Archived: Tuesday, 27 A
LEX-2697 ugust 2019 10:29:18 AM
1
From: Colreavy, Mary
Document 1
Sent: Wed, 3 May 2017 19:03:40
To: Mat hew Bickford-Smith (s. 47F(1)
)
Cc: s. 22(1)(a)(ii)
Subject: FW: For action - EAA files [SEC=UNCLASSIFIED]
Sensitivity: Normal
Attachments:
OLF sample water purchasing contract.pdf; 2016-004 Limited Tender Application Form.pdf; EAA let er 20170503.pdf;
Dear Mat hew
Further to our conversation this evening, as discussed, I have at ached a let er of response to your let er dated 7 April. In this let er I have provided information
regarding the correct Mean Annual Diversion volumes for these parcels of water, your sale offer prices and total values.
Also attached is the application form for you to fil in and a copy of a draft standard purchase contract.
Please cal me or
i
s. 22(1)(a)(ii) f you wish to discuss any of these documents.
regards
Mary
Mary Colreavy
Assistant Secretary
Water Acquisition and Markets Branch
Water Division
Department of Agriculture and Water Resources
L4, 18 Marcus Clarke St, Canberra, ACT
Tel: s. 47F(1)
; M: s. 47F(1)
The department acknowledges the traditional owners of country throughout Aus tralia and their continuing connection to land, s ea and community. We pay our res pects to traditional owners , their cultures
and elders pas t and pres ent.
With regard

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Transaction Details
1.
Seller’s Water Rights
1.1
Water Right Reference:
1.2
Total Volume:
1.3
Sale Volume:
1.4
Water Authority:
1.5
State:
2.
Parties
2.1
Seller
(a)
Name:
(b)
Australian Business
Number:
(c)
Address:
(d)
Telephone number:
(e)
Facsimile number:
(f)
E-mail address:
2.2
Seller’s Solicitor
(a)
Name:
(b)
Attention:
(c)
Address:
(d)
Telephone number:
(e)
Facsimile number:
(f)
E-mail address:
2.3
Seller’s Broker
(a)
Name:
(b)
Attention:
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(c)
Address:
(d)
Telephone number:
(e)
Facsimile number:
(f)
E-mail address:
2.4
Commonwealth’s Solicitor
(a)
Name:
(b)
Attention:
(c)
Address:
(d)
Telephone number:
(e)
Facsimile number:
(f)
E-mail address:
3.
Agreement
3.1
Agreement Date:
3.2
Condition Date:
3.3
Place for Settlement:
3.4
Purchase Price:
3.5
Commonwealth’s
Confidential Information:
3.6
Seller’s Confidential
Information:
3.7
Period of Confidentiality:
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Table of Contents
Transaction Details
1
1.
Definitions and interpretation
4
2.
Sale and purchase
11
3.
Subdivision
11
4.
Application
12
5.
Trade limitations
13
6.
Condition
14
7.
Period before Settlement
15
8.
Outgoings, fees and charges
15
9.
Settlement adjustment sheet
16
10.
Settlement
16
11.
Water allocation
17
12.
Payments
17
13.
Warranties
18
14.
Confidentiality
18
15.
Privacy
20
16.
Books and records
20
17.
Audit and access
20
18.
Goods and services tax
21
19.
General
22
Schedule 1 – Warranties
26
Execution page
29
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Details
Parties
1.
Commonwealth of Australia represented by
the Department of Agriculture and Water
Resources ABN 24 113 085 695 of 18 Marcus Clark Street, Canberra ACT 2600,
Australia (
Commonwealth).
2.
The person named in item 2.1(a) of the Transaction Details of the address specified in
item 2.1(c) of the Transaction Details (
Seller).
Introduction
A.
The Seller owns the Seller’s Water Rights.
B.
The Seller has agreed to sell and the Commonwealth has agreed to purchase the Sale
Volume on the terms of this Agreement.
Agreed terms
1.
Definitions and interpretation
1.1
Definitions
In this Agreement, the following words have these meanings unless the contrary intention
appears:
(a)
Agreement means this document, including any schedule or annexure to it and the
Transaction Details;
(b)
Agreement Date means the date specified in item 3.1 of the Transaction Details;
(c)
Applicable Rules means:
(i)
any statute, rule, regulation, proclamation, order in council, ordinance, order or
by-law whether Commonwealth, State, Territorial or local;
(ii)
any notice, order or direction received from, or given by, any Government
Agency; or
(iii)
any contract,
affecting Water Rights, and includes:
(iv) the
Water Act 2007 (Cth);
(v)
if the Relevant State is:
(A)
New South Wales, the
Water Management Act 2000 (NSW);
(B)
Victoria, the
Water Act 1989 (Vic);
(C) Queensland, the
Water Act 2000 (Qld);
(D) South Australia, the
Natural Resources Management Act 2004 (SA);
(vi) the Memorandum of Understanding between the Commonwealth and New
South Wales dated 23 September 2009;
(vii) any water sharing rules, water sharing plan, water resource plan or resource
operations plan;
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(viii) if the Water Authority is an Irrigation Infrastructure Operator, the Water
Authority’s procedures for the Transformation of Irrigation Rights (including
procedures for applying for Transformation);
(ix) any contract between the Water Authority and the Seller in relation to the
Seller’s Water Rights; and
(x)
any document issued by the Water Authority evidencing title to the Seller’s
Water Rights;
(d)
Application means all documents necessary for the Water Authority to Approve the
Transfer of the Sale Volume and includes:
(i)
an Application Form;
(ii)
all documents specified in the Application Form or required by the Water
Authority as part of the Application Form; and
(iii)
all documents required under the Applicable Rules,
in each case, completed in proper form and duly executed;
(e)
Application Form means a form in relation to the Transfer of the Sale Volume;
(f)
Approve means issue a document evidencing approval and includes:
(i)
if the Relevant State is Queensland and:
(A)
the Seller’s Water Rights are Supplemented, a “
ROP13 – Notice of
existence of water supply contract” in respect of the Commonwealth; or
(B)
the Seller’s Water Rights are derived from a Water Licence:
(A)
the Decommissioning Works have been finalised; and
(B)
confirmation from the Water Authority that ownership of the
Water Rights has been transferred to the Commonwealth;
(ii)
a dealing certificate;
(g)
Authorisation includes:
(i)
any consent, registration, filing, agreement, notarisation, certificate, licence,
approval, permit, authority or exemption from, by or with a Government
Agency; and
(ii)
in relation to any thing which may be proscribed or restricted in whole or in
part by law or otherwise if a Government Agency intervenes or acts in any way
within a specified period after lodgement, registration or other notification of
any thing, the expiration of that period without the intervention or action by that
Government Agency;
(h)
Business Day means a day that is not a Saturday, Sunday or any other day which
is a public holiday or a bank holiday in the place where an act is to be performed or
a payment is to be made;
(i)
Claim includes, in relation to a person, a demand, claim, action or proceeding made
or brought by or against the person, however arising and whether present,
unascertained, immediate, future or contingent;
(j)
Commonwealth’s Confidential Information means the confidential information
specified in item 3.5 of the Transaction Details;
(k)
Condition means that the Application is Approved:
(i)
unconditionally; or
(ii)
on conditions acceptable to the Commonwealth,
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by the Water Authority or State Authority, as the case requires;
(l)
Condition Date means:
(i)
the date specified in item 3.2 of the Transaction Details;
(ii)
if clause 5.3 applies, the date determined in accordance with that clause; or
(iii)
any other date agreed by the Commonwealth and the Seller;
(m)
Decomissioning Works means any decommissioning works to infrastructure or
any other works on the Seller’s land as is required by the Water Authority as a
condition of Approval to Transfer a Water Licence.
(n)
Division means a division of a “
water share” under section 33Y of the
Water Act
1989 (Vic);
(o)
Encumbrance means in relation to any property:
(i)
a mortgage, charge, encumbrance, pledge, lien or other security over the
property;
(ii)
a lease, licence, term transfer or transfer for a period of any right, title or
interest in respect of the property;
(iii)
any administrative advice stating that a distribution operations licence
granted under Division 3 of Part 4 of Chapter 2 of the
Water Act 2000 (Qld)
applies;
(iv)
a caveat, garnishee order, writ of execution, right of set-off, assignment of
income or monetary claim affecting the property;
(v)
a preferential interest, trust, title retention, or other estate, interest, claim or
arrangement affecting the property;
(vi)
a contract of sale or option to purchase or acquire the property; or
(vii)
an agreement to grant, create, allow or register any of these,
including Encumbrances which are registered or unregistered, statutory, legal or
equitable;
(p)
Government Agency means any government and any governmental body,
whether:
(i)
legislative, judicial or administrative;
(ii)
a department, commission, authority, instrumentality, tribunal, agency or
entity; or
(iii)
Commonwealth, State, Territorial or local;
(q)
GST means GST as defined in the GST Act;
(r)
GST Act means the
A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(s)
Irrigation Infrastructure Operator has the meaning given to that term in the
Water
Act 2007 (Cth);
(t)
Irrigation Right has the meaning given to that term in the
Water Act 2007 (Cth);
(u)
Loss includes any damage, loss, cost, liability or expense of any kind and however
arising (including as a result of any Claim), including penalties, fines and interest
and including any that are prospective or contingent and any amounts which for the
time being are not ascertained or ascertainable;
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(v)
ML means megalitre (one million litres);
(w)
Notice means a communication in connection with this Agreement, including a
notice, consent, request, waiver or demand;
(x)
Personal Information means information or an opinion about an identified
individual, or an individual who is reasonably identifiable:
(i)
(a) whether the information or opinion is true or not; and
(ii)
(b) whether the information or opinion is recorded in a material form or not,
being the meaning given to that term in the
Privacy Act 1988 (Cth).
