of trustee

Date: ______________________________

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

Executed by [insert trustee name and ACN] astrustee 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: ______________________________ Sam

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

Signed sealed and delivered for and on behalf of [insert full name of incorporatedassociation] In the presence of:



Date: ______________________________

___________________________________ 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: ______________________________

___________________________________ Signature of Secretary

___________________________________ Full name of Secretary

Date: ______________________________

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Annexure 1 – Works Budget

[insert form]

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Annexure 2 – Application

[insert form]

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Annexure 3 – Form 002 – Disbursement of Funds

[insert form]

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Annexure 4 – Guidelines

[insert]

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Annexure 5 – Form W2F160 – Application to amalgamate, amend or subdividea water licence

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[insert form]



Annexure 6 – Pro-forma Deed Poll - Landholders consent

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sample - funding agreement for works bore piping and

Documents