(y)
Place for Settlement means:
(i)
the place specified in item 3.3 of the Transaction Details; or
(ii)
any other place agreed by the Commonwealth and the Seller;
(z)
Purchase Price means the amount specified in item 3.4 of the Transaction Details;
(aa)
Registrar means:
(i)
if the Relevant State is New South Wales:
(A)
subject to clause 1.1(aa)(i)(B), New South Wales Land and Property
Information; or
(B)
if the Water Authority is an Irrigation Infrastructure Operator and the
Commonwealth has elected not to Transform, the Water Authority;
(ii)
if the Relevant State is Victoria, the “
Registrar” as defined under the
Water Act
1989 (Vic); or
(iii)
if the Relevant State is Queensland, the “
registrar” as defined under the
Water
Act 2000 (Qld);
(iv) if the Relevant State is South Australia, the relevant state government water
authority;
(bb)
Release means a document required to remove any Encumbrance in respect of the
Sale Volume, including:
(i)
if the Relevant State is New South Wales:
(A)
if the Water Authority is a state government authority, a “
Discharge of
Mortgage (Security Interest)” from the relevant state government water
authority and a written consent on letterhead from the holder of the
Encumbrance; and
(B)
if the Water Authority is an Irrigation Infrastructure Operator, a document
reasonably required by the Water Authority, including, if required, any
certificate evidencing the Seller’s Water Rights;
(ii)
if the Relevant State is Victoria, a “
Discharge of Mortgage of Water Share”,
(iii)
if the Relevant State is Queensland:
(A)
a “
Form 3 – Release of Mortgage”; and
(B)
a “
Form W2F079 – Notice to chief executive satisfaction of obligation to
distribution operations licence holder”,
but does not include any cheque in favour of the Water Authority in respect of any
fee for the removal of any Encumbrance;
(cc)
Relevant State means the State specified in item 1.5 of the Transaction Details;
(dd)
Representatives means officers, employees, agents, professional advisers or
subcontractors and:
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(i)
in respect of the Seller, includes any Seller’s Solicitor detailed in item 2.2, and
any Seller’s Broker specified in item 2.3, of the Transaction Details;
(ii)
in respect of the Commonwealth, includes any Commonwealth’s Solicitors
specified in item 2.4 of the Transaction Details;
(ee)
ROL Holder means the holder of a resource operations licence granted under
Division 3 of Part 4 of Chapter 2 of the
Water Act 2000 (Qld);
(ff)
Sale Volume means that part of the Seller’s Water Rights entitling the holder to the
maximum volume of water each year, or the number of units or shares, specified in
item 1.3 of the Transaction Details;
(gg)
Seller’s Confidential Information means the confidential information specified in
item 3.6 of the Transaction Details;
(hh)
Seller’s Water Rights means:
(i)
subject to clause 1.1(hh)(ii), the Water Rights with the water right reference
specified in item 1.1 of the Transaction Details and expressed as entitling the
holder to the maximum volume of water each year, or the number of units or
shares, specified in item 1.2 of the Transaction Details; or
(ii)
if there has been a Division or Subdivision of the Water Rights specified in
clause 1.1(hh)(i), the Water Rights resulting from that Division or Subdivision
(as the case may be);
(ii)
Settlement means completion of the sale and purchase of the Sale Volume in
accordance with clause 10;
(jj)
Settlement Adjustment Sheet means a document setting out amounts payable by
the Commonwealth and the Seller on the basis of clause 8;
(kk)
Settlement Date means the:
(i)
the date specified in the Settlement Notice; or
(ii)
any other date agreed by the Commonwealth and the Seller;
(ll)
Settlement Notice means the notice given by the Commonwealth to the Seller in
accordance with clause 10.1;
(mm)
Stamp Duty means duty imposed under the
Duties Act 1997 (NSW), the
Duties Act
2000 (Vic), the
Duties Act 2001 (Qld), the
Stamp Duties Act 1923 (SA) or any other
similar legislation of a State or Territory of Australia;
(nn)
State Authority means, where the Water Authority is an Irrigation Infrastructure
Operator, the water authority against which that Irrigation Infrastructure Operator
holds the corresponding Water Access Entitlements;
(oo)
Subdivision means a subdivision of “
water allocation” as defined in the
Water Act
2000 (Qld) in accordance with clause 3;
(pp)
Supplemented means, in relation to “
water allocation” as defined in the
Water Act
2000 (Qld), a water supply which is made more reliable by releases of stored water,
for example from dams;
(qq)
Tender Application Form means the tender application form submitted by the
Seller in respect of the Sale Volume the subject of this Agreement;
(rr)
Trade Limitation means any limit on the Transfer of Water Rights imposed by the
Applicable Rules;
(ss)
Transaction Details means the details of the transaction contemplated by this
Agreement as specified under the heading “Transaction Details” on the first pages of
this Agreement;
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(tt)
Transfer means the transfer of the Sale Volume to the Commonwealth by one of
the following methods determined by the Commonwealth:
(i)
the transfer of Water Access Entitlements from the Seller to the
Commonwealth;
(ii)
the transfer of Irrigation Rights from the Seller to the Commonwealth; or
(iii)
the Transformation of Irrigation Rights held by the Seller into Water Access
Entitlements held by the Commonwealth;
(uu)
Transfer Documents means all documents, in registrable form, necessary to
register the Transfer of the Sale Volume from the Seller to the Commonwealth
including:
(i)
if the Relevant State is New South Wales:
(A)
if the Water Authority is a state government water authority, a notification
from the relevant state water authority and, unless otherwise agreed by
the Commonwealth and the Seller, any certificate evidencing the Seller’s
Water Rights; or
(B)
if the Water Authority is an Irrigation Infrastructure Operator, all
documents required by the Water Authority, including, if required, any
certificate evidencing the Seller’s Water Rights;
(ii)
if the Relevant State is Victoria, a “
Transfer of Water Share”;
(iii)
if the Relevant State is Queensland:
(A)
a “
Form 1 – Transfer”;
(B)
a “
Form 24 – Property Information (Transfer)”; and
(C) if the Seller’s Water Rights are Unsupplemented, the dealing certificate
issued by the relevant state government water authority,
in each case, properly executed and capable (upon payment of the prescribed
registration fee) of registration at the office or registry responsible for the registration
of that document without further notation or amendment;
(vv)
Transformation has the meaning given to that term in the
Water Market Rules 2009
(Cth);
(ww)
Trust means any trust named in item 2.1(a) of the Transaction Details;
(xx)
Unsupplemented means, in relation to “
water allocation” as defined in the
Water
Act 2000 (Qld), a water supply which is not boosted by releases of stored water;
(yy)
Warranties means the warranties set out in items 1.5, 2 and 3 of Schedule 1 and:
(i)
either:
(A)
if the Seller is a body corporate, item 1.1 of Schedule 1; or
(B)
if the Seller is a natural person, item 1.2 of Schedule 1; and
(ii)
either:
(A)
if there is a Trust, item 1.3 of Schedule 1; or
(B)
if there is not a Trust, item 1.4 of Schedule 1;
(zz)
Water Access Entitlement has the meaning given to that term in the
Water Act
2007 (Cth);
(aaa)
Water Allocation means a volume of water allocated to a Water Right;
(bbb)
Water Authority means the water authority specified in item 1.4 of the Transaction
Details;
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(ccc)
Water Licence means a “
water licence” as defined under the
Water Act 2000 (Qld);
or
(ddd)
Water Right means:
(i)
if the Relevant State is New South Wales:
(A)
if the Water Authority is a state government water authority, a “
water
access licence” as defined under the
Water Management Act 2000 (NSW); or
(B)
if the Water Authority is an Irrigation Infrastructure Operator, an Irrigation
Right held against that Water Authority;
(ii)
if the Relevant State is Victoria, a “
water share” as defined under the
Water
Act 1989 (Vic); or
(iii)
if the Relevant State is Queensland:
(A)
a “
water allocation” as defined under the
Water Act 2000 (Qld); or
(B)
a Water Licence;
(iv) if the Relevant State is South Australia:
(A)
if the Water Authority is a state government water authority, a “
water
licence” under the
Natural Resources Management Act 2004 (SA); or
(B)
if the Water Authority is an Irrigation Infrastructure Operator, an Irrigation
Right held against that Water Authority; and
(eee)
Water Year means any period of one year commencing on 1 July and ending on 30
June.
1.2
Interpretation
(a)
Reference to:
(i)
the singular includes the plural and the plural includes the singular;
(ii)
a person includes an individual, a firm, a body corporate, an unincorporated
association or an authority;
(iii)
a person includes their legal personal representatives (including executors),
administrators, successors, substitutes (including by way of permitted
novation) and permitted assigns;
(iv) a thing includes the whole and each part of it separately;
(v)
a statute, regulation, code or other law or a provision of any of them includes:
(A)
any amendment or replacement of it; and
(B)
another regulation or other statutory instrument made under it, or made
under it as amended or replaced;
(vi) a form, certificate, notice, consent or other document created by a
Government Agency, State Authority or Water Authority includes that
document as amended, supplemented, varied or replaced (except to the
extent that it is inconsistent this Agreement);
(vii) money (including “
$”, “
AUD” or “
dollars”) is to Australian currency unless
otherwise stated;
(viii) costs includes charges, expenses and legal costs;
(ix) any contract (including this Agreement) or other instrument includes any
variation or replacement of it;
(x)
a group of persons is a reference to any two or more of them taken together
and to each of them individually;
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(xi) a body which has been reconstituted or merged must be taken to be the body
as reconstituted or merged;
(xii) a body which has ceased to exist and the functions of which have been
substantially taken over by another body must be taken to be that other body;
(xiii) time is to Canberra time; and
(xiv) a day or a month means a calendar day or calendar month.
(b)
The meaning of any general language is not restricted by any accompanying
example, and the words “
includes”, “
including”, “
such as”, “
for example” or similar
words are not words of limitation.
(c)
Where a word or expression is given a particular meaning, other parts of speech
and grammatical forms of that word or expression have a corresponding meaning.
(d)
Headings and any table of contents or index are for convenience only and do not
form part of this Agreement or affect its interpretation.
(e)
A provision of this Agreement must not be construed to the disadvantage of a party
merely because that party was responsible for the preparation of the Agreement or
the inclusion of the provision in the Agreement.
(f)
If an act must be done on a specified day which is not a Business Day, it must be
done instead on the next Business Day.
(g)
Unless the context requires otherwise, where a period of time is to be calculated by
reference to a day, act or event, that period of time is to be calculated exclusive of
that day or the day of that act or event but inclusive of the day on which that period
of time starts or ends (as the case may be).
1.3
Parties
(a)
If a party consists of more than one person, this Agreement binds each of them
separately and any two or more of them jointly.
(b)
An obligation, representation or warranty on the part of or in favour of more than
one person is for the benefit of each of them separately and all of them jointly.
(c)
A party which is a trustee is bound both personally and in its capacity as a trustee.
2.
Sale and purchase
2.1
Sale Volume
The Seller agrees to sell to the Commonwealth, and the Commonwealth agrees to
purchase from the Seller, the Sale Volume, free from all Encumbrances and otherwise on
the terms of this Agreement.
2.2
Consideration
The consideration for the Sale Volume is the amount payable by the Commonwealth in
accordance with clause 10.4.
3.
Subdivision
3.1
Queensland water allocation only
This clause 3 applies only if the Seller’s Water Rights are “
water allocation” as defined in
the
Water Act 2000 (Qld) and the Seller has not agreed to sell all of the Seller’s Water
Rights to the Commonwealth. If this clause 3.1 applies, the Seller must effect a
Subdivision of the Seller’s Water Rights in accordance with this clause 3.
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3.2
Application for subdivision
Within five Business Days after the Agreement Date, the Seller must lodge all documents,
including a “
Form ROP07 - Application to subdivide water allocation” in relation to the
Seller’s Water Rights, necessary for the relevant state government water authority to
issue a dealing certificate in relation to the Subdivision of the Seller’s Water Rights, such
that one part following the Subdivision will be the Sale Volume.
3.3
Application for ROP13 in respect of supplemented water rights
If the Seller’s Water Rights are Supplemented, the Seller must lodge promptly all
documents, including, if required by the Water Authority, a copy of the dealing certificate
referred to in clause 3.2, necessary for the Water Authority to issue a “
ROP13 – Notice of
existence of water supply contract” in respect of the Seller in relation to the Sale Volume.
3.4
Registration of subdivision
The Seller must lodge promptly with the Registrar all documents necessary to register the
Subdivision, including:
(a)
a duly executed “
Form 14 – General request”;
(b)
the dealing certificate referred to in clause 3.2;
(c)
if clause 3.3 applies, the “
ROP13 – Notice of existence of water supply contract”
issued by the Water Authority; and
(d)
a duly executed “
Form 18 – General consent” from each person holding an
Encumbrance in respect of the Seller’s Water Rights,
and pay all applicable fees.
3.5
Notification to Commonwealth
The Seller must promptly provide to the Commonwealth a copy of the registration
confirmation statement from the Registrar in respect of the Subdivision under this clause
3.
3.6
Evidence for Water Authority
If the Water Authority requires evidence that the Subdivision under this clause 3 has been
registered, for example, a copy of the registration confirmation statement from the
Registrar, before it will process an Application, then the Seller must provide that evidence
to the Water Authority promptly.
4.
Application
4.1
Determination of application form
The Commonwealth must determine the Application Form to be used.
4.2
Execution of application form
The Seller must execute the Application Form or, if necessary, must procure that the
Water Authority executes the Application Form.
4.3
Lodgement generally by the Commonwealth
Subject to clause 4.4:
(a)
the Seller must deliver to the Commonwealth a duly executed Application (apart
from any necessary documents in the custody or control of the Commonwealth):
(i)
if clause 3 applies, no later than five Business Days after the Subdivision is
registered;
(ii)
if clause 5.1 or clause 5.2 applies, no later than 15 Business Days before the
commencement of the next Water Year; or
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(iii)
otherwise, on the Agreement Date; and
(b)
subject to the Seller complying with clause 4.3(a), the Commonwealth must lodge
the Application with the Water Authority or State Authority, as the case requires.
4.4
Lodgement by the Seller in particular cases
Despite clause 4.3, the Commonwealth may direct the Seller to lodge the duly executed
Application (apart from any necessary documents in the custody or control of the
Commonwealth) with the Water Authority in which case:
(a)
the Seller must do so within five Business Days after the direction is given to the
Seller or by any other date agreed by the Commonwealth and the Seller; and
(b)
the Commonwealth must lodge with the Water Authority all documents required by
the Water Authority which are in the custody or control of the Commonwealth.
4.5
Application fees
The Commonwealth must pay any fees in relation to the lodgement of the Application as
required by the Water Authority, State Authority or ROL Holder, as applicable.
4.6
Removal of encumbrances over South Australian water rights
Without limiting clause 19.1, if the Relevant State is South Australia, the Seller must
procure that any person holding an Encumbrance in respect of the Sale Volume do (at the
Seller’s cost) all things (including executing deeds, documents and instruments), including
all things required by the Water Authority, to remove the Encumbrance before the
Application is determined.
5.
Trade limitations
5.1
Application unlikely to be approved
If the Commonwealth determines that an Application is unlikely to be Approved by the
Water Authority or State Authority, as the case requires, before the Condition Date
because of a Trade Limitation, the Commonwealth may, by giving notice to the Seller,
determine that an Application not be lodged until the next Water Year. The notice must be
given before the Application is lodged.
5.2
Application rejected
If the Application is rejected by the Water Authority or State Authority because of a Trade
Limitation, another Application must be lodged.
5.3
Extension and termination
If clause 5.1 or clause 5.2 applies, then:
(a)
the Condition Date is extended to 30 September in the next Water Year; unless
(b)
either party terminates this Agreement by giving notice to the other party at least 15
Business Days before the commencement of the next Water Year.
5.4
Rights on termination
If this Agreement is terminated under clause 5.3 then, in addition to any other rights,
powers or remedies provided by law or in equity:
(a)
subject to clause 5.4(b), each party is released from its obligations and liabilities
under or in connection with this Agreement and this Agreement will have no further
effect, other than under this clause 5.4 and clauses, 1, 14, 16, 17 and 19.8; and
(b)
each party retains the rights, remedies and powers it has in connection with any
past breach or any claim that has arisen before termination.
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6.
Condition
6.1
Condition
The obligations of the parties at Settlement are subject to the Condition being satisfied by
the Condition Date.
6.2
Obligation to satisfy condition
The Seller must use reasonable commercial endeavours to ensure that the Condition is
satisfied as soon as possible but, in any event, before the Condition Date.
6.3
Decommissioning Works
(a)
Where the Seller’s Water Rights are derived from a Water Licence, the Seller must
undertake any Decommissioning Works in accordance with applicable legislation
and without unreasonable delay.
(b)
The Seller will notify the Commonwealth:
(i)
as soon as reasonably possible of the nature and anticipated timeframe of the
completion of the Decommissioning Works (“
Decommissioning Works
Timeframe”); and
(ii)
upon completion of the Decommissioning Works.
(c)
Within 30 days of receiving the notice pursuant to clause 6.3(b), where the
Commonwealth considers in its absolute discretion that the Decommissioning Works
Timeframe will either:
(i)
negatively impact the viability or suitability of the overall purchase of the Water
Licence; or
(ii)
cause the Condition to not be satisfied by the Condition Date,
the Commonwealth can elect to terminate the Agreement by notice in writing to the
Seller.
(d)
The Seller's obligations under clause 6.3 are essential terms of this Agreement.
The Commonwealth may treat the Seller's breach of an essential term as a
repudiation of this Agreement and may terminate this Agreement for breach of this
essential term and for repudiation. This clause does not prevent any other
obligations under this Agreement from being essential terms.
6.4
Further obligation to co-operate
Without limiting the generality of clause 6.2:
(a)
the Seller must make all necessary and appropriate applications and supply all
necessary and appropriate information for the purpose of enabling the Condition to
be satisfied;
(b)
the Seller must not withdraw or procure the withdrawal of any application made or
information supplied under clause 6.3(a);
(c)
the Seller must not take any action, or fail to take any action, that would, or would be
likely to, prevent or hinder the satisfaction of the Condition; and
(d)
the Seller must:
(i)
supply to the Commonwealth copies of all applications made and all
information supplied for the purpose of enabling the Condition to be satisfied;
and
(ii)
keep the other party informed in a timely manner of the status of any
discussions or negotiations with relevant third parties regarding the Condition.
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6.5
Obligation to notify
If a party becomes aware:
(a)
that the Condition has been satisfied; or
(b)
of any facts, circumstances or matters that may result in the Condition not being or
becoming incapable of being satisfied;
that party must promptly notify the other party accordingly.
6.6
Failure to satisfy condition
If the Condition is not satisfied to the reasonable satisfaction of the Commonwealth by the
Condition Date, the Commonwealth may terminate this Agreement at any time by notice
to the Seller.
6.7
Rights on termination
If this Agreement is terminated under clause 6.6 then, in addition to any other rights,
powers or remedies provided by law or in equity:
(a)
subject to clause 6.7(b), each party is released from its obligations and liabilities
under or in connection with this Agreement and this Agreement will have no further
effect, other than under this clause 6.7 and clauses, 1, 14, 16, 17 and 19.8; and
(b)
each party retains the rights, remedies and powers it has in connection with any
past breach or any claim that has arisen before termination.
7.
Period before Settlement
From the Agreement Date until Settlement, the Seller:
(a)
must not dispose of, or agree to dispose of, any of the Sale Volume;
(b)
must not create an Encumbrance in respect of the Sale Volume;
(c)
must promptly provide the Commonwealth with a copy of any documentation
received in respect of the Sale Volume from:
(i)
the Water Authority;
(ii)
any Government Agency; and
(iii)
any person holding an Encumbrance in respect of the Sale Volume;
(d)
must promptly provide to the Commonwealth all information that the Commonwealth
(acting reasonably) requests with respect to the Seller’s Water Rights; and
(e)
authorises the Commonwealth to inspect the Water Authority’s records in relation to
the Seller’s Water Rights, and, if the Commonwealth requests, must promptly
execute and deliver to the Commonwealth any document to give effect to the
authorisation given under this clause 7(e).
8.
Outgoings, fees and charges
8.1
Outgoings
(a)
The Seller must pay all outgoings in relation to the Sale Volume in respect of the
period up to and including the Settlement Date, including all fees and charges in
relation to the delivery and usage of water, including spillable water.
(b)
The Commonwealth must pay all outgoings in relation to the Sale Volume in respect
of the period after the Settlement Date.
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8.2
Other fees and charges
(a)
The Seller must pay all fees and charges in relation to the removal of
Encumbrances with respect to the Sale Volume.
(b)
Subject to clause 8.2(a), the Commonwealth must pay all fees and charges:
(i)
payable to the Water Authority for processing the Application; and
(ii)
payable to the Registrar for registering the Transfer.
9.
Settlement adjustment sheet
(a)
Before Settlement, the Commonwealth must deliver a Settlement Adjustment Sheet
to the Seller.
(b)
The Settlement Adjustment Sheet must be prepared:
(i)
on the basis of clause 8;
(ii)
with respect to outgoings, fees or charges that have been paid, on the basis of
the amount paid; and
(iii)
with respect to outgoings, fees or charges that have not been paid,
disregarding any discount for early payment.
(c)
The adjustment or payment, under clause 10.4, of any amount in accordance with
the Settlement Adjustment Sheet does not limit the rights or obligations of the
parties under clause 8.
(d)
If a party must, under the Applicable Rules, pay any amount for which the other
party is responsible under clause 8, the party must pay the amount and the other
party must reimburse them within 15 Business Days after receiving satisfactory
evidence in respect of the payment.
10.
Settlement
10.1
Notice of Settlement date
The Commonwealth must give notice of the Settlement Date to the Seller within ten
Business Days after the Condition is satisfied.
10.2
Time and place
Settlement must occur at the Place for Settlement on the Settlement Date at:
(a)
a time between 9 am and 5 pm notified by the Commonwealth to the Seller; or
(b)
any other time agreed by the Commonwealth and the Seller.
10.3
Seller’s obligations
(a)
Subject to clause 10.3(b), at or before Settlement, the Seller must deliver to the
Commonwealth:
(i)
all Transfer Documents; and
(ii)
all Releases.
(b)
If the Relevant State is:
(i)
South Australia and the Application has been Approved by the State Authority;
or
(ii)
Queensland, and the Water Right is derived from a Water Licence,
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the Seller is not required to deliver Transfer Documents or Releases under
clause 10.3(a).
(c)
If the Seller does not comply with clause 10.3(a) , the Commonwealth may terminate
this Agreement immediately by giving notice to the Seller.
10.4
Payment obligations
At Settlement, the Commonwealth must pay to the Seller (or as the Seller has directed)
the Purchase Price, subject to any adjustment in accordance with the Settlement
Adjustment Sheet.
10.5
Interdependent obligations
The requirements of clauses 10.3 and 10.4 are interdependent and are to be carried out
contemporaneously and, as nearly as may be possible, simultaneously. No delivery,
payment or other event referred to in clauses 10.3 and 10.4 may be treated as having
been made or occurred until all deliveries and payments have been made and all other
events have occurred.
10.6
Risk
Until Settlement, the Sale Volume is at the risk of the Seller. After Settlement, it is at the
risk of the Commonwealth.
10.7
After Settlement
If an obligation of any party required to be performed at Settlement is not performed at
Settlement, and regardless of whether it is waived as a condition or requirement of
Settlement, the relevant party remains obliged to perform that obligation, except to the
extent that performance of that obligation is also waived.
11.
Water allocation
11.1
General
If Water Allocation is allocated or determined in respect of the Sale Volume in the period
after Settlement and before the Transfer is registered by the Registrar, the Seller must, if
requested by the Commonwealth within 60 Business Days after the date of registration,
promptly transfer that Water Allocation to the Commonwealth at no charge. The
Commonwealth must pay the Water Authority’s fee for processing the transfer.
11.2
South Australia
If Water Allocation is allocated or determined in respect of the Sale Volume in the period
after the Transfer is registered by the Registrar and before Settlement, the
Commonwealth must, if requested by the Seller within 60 Business Days after Settlement,
promptly transfer that Water Allocation to the Seller at no charge. The Seller must pay the
Water Authority’s fee for processing the transfer.
12.
Payments
All payments in connection with this Agreement must be made:
(a)
by unendorsed bank cheque drawn by an Australian bank;
(b)
by way of direct transfer of immediately available funds; or
(c)
in such other form of funds as may be agreed between the Commonwealth and the
Seller.
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13.
Warranties
13.1
Seller warranties
The Seller warrants to the Commonwealth that each Warranty is true and accurate on the
Agreement Date and will remain true and accurate until Settlement and on Settlement.
13.2
Separate warranties
Each Warranty is a separate warranty in no way limited by any other Warranty.
13.3
Disclosure obligation
The Seller must disclose to the Commonwealth anything which is or will constitute a
breach of a Warranty or cause a Warranty to be untrue or inaccurate, as soon as possible
after the Seller becomes aware of it. This obligation applies from the Agreement Date
until and at Settlement.
13.4
Right of termination
The Commonwealth may terminate this Agreement by giving notice to the Seller at any
time before Settlement if:
(a)
it becomes aware (after the Agreement Date) of a breach of a Warranty; and
(b)
the Commonwealth notifies the breach to the Seller and the Seller is unable to
remedy it within five Business Days after receiving the notice or before the
Settlement Date, whichever is earlier.
If this Agreement is terminated under this clause 13.4 then, in addition to any other rights,
powers or remedies provided by law or in equity:
(c)
subject to clause 13.4(d), each party is released from its obligations and liabilities
under or in connection with this Agreement and this Agreement will have no further
force or effect, other than under this clause 13.4 and clauses 1, 14, 16, 17 and
19.8;
and
(d)
each party retains the rights, remedies and powers it has in connection with any
past breach or any claim that has arisen before termination.
14.
Confidentiality
14.1
Prohibition on disclosure
(a)
Subject to clause 14.2, the Seller must not, without the prior written consent of the
Commonwealth, disclose any of the Commonwealth’s Confidential Information to a
third party.
(b)
Subject to clause 14.2, the Commonwealth must not, without the prior written
consent of the Seller, disclose any of the Seller’s Confidential Information to a third
party.
14.2
Exceptions to obligations
The obligations on each party under clause 14.1 will not be taken to have been breached
to the extent that confidential information of the other party is:
(a)
disclosed by a party if this Agreement expressly authorises or requires the
disclosure;
(b)
disclosed by a party to the Water Authority, the Registrar, or a person whose
consent is needed, in connection with this Agreement;
(c)
disclosed by a party to its Representatives solely in order to comply with obligations,
or to exercise rights, under this Agreement or to obtain advice in relation to this
Agreement (including its administration and enforcement);
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(d)
disclosed to a party's internal management personnel, solely to enable effective
management or auditing of activities related to this Agreement;
(e)
disclosed by the Commonwealth to the Auditor-General, Information Commissioner,
Privacy Commissioner and Freedom of Information Commissioner, or his or her
delegate, for the purpose of performing the Auditor-General’s, Information
Commissioner’s, Privacy Commissioner’s or Freedom of Information
Commissioner’s statutory functions or powers;
(f)
disclosed by the Commonwealth to the responsible Minister;
(g)
disclosed by the Commonwealth, in response to a request by a House or a
Committee of the Parliament of the Commonwealth of Australia;
(h)
disclosed by the Commonwealth on the Department of Agriculture and Water
Resource’s web site in response to the Senate Order on Departmental and Agency
Contracts (for example, disclosure in contract listings, grants listings or file lists);
(i)
disclosed by the Commonwealth within the Department of Agriculture and Water
Resources, or to another Government Agency, where this serves the
Commonwealth's legitimate interests;
(j)
authorised or required to be disclosed by any applicable statute, regulation, by-law,
ordinance or subordinate legislation in force from time to time in Australia, whether
made by a State, Territory, the Commonwealth, or a local government, including:
(i)
disclosure on the AusTender web site to the extent authorised or required by
the
Public Governance, Performance and Accountability Act 2013 (Cth) and
the Commonwealth Procurement Rules (for example, reporting that the
Commonwealth has entered into this Agreement, including disclosure of the
Seller’s name, locality and ABN and the Agreement Date and Purchase Price);
(ii)
where an application is made under the
Freedom of Information Act 1982
(Cth);
(iii)
where the Commonwealth has been served with a valid search warrant; and
(iv) where the Commonwealth has a duty to disclose the transfer of funds under
the
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth);
(k)
disclosed by a party in connection with legal or other proceedings relating to this
Agreement; or
(l)
in the public domain otherwise than due to a breach of this Agreement.
14.3
Obligation on disclosure
Where a party discloses Confidential Information of the other party to another person:
(a)
pursuant to clause 14.2(c) or (d), the disclosing party must:
(i)
notify the receiving person that the information is confidential information; and
(ii)
not provide the information unless the receiving person agrees to keep the
information confidential, including in the case of the Commonwealth’s
Confidential Information, the receiving person giving the Commonwealth a
legally binding undertaking to that effect in the form approved by the
Commonwealth; or
(b)
pursuant to clause 14.2(f) or (g), the disclosing party must notify the receiving party
that the information is confidential information of the other party.
14.4
Period of confidentiality
The obligations under this clause 14 continue, despite the expiry or termination of this
Agreement, for the period specified in item 3.7 of the Transaction Details.
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15.
Privacy
15.1
Collection of personal information
The Seller acknowledges that:
(a)
the Commonwealth collects Personal Information in respect of the Seller in
connection with this Agreement including Personal Information:
(i)
in the Tender Application Form, Application, Transfer Documents and any
associated response to a request for information, application or registration
form submitted by the Seller;
(ii)
contained in public registers and registers maintained by the Water Authority
relevant to the subject matter of this Agreement; and
(iii)
in the Transaction Details and otherwise in this Agreement; and
(b)
such Personal Information will be used for the following purposes:
(i)
evaluating tenders, including the activities described in the Tender Application
Form;
(ii)
preparing, managing, evaluating, auditing, and reporting on this Agreement
and the transactions contemplated by this Agreement, and
(iii)
conducting the transactions contemplated by, and otherwise complying with
obligations and exercising rights under, this Agreement, and related activities.
15.2
Authorisation for collection
The collection of Personal Information as described in clause 15.1 is not expressly
authorised or required by law.
15.3
Disclosure of personal information
Personal information in respect of the Seller collected by the Commonwealth in
connection with this Agreement may be disclosed by the Commonwealth:
(a)
to the Commonwealth’s Representatives in order to prepare this Agreement and
undertake due diligence investigations in respect of this Agreement; and
(b)
as described in each of clauses 14.2(a) to (k).
16.
Books and records
16.1
Seller to keep books and records
The Seller must retain and require its Representatives to retain all books and records
relating this Agreement.
16.2
Survival
The obligations under this clause 16 apply during the term of this Agreement and continue
for seven years from the expiry or termination of this Agreement.
17.
Audit and access
17.1
Right to conduct audits
(a)
The Commonwealth or a Representative may conduct audits relevant to the
performance of the Seller’s obligations under this Agreement.
(b)
The Commonwealth may, at reasonable times and on giving reasonable notice to
the Seller:
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(i)
require the Seller or its Representatives to provide documentation, books,
records and information that are directly related to this Agreement; and
(ii)
have access to the premises of the Seller to the extent necessary for the
Commonwealth to exercise its rights under clause 17.1(a).
(c)
The Seller must provide the Commonwealth with any reasonable assistance
requested by the Commonwealth in relation to:
(i)
its exercise of its rights under this clause 17; and
(ii)
any inquiry into or concerning this Agreement including any administrative or
statutory review, audit or inquiry, any request for information directed to the
Commonwealth, and any inquiry conducted by Parliament or any
parliamentary committee.
17.2
Auditor-General, Information Commissioner, Privacy Commissioner or
Freedom of Information Commissioner
(a)
The rights of the Commonwealth under clause 17.1 apply equally to the Auditor-
General, Information Commissioner, Privacy Commissioner and Freedom of
Information Commissioner, or his or her delegate, for the purpose of performing the
Auditor-General's, Information Commissioner's, Privacy Commissioner's or Freedom
of Information Commissioner's statutory functions or powers.
(b)
The Seller must do all things necessary to comply with the Auditor-General's,
Information Commissioner's, Privacy Commissioner's or Freedom of Information
Commissioner's, or his or her delegate's requirements notified under clause 17.1,
provided that such requirements are legally enforceable and within the power of the
Auditor-General, Information Commissioner, Privacy Commissioner or Freedom of
Information Commissioner, or his or her respective delegate.
17.3
Survival
The obligations under this clause 17 apply during the term of this Agreement and continue
for seven years from the expiry or termination of this Agreement.
18.
Goods and services tax
18.1
Interpretation
In this clause 18:
(a)
words or expressions used in this clause which have a particular meaning in the
GST law (as defined in the GST Act, and also including any applicable legislative
determinations and Australian Taxation Office public rulings) have the same
meaning, unless the context otherwise requires;
(b)
any reference to GST payable by a party includes any corresponding GST payable
by the representative member of any GST group of which that party is a member;
(c)
any reference to an input tax credit entitlement by a party includes any
corresponding input tax credit entitlement by the representative member of any GST
group of which that party is a member; and
(d)
if the GST law treats part of a supply as a separate supply for the purpose of
determining whether GST is payable on that part of the supply or for the purpose of
determining the tax period to which that part of the supply is attributable, such part
of the supply is to be treated as a separate supply.
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18.2
Payment of GST
(a)
Unless GST is expressly included, the consideration to be paid or provided under
any other clause of this Agreement for any supply made under or in connection with
this Agreement does not include GST.
(b)
The parties believe that no GST is payable in respect of any supply pursuant to
clause 2. If, for any reason, that supply is not GST-free but is a taxable supply and,
to the extent that any other supply made under or in connection with this Agreement
is a taxable supply, the GST-exclusive consideration to be paid or provided for that
taxable supply is increased by the amount of any GST payable in respect of that
taxable supply and that amount must be paid at the same time and in the same
manner as the GST-exclusive consideration is to be paid or provided.
(c)
A party’s right to payment under clause 18.2(b) is subject to a valid tax invoice being
delivered to the party who is the recipient of the taxable supply.
(d)
To the extent that a party is required to reimburse or indemnify another party for a
loss, cost or expense incurred by that other party, that loss, cost or expense does
not include any amount in respect of GST for which that other party is entitled to
claim an input tax credit.
19.
General
19.1
Further assurances
(a)
Each party must promptly at its own cost do all things (including executing and if
necessary delivering all documents) necessary or desirable to give full effect to this
Agreement.
(b)
Without limiting clause 19.1(a), the Seller must do (at the Seller’s cost) all things
(such as executing, and procuring third parties to execute, deeds, documents and
instruments, including, if the Relevant State is New South Wales, a dealing form W-
01T under section 71M of the
Water Management Act 2000 (NSW)) reasonably
required by the Commonwealth for the Transfer or for the transfer of Water
Allocation to the Commonwealth under clause 11.1.
(c)
The Seller irrevocably authorises the Commonwealth (and its agents) to alter:
(i)
the Application;
(ii)
the Transfer Documents; and
(iii)
the Releases,
by inserting such details as are omitted in respect of the Seller’s Water Entitlements
and by rectifying any errors in, or omissions from, the document as may be
necessary to make it an effective document.
19.2
Entire understanding
(a)
This Agreement:
(i)
is the entire agreement and understanding between the parties on everything
connected with the subject matter of this Agreement; and
(ii)
supersedes any prior agreement or understanding on anything connected with
that subject matter.
(b)
Accordingly, any thing (such as correspondence, negotiations or representations
before this document is executed or an arrangement or understanding) not reflected
in this Agreement does not bind the parties and may not be relied on by them.
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(c)
Each party has entered into this Agreement without relying on any representation
(whether or not negligently) by any other party or any person purporting to represent
that other party.
19.3
Variation
An amendment or variation to this Agreement is not effective unless it is in writing and
signed by the parties.
19.4
Waiver
(a)
A party’s failure or delay to exercise a power or right does not operate as a waiver of
that power or right.
(b)
The exercise of a power or right does not preclude either its exercise in the future or
the exercise of any other power or right.
(c)
A waiver is not effective unless it is in writing.
(d)
Waiver of a power or right is effective only in respect of the specific instance to
which it relates and for the specific purpose for which it is given.
19.5
Rights, powers and remedies
(a)
The rights, powers and remedies of any party under this Agreement are additional to
other rights, powers and remedies independently given by law.
(b)
In exercising or enforcing, or deciding not to exercise or enforce, a right, power or
remedy, a party is not required to take into account any adverse effect on another
party.
(c)
Each party agrees to comply with the conditions of any approval, consent or waiver
given by another party.
19.6
Continuing obligations
The rights and obligations of the parties do not merge on the completion of any
transaction contemplated by this Agreement. They also survive the execution and
delivery of any conveyance, assignment, transfer or other document entered into for the
purpose of implementing any transaction contemplated by this Agreement.
19.7
Costs and outlays
(a)
Each party must pay its own costs and outlays connected with the negotiation,
preparation and execution of this Agreement.
(b)
The Commonwealth must pay when due all Stamp Duty and all associated fines,
penalties and interest payable as a result of the signing or execution of this
Agreement and on all Transfer Documents specifically identified in clauses
1.1(uu)(i),(ii) and (iii).
(c)
The Seller must pay when due all Stamp Duty and all associated fines penalties and
interest payable in connection with:
(i)
this Agreement or any transaction contemplated by this Agreement, other than
the amounts to which clause 19.7(b) refers;
(ii)
any Transfer Document not specifically identified in clauses 1.1(uu)(i),(ii) or (iii)
(such as, if the Relevant State is New South Wales, a dealing form W-01T
under section 71M of the
Water Management Act 2000 (NSW));
(iii)
any Release or any Encumbrance to which a Release relates; or
(iv) any other document or instrument executed under or in connection with this
Agreement or any transaction contemplated by this Agreement.
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(d)
Subject to this clause 19.7, any action to be taken by a party in performing its
obligations under this Agreement must be taken at its own cost and expense unless
otherwise provided in this Agreement.
19.8
Notices
(a)
A Notice has no legal effect unless it is in writing.
(b)
In addition to any other method of service provided by law, the Notice may be:
(i)
sent by prepaid post to the address for service of the addressee;
(ii)
sent by facsimile to the facsimile number of the addressee; or
(iii)
sent by e-mail to the e-mail address of the addressee.
(c)
If the Notice is sent or delivered in a manner provided by clause 19.8(b), it must be
treated as given to and received by the party to which it is addressed:
(i)
if sent by post, on the second Business Day (at the address to which it is
posted) after posting; or
(ii)
if sent by facsimile or e-mail before 5 pm on a Business Day at the place of
receipt, on the day it is sent and otherwise on the next Business Day at the
place of receipt.
(d)
A Notice sent or delivered in a manner provided by clause 19.8(b) must be treated
as validly given to and received by the party to which it is addressed even if:
(i)
the addressee has been liquidated or deregistered or is absent from the place
at which the Notice is delivered or to which it is sent;
(ii)
the Notice is returned unclaimed; or
(iii)
in the case of a Notice sent by e-mail, the e-mail message is not delivered or
opened (unless the sender’s computer reports that it has not been delivered).
(e)
The Seller’s addresses for service, facsimile numbers and e-mail addresses are
those specified in items 2.1, 2.2 and 2.3 of the Transaction Details. A Notice must
be treated as given to the Seller if it is sent to any of those addresses for service,
facsimile numbers or e-mail addresses.
(f)
The Commonwealth’s address for service, facsimile number and e-mail address are
those specified in item 2.4 of the Transaction Details.
(g)
A party may change its address for service, facsimile number or e-mail address by
giving Notice of that change to the other party.
(h)
If the party to which a Notice is intended to be given consists of more than
one person then the Notice must be treated as given to that party if given to any of
those persons.
(i)
Any Notice by a party may be given, and may be signed, by its solicitor or broker.
19.9
No assignment
(a)
The Seller may not assign or deal with or purport to assign or deal with its rights
under this Agreement, or create or allow to exist any third party interest over them,
without the prior written consent of the Commonwealth. The Commonwealth is not
required to give consent or justify the withholding of consent.
(b)
Any act or omission in contravention of clause 19.9(a) is ineffective.
19.10 Governing law and jurisdiction
(a)
The law of the Relevant State governs this Agreement.
(b)
The parties submit to the non-exclusive jurisdiction of the courts of the Australian
Capital Territory and of the Commonwealth of Australia.
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19.11 Execution by attorney
Where this Agreement is executed by an attorney, that attorney, by executing, declares
that it has no notice of revocation, termination or suspension of the power of attorney
under which it executes this Agreement.
19.12 Counterparts
(a)
This Agreement may be executed in any number of counterparts. Each counterpart
is an original but the counterparts together are one and the same agreement.
(b)
This Agreement is binding on the parties on the exchange of counterparts. A copy
of a counterpart sent by facsimile machine or e-mail:
(i)
must be treated as an original counterpart;
(ii)
is sufficient evidence of the execution of the original; and
(iii)
may be produced in evidence for all purposes in place of the original.
19.13 Workplace Gender Equality Act 2012 (Cth)
(a)
This clause 19.13 applies only to the extent that the Seller is a ‘relevant employer’
for the purposes of the
Workplace Gender Equality Act 2012 (Cth) (the WGE Act).
(b)
The Seller must comply with its obligations, if any, under the WGE Act.
(c)
If the Seller becomes non-compliant with the WGE Act during the term of the
contract, the Seller must notify the Department.
(d)
If the term of the contract exceeds 18 months, the Seller must provide a current
letter of compliance within 18 months from the date of commencement of the
contract and following this, annually, to the Department.
(e)
Compliance with the WGE Act does not relieve the Seller from its responsibility to
comply with its other obligations under the contract.
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Schedule 1 – Warranties
1.
The Seller
1.1
If the Seller is a body corporate
(a)
The Seller is duly incorporated and validly exists under the law of its place of
incorporation.
(b)
The Seller has full corporate power and authority to enter into this Agreement and
perform its obligations under this Agreement, to carry out the transactions
contemplated by this Agreement, and to own the Seller’s Water Rights.
(c)
The entry into and performance of this Agreement has been properly authorised by
all necessary corporate action of the Seller.
(d)
The entry into and performance of this Agreement and each transaction
contemplated by this Agreement does not and will not (with or without the giving of
notice or the lapse of time or both) contravene or conflict with or result in a breach of
or default under:
(i)
a law or treaty or a judgment, ruling, order or decree of a Government Agency
binding on the Seller;
(ii)
any Authorisation;
(iii)
the Seller’s constitution or other constituent documents; or
(iv) any other contract or commitment which is binding on the Seller.
(e)
The Seller:
(i)
is not wound up, no resolution for its winding up has been passed and no
meeting of members or creditors has been convened for that purpose;
(ii)
is not the subject of a winding up application which has been made to a court,
and no event has occurred which would entitle any person to apply to a court
to wind up the Seller;
(iii)
has not proposed or taken any steps to implement a scheme of arrangement
or other compromise or arrangement with any of its creditors;
(iv) is not the recipient of a demand under section 459E of the
Corporations Act
2001 (Cth) or any corresponding or analogous provision governing the Seller
in a jurisdiction outside Australia;
(v)
is not in receivership and none of its assets are in the possession of or under
the control of a mortgagee or chargee;
(vi) is not subject to administration under Part 5.3A of the
Corporations Act 2001
(Cth) or any corresponding or analogous provision governing the Seller in a
jurisdiction outside Australia; or
(vii) is not insolvent (as defined in section 95A of the
Corporations Act 2001 (Cth).
(f)
The Seller has not received from the Australian Securities and Investment
Commission or any corresponding or analogous Government Agency in a
jurisdiction outside Australia any notice warning of possible cancellation of
registration of the Seller.
1.2
If the Seller is a natural person
(a)
The Seller:
(i)
is not bankrupt, of unsound mind or incapable of managing his or her own
affairs;
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(ii)
has full legal capacity and power to enter into this Agreement and perform his
or her obligations under this Agreement, to carry out the transactions
contemplated by this Agreement, and to own his or her property and assets
and carry on his or her business; and
(iii)
is able to pay his or her debts as and when they fall due.
(b)
No application has been made for the bankruptcy of the Seller and the Seller has
not filed for bankruptcy.
(c)
No receiver, receiver and manager, trustee for creditors or trustee in bankruptcy or
analogous person has been appointed to any property or assets of the Seller and no
creditor of the Seller has taken possession of any property or assets of the Seller.
(d)
No voluntary arrangement has been proposed or reached with a creditor of the
Seller.
1.3
If the Seller is a trustee
(a)
The Seller is the only trustee of the Trust.
(b)
The Seller has not been removed from, or ceased to act, or resigned or retired from
the office of trustee of the Trust, nor has any decision or action been taken or
proposed in respect of the removal, resignation or retirement of the Seller as trustee
of the Trust, or to appoint an additional trustee of the Trust.
(c)
The Seller is not in default under the Trust deed.
(d)
The Seller has power under the Trust deed to enter into and observe the Trustee’s
obligations under this Agreement;
(e)
The Seller has entered in this Agreement in the Trustee’s capacity as trustee of the
Trust and for the benefit of the beneficiaries of the Trust.
(f)
The Seller has a right, and will at all times have a right, to be fully indemnified out of
the assets of the Trust in respect of the obligations incurred by the Seller under this
Agreement.
(g)
The assets of the Trust are sufficient to satisfy that right of indemnity and all other
obligations in respect of which the Seller has a right to be indemnified out of the
Trust fund.
1.4
If the Seller is not a trustee
The Seller is not entering into this Agreement as trustee of any trust or settlement.
1.5
General
(a)
No legal proceedings, arbitration, mediation or other dispute resolution process is
taking place, pending or threatened, the outcome of which is likely to have a
material and adverse affect on the ability of the Seller to perform its obligations
under this Agreement.
(b)
If an Australian Business Number has not been quoted to the Commonwealth by the
Seller, the Seller does not need to do so pursuant to one of the exemptions in the
Income Tax Administration Act 1953 (Cth).
2.
Information
2.1
True and accurate information
All information in this Agreement is true and accurate and is not misleading or deceptive.
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2.2
Complete disclosure
The Seller has disclosed to the Commonwealth all the information it possesses
concerning the Sale Volume which the Commonwealth would reasonably require to make
an informed assessment in relation to the Sale Volume.
3.
Seller’s water rights
3.1
Title
The Seller:
(a)
is the sole legal and (unless there is a Trust) beneficial owner of the Sale Volume;
and
(b)
has good and marketable title to the Sale Volume.
3.2
Other contracts
The Seller has not entered into any contract or commitment to dispose of the Sale
Volume.
3.3
Notice from a government agency
The Seller has not received a notice from a Government Agency which might interfere
with the rights of the Seller to own the Sale Volume and there are no facts or
circumstances that may give rise to any such notice being received by the Seller.
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Execution page
Executed as an agreement
SIGNED for and on behalf of the
Commonwealth of Australia as represented
by the
Department of Agriculture and
Water Resources (ABN 24 113 085 695) by
a duly authorised representative
Name of authorised representative (print)
Name of witness (print)
Signature of authorised representative
Signature of witness
Date
Date
Note to drafter: Select and complete the appropriate execution block for the entity with
which the Commonwealth is contracting from the list below and delete the rest.
[
For an individual]
SIGNED by [
insert name of individual]
in the presence of
Signature
Signature of witness
Date
Name of witness (print)
Date
[
For a company with two directors or a director and a secretary]
EXECUTED by [
insert name of company
and ABN] in accordance with section 127(1)
of the
Corporations Act 2001 (Cth) by
Name of Director (print)
Name of Director / Company Secretary (print)
Signature of Director
Signature of Director / Company Secretary
Date
Date
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[
For a company with a sole director / company secretary]
EXECUTED by [
insert name of company
and ABN] in accordance with section 127(1)
of the
Corporations Act 2001 (Cth) by
Name of Sole Director / Company Secretary
(print)
Signature of Sole Director / Company
Secretary
Date
[
For a company with a sole director and no company secretary]
SIGNED for and on behalf of [
insert name
of company and ABN] by its authorised
representative in the presence of
Name of Sole Director (print)
Name of witness (print)
Signature of Sole Director
Signature of witness
Date
Date
[For a partnership or an association]
SIGNED for and on behalf of [
insert name
in the presence of:
of partnership / association and ABN] by a
duly authorised representative who warrants
that they have the authority to sign this deed
on behalf of [
insert name of partnership /
association]
Name of authorised representative (print)
Name of witness (print)
Signature of authorised representative
Signature of witness
Date
Date
[
For an attorney]
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SIGNED for and on behalf of [
insert name
in the presence of:
of party] by [
his/her/its] attorney [
insert
name of attorney] under power of attorney
dated [
insert date]
Name of authorised representative (print)
Name of witness (print)
Signature of authorised representative
Signature of witness
Date
Date
[For a Trustee that is an individual]
SIGNED by [
insert name of Trustee]
in their
in the presence of:
capacity as Trustee for
[
insert name of
Trust and ABN (e.g. Smith Family Trust
ABN 12 123 123 123)]
Name of Trustee (print)
Name of witness (print)
Signature of Trustee
Signature of witness
Date
Date
[For a Trustee that is a company with a sole director]
SIGNED by [
insert name of Trustee]
in their
in the presence of:
capacity as Trustee for
[
insert name of
Trust and ABN (e.g. Smith Family Trust
ABN 12 123 123 123)] in accordance with
section 127 of the
Corporations Act 2001 (Cth) by:
Name of Sole Director / Company Secretary Name of witness (print)
(print)
Signature of Sole Director / Company
Signature of witness
Secretary
Date
Date
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Water Purchase Limited Tender
Condamine Balonne
Tender Application Form
PIN - 24666
Tender 2016-004
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Guide to completing and submitting this Tender Application Form
1. This Tender Application Form comprises:
Part 1: Tenderer details;
Part 2: Tenderer deed;
Part 3: Authority to search;
Part 4: Agent’s undertaking;
Part 5: Privacy Notice; and
Part 6: Information Management.
2. In this Tender Application Form:
(a)
Entitlement means a perpetual or ongoing entitlement, by or under a law of a State, to
exclusive access to a share of the water resources of a water resource plan area.
(b)
Eligible Entitlement means an Entitlement which has the characteristics required by
paragraph 3 of this Tender Application Form;
(c)
Closing Date means Wednesday 31 May 2017 at 2pm AEST.
(d)
Tender means this Tender Application Form and supporting materials.
(e)
Tender Application Form Requirements means the requirements set out at paragraph 4 of
this Tender Application Form.
(f)
Tenderer means any
entity which or person who submits a Tender or, where the context
requires, is proposing to submit a Tender.
3. Eligible Entitlements are entitlements that are:
(a)
Queensland overland flow entitlements from the Condamine Balonne.
(b)
able to be permanently traded;
(c)
located in a Water Management Area with a demonstrated need for additional environmental
water recovery; and
(d)
suitable for ongoing management by the Commonwealth Environmental Water Holder.
4. Tender Application Form Requirements
(a)
The Tender must be written in English.
(b)
Measurements must be expressed in Australian legal units of measurement.
(c)
Where a Tenderer wishes to tender for the sale of more than one Eligible Entitlement, a
Tenderer must complete a separate Part 1A of the Tender Application Form for each Eligible
Entitlement.
(d)
If a Tender is submitted, evidence that all registered owners of the Eligible Entitlement
consent to the Tender and have endorsed the Tender Application Form.
(e)
The Tenderer must exist as a legal entity at the Closing Date.
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(f)
The Tenderer must be the legal owner of the Eligible Entitlement or authorised by the legal
owner(s) to tender the Eligible Entitlement on their behalf.
The Department may exclude Tenders from further consideration if they do not meet one or more of
the Tender Application Form Requirements.
5. Evaluation Criteria
(a)
The Department wil assess the value of the Entitlement to the ‘Restoring the Balance in the
Murray-Darling Basin’ under the Sustainable Rural Water Use and Infrastructure Programme
based on the following critera
(i)
amount of water it is likely to provide over the long-term
(ii)
capacity to deliver the water to priority environmental assets
(iii)
current market price
(b)
The Department may at any time exclude a Tender from consideration if it reaches the view
that the Tender does not offer value for money or meets the stated evaluation criteria.
6. Responsibility for ensuring the completeness and accuracy of all Tenders rests with Tenderers.
7. Tenderers should ensure that any errors or alterations made to a Tender are clearly identified and,
where appropriate, initialled.
8. Tenderers can submit completed Tender Application Forms via one of the following methods:
Fax: (02) 6272 5626
Email: xxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Post: Water Purchase and Conveyance Section
Department of Agriculture and Water Resources
GPO Box 858
Canberra City ACT 2601
Tenders lodged by email must be in Microsoft Word or PDF format and should not exceed a file size of
5 megabytes.
9. Tenderers may seek clarification of the meaning of the content of this Tender Application Form by
contacting the Department, in writing, using the contact details set out at paragraph 8.
10. Tenders should be submitted by one means only (either by email or fax or by post) and should
comprise:
(a)
a signed copy of the Tender Application Form; and
(b)
a copy of the relevant Entitlement(s);
11. When a Tender Application Form is received by the Department, a receipt will be dispatched by return
email in the first instance.
12. The Department may seek any other supporting material it requires (including material evidencing a
Tenderer’s right to deal with the entitlement where the Tenderer is not the registered owner).
13. Tenderers are responsible for and must:
(a)
ensure that the total volume of the Eligible Entitlement offered does not exceed the total
nominal volume provided by the Queensland Government for that Entitlement;
(b)
provide proof of ownership of the Eligible Entitlement, and where applicable, material
evidencing a Tenderer’s right to deal with the Entitlement where the Tenderer is not the
registered owner. This might include power of attorney arrangements; and
(c)
ensure they have submitted all required material and provided the correct information in their
Tender Application Form, and other supporting material required by the Department (if
unsure, Tenderers should confirm relevant details with their water authority or advisors).
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14. The cost of decommissioning or reconfiguring Overland Flow works to meet the requirements of the
Multi-Year Accounting Rule will be the responsibility of the seller. It will be the responsibility of the seller
to arrange for these works and to ensure that, if required by the Queensland Department of Natural
Resources and Mines, they are certified by a Queensland Registered Professional Engineer.
15. It is the responsibility of Tenderers to ensure that any Tender/s is received by the Department by the
Closing Date.
16. Tenderers may Tender for the sale of one or more Eligible Entitlement using this Tender Application
Form. However, a separate Part 1A of this Tender Application Form must be submitted for each
Eligible Entitlement. Each Eligible Entitlement will be treated as a separate Tender.
17. The Department will aim to advise Tenderers whether Tenders are accepted or rejected within 90
business days after the Closing Date. However, the Department reserves the right to revise this
anticipated timeframe at any time.
18. All decisions on whether to accept or reject a Tender are final.
19. Any complaints about the conduct of this tender process should be directed to:
Director
Water Purchase and Conveyance Section
Water Division
Department of Agriculture and Water Resources
PO Box 858 Canberra, ACT, 2601
Email: xxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
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Lodgement Requirements
Is your Tender Application Form complete and correct?
Yes
Has your Tender Application Form been correctly signed (Parts 2, 3 and 4)
Yes
Have you provided a copy of the relevant Entitlement for each Eligible Entitlement Yes
which you have separately tendered for in this Tender Application Form?
Does your Tender otherwise comply with the Tender Application Form
Yes
Requirements?
Have you completed Part 2 Section 4 (a) – Conflict of Interest declaration?
Yes
Have you completed Part 2 Section 5 – Workplace Gender Equality Act 2012 (
Cth) Yes
Please do not submit this cover or instruction pages
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Part 1: Preliminary matters and Tenderer details
DEPARTMENT USE ONLY
ID:
WEPS Response No:
Date received: / /
Complete:
Receipt: E-mail / Fax / Post
1. Number of Eligible Entitlement(s) which are being separately tendered for in this Tender
Application Form:
Two
2. Tenderer details
Note: If the Eligible Entitlement(s) is/are jointly owned then the particulars of each Tenderer should be
provided on the Additional Details page of this Tender Application Form
Tenderer name:
Business name:
ABN / ACN:
Street Address:
Postal Address:
City/Town:
State:
Postcode:
Phone Number
Mobile:
(BH):
Email:
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The registered office
The principal place of business
The date and place of incorporation
If a company
and the ACN
List individual shareholders holding
20 per cent or more of any issued
share capital
Any related companies within the
meaning of section 50 of the
Corporations Act 2001 (Cth)
Provide details of the relevant trust
including a copy of the relevant trust
If a trustee
deed (and any variations to that
deed)
Provide details of the partnership
If a partnership
including a copy of the relevant
partnership agreement
3. Nominated contact
Note: If the nominated contact details are the same as Tenderer details, please leave blank.
Contact:
Agent Broker Solicitor
Name:
Business Name:
ABN / ACN:
Postal Address:
City/Town:
State:
Postcode:
Phone Number:
Mobile:
E-mail:
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Part 1A: Tender details
Tenderers may tender for the sale of more than one Eligible Entitlement. However, a separate Part 1A
of this Tender Application Form must be completed for each Eligible Entitlement.
1. Details of Eligible Entitlement (Tick boxes below as appropriate)
Water management area:
Entitlement type:
Condamine Balonne
Overland Flow
Ownership details (as per
water Entitlement)
Third Party Interests
Is there a seasonal water assignment, term
transfer or lease affecting the Eligible
Yes Name of the holder(s) of the term transfer/lease:
Entitlement which would affect your ability to
No
sell it?
2. Details of Tender
Note: You must attach a copy of your Entitlement or equivalent to the Tender for it to be considered.
Note: If Overland Flow with nominal, use nominal volume; if Overland Flow with surge, use Mean
Annual Diversion.
Total volume of your Eligible Entitlement
16,337 megalitres
Volume of Eligible Entitlement tendered for sale (
A
)
14,969 megalitres
Price per megalitre for this Tender (
B ) $ 2,745 per megalitre
Total price of Eligible Entitlement tendered for sale
(A x B) $ 41,089,905
Do you acknowledge that you would be responsible for any
decommissioning or reconfiguration of Overland Flow works to meet
the requirements of the state’s Multi-Year Accounting Rule? It is the
responsibility of the seller to arrange for these works and to ensure
Acknowledged
that, if required by the Queensland Department of Natural
Resources and Mines, they are certified by a Queensland
Registered Professional Engineer.
Do you give consent to being contacted to discuss your experience
with this tender process?
Yes
This tender process is being conducted as part of the Australian
Government’s ‘Restoring the Balance in the Murray-Darling Basin’
No
under the Sustainable Rural Water Use and Infrastructure
Programme.
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Part 1A: Tender details
Tenderers may tender for the sale of more than one Eligible Entitlement. However, a separate Part 1A
of this Tender Application Form must be completed for each Eligible Entitlement.
1. Details of Eligible Entitlement (Tick boxes below as appropriate)
Water management area:
Entitlement type:
Condamine Balonne
Overland Flow
Ownership details (as per
water Entitlement)
Third Party Interests
Is there a seasonal water assignment, term
transfer or lease affecting the Eligible
Yes Name of the holder(s) of the term transfer/lease:
Entitlement which would affect your ability to
No
sell it?
2. Details of Tender
Note: You must attach a copy of your Entitlement or equivalent to the Tender for it to be considered.
Note: If Overland Flow with nominal, use nominal volume; if Overland Flow with surge, use Mean
Annual Diversion.
Total volume of your Eligible Entitlement
14,190 megalitres
Volume of Eligible Entitlement tendered for sale (
A
)
14,190 megalitres
Price per megalitre for this Tender (
B ) $ 2,745 per megalitre
Total price of Eligible Entitlement tendered for sale
(A x B) $ 38,951,550
Do you acknowledge that you would be responsible for any
decommissioning or reconfiguration of Overland Flow works to meet
the requirements of the state’s Multi-Year Accounting Rule? It is the
responsibility of the seller to arrange for these works and to ensure
Acknowledged
that, if required by the Queensland Department of Natural
Resources and Mines, they are certified by a Queensland
Registered Professional Engineer.
Do you give consent to being contacted to discuss your experience
with this tender process?
Yes
This tender process is being conducted as part of the Australian
Government’s ‘Restoring the Balance in the Murray-Darling Basin’
No
under the Sustainable Rural Water Use and Infrastructure
Programme.
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Part 2: Tenderer deed
1. Tender
Each Tender constitutes an offer (Offer) to sell the Eligible Entitlement on the terms and conditions set
out in the Draft Contract available at
Attachment A and accordingly is capable of immediate
acceptance by the Commonwealth.
The Offer remains open for acceptance by the Commonwealth for 90 business days following the
Closing Date. However, the Department reserves the right to revise this timeframe at any time.
Where a Tenderer is unable to comply with clauses of the Draft Contract in respect of any Eligible
Entitlement to which the Tender relates, the Tenderer should provide a tabulated statement showing
clearly, and in order of the relevant clauses, its level of non-compliance.
To the extent that the Tender does not include complete information relating to matters required for the
completion of any Draft Contract, the Commonwealth may complete the contract at its reasonable
discretion, and the Tenderer shall execute the resultant contract.
2. Confidentiality
The Tenderer will not, and will ensure that its employees, agents or subcontractors do not, either
directly or indirectly record, divulge or communicate to any person any confidential information
concerning the affairs of the Department, the Commonwealth or a third party acquired or obtained in
the course of preparing a Tender, or any documents, data or information provided by the Department
and which the Department indicates to Tenderers is confidential or which Tenderers know or ought
reasonably to know is confidential.
3. Ethical Dealing
The Tenderer represents that its Tender has been compiled without the improper assistance of any
current or former Departmental officer, employee, contractor or agent and without the use of
information obtained unlawfully or in breach of an obligation of confidentiality to the Department.
The Tenderer represents that it has not:
(a)
engaged in misleading or deceptive conduct in relation to its Tender;
(b)
engaged in any collusive activity, anti-competitive conduct, or any other unlawful or unethical
conduct with any other Tenderer, or any other person in connection with the preparation of
their Tender;
(c)
attempted to solicit information from or influence improperly any current or former officer,
employee, contractor or agent of the Department, or violate any applicable laws or
Commonwealth policies regarding the offering of inducements in connection with the
process; or
(d)
otherwise acted in an unethical or improper manner or contrary to any law.
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4. Conflict of Interest
(a)
The Tenderer represents that, as at the date of this deed and having made all reasonable
enquiries, no conflict of interest exists or is likely to arise in relation to its Tender except in
relation to the following:
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
Insert details of any conflict of interest or otherwise insert ‘Not applicable’. Provide any
further information as attachments and/or in the Additional Details section of this Tender
Application Form.
(b)
Upon becoming aware of any actual or potential conflicts of interest in respect of its Tender,
or any contract for sale resulting from this tender process, the Tenderer undertakes to:
(i)
immediately notify the Department in writing of the conflict of interest making a full
disclosure of all relevant information relating to the conflict of interest and setting out
the steps it proposes to take to resolve or otherwise deal with the conflict of interest;
and
(ii)
take such steps as the Department may reasonably require to resolve or otherwise
deal with that conflict of interest.
5. Workplace Gender Equality Act 2012 (Cth)
Under Australian Government procurement policy, you are obliged to indicate whether or not your
organisation is covered by the
Workplace Gender Equality Act 2012 (Cth) (the WGE Act). Your
organisation is covered by the WGE Act if it is a ‘relevant employer’, defined as being a non-public
sector employer (including higher education institutions, trade unions and not-for-profit organisations)
of 100 or more employees in Australia. For information about the coverage of the WGE Act, contact the
Workplace Gender Equality Agency on (02) 9432 7000. Please complete the tick boxes below, as
relevant.
Yes, I am a relevant employer. (Non-public sector employer of 100 or more employees in
Australia.) I have attached a current letter of compliance as part of this submission which indicates
my compliance with the WGE Act.
Yes, I am a relevant employer. (Non-public sector employer of 100 or more employees in
Australia.) I will be providing a current letter of compliance prior to contract.
No, I am not a relevant employer (I am NOT a non-public sector employer of 100 or more
employees in Australia).
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Executed as a Deed Poll for the benefit of the Commonwealth of Australia.
Complete the applicable signature block/s below . Please contact the Department if the Tenderer
is a trustee or a partnership in order to obtain the appropriate execution block.
Individual Tenderers:
Include the full names and the signatures of EVERY owner whose name appears on the Entitlement(s)
who wishes to sell their share. Reprint this page and add details if there are more than three owners.
SIGNED SEALED AND DELIVERED by
Name of Tenderer: …………………….………
Name of Witness: …………………………………
Signature: ……………………………………….
Signature: ………………………………………….
Date: …………………………………………….
Date: ……………….……………………………….
Name of Tenderer: …………………….………
Name of Witness: …………………………………
Signature: ……………………………………….
Signature: ………………………………………….
Date: …………………………………………….
Date: ……………….……………………………….
Name of Tenderer: …………………….………
Name of Witness: …………………………………
Signature: ……………………………………….
Signature: ………………………………………….
Date: …………………………………………….
Date: ……………….……………………………….
Company Tenderers:
Where the Tenderers are companies, please ensure that one signature block is completed for EACH
Tenderer.
SIGNED SEALED AND DELIVERED by
Name of Company: ……………………………………………………..… ABN: ……………………………
in accordance with section 127(1) of the
Corporations Act 2001 (Cth) by:
Name of Director:
Name of Director / Company Secretary:
…………………………………………….………
…………………………………………….………
Signature: ……………………………………….
Signature: ………………………………………….
Date: …………………………………………….
Date: ……………….……………………………….
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Part 3: Authority to search
The Tenderer hereby authorises the disclosure of information
Entitlement number(s):
to the Department (or its solicitors) in relation to each of the
Entitlement(s) which are the subject of this Tender
Licence 602025 and Licence 602023
Application form and having the Entitlement number(s):
This consent ceases within 1 (one) year from the date of this authority or at the completion of the sale.
This consent includes, but is not limited to:
1. the number and security of Entitments held by the Tenderer;
2. the ownership of the Entitlement(s);
3. any associated landholdings and title references;
4. any water usage, temporary transfers and allocation held by or accruing to the Entitlement(s);
5. any third party interests;
6. any water deficit;
7. any financial or other liabilities; and
8. copies of any notices.
EXECUTED AS A DEED POLL for the benefit of the Commonwealth of Australia.
Complete the applicable signature block/s below .
Individual Tenderers: Include the full names and the signatures of EVERY owner whose name appears
on the Entitlement(s) who wishes to sell their share. Reprint this page and add details if there are more
than three owners.
SIGNED SEALED AND DELIVERED by
Name of Tenderer: …………………….………
Name of Witness: …………………………………
Signature: ……………………………………….
Signature: ………………………………………….
Date: …………………………………………….
Date: ……………….……………………………….
Name of Tenderer: …………………….………
Name of Witness: …………………………………
Signature: ……………………………………….
Signature: ………………………………………….
Date: …………………………………………….
Date: ……………….……………………………….
Name of Tenderer: …………………….………
Name of Witness: …………………………………
Signature: ……………………………………….
Signature: ………………………………………….
Date: …………………………………………….
Date: ……………….……………………………….
Company Tenderers: Where the Tenderers are companies, please ensure that one signature block is completed for EACH Tenderer.
SIGNED SEALED AND DELIVERED by
Name of Company: ……………………………………………………..… ABN: ……………………………
in accordance with section 127(1) of the
Corporations Act 2001 (Cth) by:
Name of Director:
Name of Director / Company Secretary:
…………………………………………….………
…………………………………………….………
Signature: ……………………………………….
Signature: ………………………………………….
Date: …………………………………………….
Date: ……………….……………………………….
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Part 4: Agent’s undertaking
Note: Any agent with authority to submit the Tender on behalf of a Tenderer is required to complete
this undertaking. Tenderers must still sign as required in all other parts of this Tender Application
Form. The agent must also provide a copy of evidence confirming the basis of the authority to act
on behalf of the Tenderer. This may include a power of attorney. Where multiple Tenderers are
represented by multiple agents, EACH agent must sign a separate undertaking.
I,_____________________________________of__________________________________________
(Broker or Solicitor – please print name) (Company – please print name)
have been instructed by ……………………………………………. (the
Tenderer) to submit this Tender
to the Department of the Agriculture and Water Resources with the details as listed. I have full authority
to submit this Tender on the Tenderer’s behalf.I have confirmed with the Tenderer that they have not
put in another, identical Tender at this time either on their own accord or through another broker or
solicitor.
Basis of authority to deal:…………………………………………… Evidence attached? Yes No
Signature: ……………………………………….
Date: ……………….……………………………….
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Part 5: Privacy Notice
Issued pursuant to Australian Privacy Principle 5 of the Privacy Act 1988 (Cth) (Privacy Act).
Purpose for collection of personal information
‘Personal information’ means information or an opinion about an identified individual, or an individual
who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
Personal information collected as part of this Tender will be used for the purpose of evaluating
Tenders. This may include:
(a)
using the personal information to conduct checks/security checks/compliance etc;
(b)
undertaking searches of relevant registers and or investigations with State/ Territory
authorities;
(c)
reporting on successful and unsuccessful Tenders; and
(d)
undertaking further due diligence and effecting the conveyance process.
Authorisation for collection
The collection of personal information for the above purposes is not expressly authorised or required
by law.
Disclosure of personal information
The name, contact details and Australian Business Number (ABN) of successful Tenderers will be
available on the AusTender website consistent with the requirements of the
Public Governance,
Performance and Accountability Act 2013 (Cth) and the Commonwealth Procurement Rules to disclose
the details of successful contracts.
Any personal information collected may be disclosed:
(a)
to the Minister and his office;
(b)
within the department or other Commonwealth and State agencies where this serves the
legitimate interest of the Australian Government;
(c)
to legal service providers engaged by the Department to undertake due diligence and
conveyancing;
(d)
to service providers engaged by the Department to undertake due diligence on the
infrastructure components of the Request for Tender;
(e)
in response to a request by a House or a Committee of the Parliament of the Commonwealth
of Australia; and
(f)
where the information is authorised or required by law to be disclosed or where the
information is in the public domain otherwise than by the Department’s disclosure;
(g)
by being published on the AusTender website (http://www.tenders.gov.au) (for example,
publication of notice of the contract to purchase water entitlements); and
(h)
by being published on the Department of Agriculture and Water Resources website
(http://www.agriculture.gov.au/about/grants/index.html).
There are instances where the Department is authorised or required by law to disclose your information
including:
(a)
where an application is made under the
Freedom of Information Act 1982 (Cth);
(b)
where the Department has been served with a valid search warrant; and
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(c)
where the Department has a duty to disclose the transfer of funds under the
Anti-Money
Laundering and Counter-Terrorism Financing Act 2006 (Cth).
The Department’s Privacy Policy contains information about how you may:
access and seek correction of your personal information held by this Department; and
complain to the Department about a breach of the Australian Privacy Principles or the Privacy
Act.
A copy of the Department’s Privacy Policy, can be accessed at:
http://www.agriculture.gov.au/about/privacy
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Part 6: Information Management
The Department’s confidential information
(b)
Tenderers should not and should ensure that their employees, agents or subcontractors do
not, either directly or indirectly record, divulge or communicate to any person any confidential
information concerning the affairs of the Department, the Commonwealth or a third party
acquired or obtained in the course of preparing a Tender, or any documents, data or
information provided by the Department and which the Department indicates to Tenderers is
confidential or which Tenderers know or ought reasonably to know is confidential.
(c)
The Department may exclude from further consideration any Tender lodged by a Tenderer
who has engaged in any behaviour contrary to paragraph (a).
Tenderer’s confidential information
(d)
Subject to paragraphs (d) and (e), the Department will treat as confidential all Tenders
submitted by Tenderers.
(e)
The Department will not be taken to have breached any obligation to keep information
provided by Tenderers confidential to the extent that the information:
(i)
is disclosed by the Department to its advisers, officers, employees or subcontractors
solely in order to evaluate this Tender or to prepare and manage any resultant
contract;
(ii)
is disclosed to the Department’s internal management personnel, solely to enable
effective management or auditing of the evaluation process;
(iii)
is disclosed to the Auditor-General, Ombudsman, Information Commissioner, Privacy
Commissioner and Freedom of Information Commissioner, or his or her delegate, for
the purpose of performing the Auditor-General’s, Ombudsman’s Information
Commissioner’s, Privacy Commissioner’s or Freedom of Information Commissioner’s
statutory functions or powers;
(iv) is disclosed by the Department to the responsible Minister;
(v)
is disclosed by the Department in response to a request by a House or a Committee of
the Parliament of the Commonwealth of Australia;
(vi) is shared by the Department within the Department’s organisation, or with another
Commonwealth the Department, where this serves the Commonwealth’s legitimate
interests;
(vii) is authorised or required by law to be disclosed;
(viii) is in the public domain otherwise than due to a breach of the relevant obligations of
confidentiality; or
(ix) is disclosed with the written consent of the Tenderer.
(f)
If a contract is entered into with a successful Tenderer, the successful Tenderer's Tender will
not necessarily be treated as confidential. Tenderers should clearly identify in their Tender
the information that they consider should be protected as confidential information (if any)
should a contract be entered into with them. The Department will only consider a request for
confidentiality where:
(i)
the information to be protected is identified in specific rather than global terms;
(ii)
the information is by its nature confidential; and
(iii)
disclosure would cause detriment to the parties concerned.
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Disclosure of Information
(g)
The
Freedom of Information Act 1982 (FOI Act) gives members of the public rights of access
to documents in the possession of the Australian Government and its agencies. The FOI Act
extends as far as possible the right of the Australian community to access information
(generally documents) in the possession of the Australian Government, limited only by
exceptions and exemptions necessary for the protection of essential public interests and of
the private and business affairs of persons in respect of whom information is collected and
held by departments and public authorities.
(h)
All sensitive business information or confidential data which a Tenderer provides in its tender
and considers should be exempt from disclosure under the FOI Act should be clearly
indicated in the Tender.
Use of Tender documents
(i)
All Tenders become the property of the Department upon submission.
(j)
Notwithstanding paragraph (h) and without prejudice to anything agreed in any subsequent
contract, ownership of intellectual property in the information contained in a Tender remains
unchanged.
(k)
However, the Department may use any material contained in a Tender, or otherwise
provided by the Tenderer, for the purposes of the evaluation process and the preparation
and management of any resultant contract.
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Additional details
…………………………………………………………………………………………………………………
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…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
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…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
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s. 47F(1)
s. 47F(1)

s 42(1), s 47(1), s 47F(1) & s 22
s. 47F(1)
s. 47F(1)
s. 47F(1)
s. 22(1)(a)(ii)

s 42(1), s 47(1) & s 47F(1)
s. 47F(1)

s. 47F(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s 42(1), s 47(1) & s 47F(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)

s 42(1), s 47(1) & s 47F(1)
s. 47F(1)

s. 47F(1) s. 47F(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1),s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)

s. 47F(1)
s 42(1), s 47(1) & s 47F(1)
s 42(1), s 47F& s 22
s. 22(1)(a)(ii)
s. 47F(1)
s. 22(1)(a)(ii) s. 22(1)(a)(ii) s. 22(1)(a)(ii)
s. 22(1)(a)(ii)
s. 22(1)(a)(ii)
s. 22(1)(a)(ii)
s 42(1), s 47F(1) & s 45
s. 47F(1)
s 42(1), s 47F(1) & s 45(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s 42(1) & s 45
s 42(1) & s 45
s 42(1) & s 45
s 42(1) & s 45

s 42(1), s 47F(1) & s 45
s. 47F(1)
s. 47F(1)
s. 47F(1)

s 42(1), s 47F(1) & s 45
s. 47F(1)
s. 47F(1)
s. 47F(1)

s 42(1), s 47F(1) & s 45(1)
s. 47F(1)
s. 47F(1)
s. 47F(1)
s 42(1) & s 45
s 42(1) & s 45
s 42(1) & s 45
s 42(1) & s 45
s 42(1) & s 45
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)
s 42(1)