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ENVIRONMENTAL WATER DELIVERY AGREEMENTAgreement in relation to the delivery of environmental water to environmental assets in the lower River Murray, South Australia

Commonwealth of Australia as represented by the Commonwealth Environmental Water Holder within the Department of Sustainability, Environment, Water, Population and Communities ABN 34 190 894 983 (CEWH)

Nature Foundation South Australia Inc. ABN 24 131 531 874 (Delivery Partner)

Table of ContentsTable of Contents ii

Details 1

Agreed Terms 21. Definitions and interpretation 22. Duration and effect of Agreement 63. Environmental Watering Proposals 64. Licences, works and extraction arrangements 85. Consents and compliance with Laws 96. Delivery Partner obligations 107. Acknowledgement and related events 118. Access to premises and records 119. Insurance 1210. Protection of personal information 1311. Confidentiality 1312. Termination and expiry 1413. Indemnity and release 1514. Notices and other communications 1615. Survival 1716. Miscellaneous 17

Schedule 1 – Agreement Details 19

Schedule 2 – Watering Schedule 21

Schedule 3 – Certification of affected party consent 25

Signature page 27

Agreement in relation to the delivery of environmental water to environmental assets in the lower River Murray, South Australiapage ii

Details

Parties1. Commonwealth of Australia as represented by the Commonwealth Environmental

Water Holder within the Department of Sustainability, Environment, Water, Population and Communities ABN 34 190 894 983 (CEWH).

2. Nature Foundation South Australia Inc. ABN 24 131 531 874 (Delivery Partner).

RecitalsA. The CEWH is established under the Water Act 2007 (Cth) (the Act) to, amongst other

matters, manage Commonwealth environmental water holdings for the purposes of protecting or restoring environmental assets.

B. The functions of managing Commonwealth environmental water holdings include entering into contracts or other arrangements in relation to the taking or use of Commonwealth environmental water.

C. The Delivery Partner approached the CEWH seeking agreement in relation the delivery of environmental water to environmental assets in the lower River Murray, South Australia.

D. The CEWH has determined that the delivery of environmental water on the terms of this Agreement would be consistent with the functions of the Commonwealth Environmental Water Holder and that the processes it establishes will ensure watering events (Events):

(i) are consistent with the relevant environmental watering plan; and

(ii) will protect or restore environmental assets.

E. The CEWH and the Delivery Partner have agreed to formalise their arrangement on the terms set out in this Agreement.

Agreement in relation to the delivery of environmental water to environmental assets in the lower River Murray, South Australiapage 1

Agreed Terms1. Definitions and interpretation

1.1 DefinitionsIn this Agreement, except where the contrary intention is expressed, the following definitions are used:

Additional Undertakings

any additional undertaking(s) made by the Delivery Partner in its Watering Proposal and set out in the Watering Schedule including:

(a) the performance of any action, activity or works; and

(b) the provision of any in kind or cash contributions.

Agreed Terms clauses 1 to 16 of this Agreement which set out the terms and conditions agreed by the parties.

Agreement this Agreement between the CEWH and the Delivery Partner and includes:

(a) the Agreement Details;

(b) the Agreed Terms;

(c) each Watering Schedule; and

(d) any annexures or attachments.

Agreement Details the details set out in Schedule 1 to this Agreement, as amended or replaced from time to time.

Business Day in relation to the doing of any action in a place, any day other than a Saturday, Sunday or public holiday in that place.

CEWH the Commonwealth Environmental Water Holder situated within the Department of Sustainability, Environment, Water, Population and Communities or any other agency that administers this Agreement from time to time.

Commencement Date the date on which this Agreement commences, as specified in Item 14 of the Agreement Details.

Commonwealth Environmental Water Holdings

has the meaning given under the Water Act 2007 (Cth).

Confidential Information

information that is by its nature confidential and:

(a) is designated by a party as confidential;

(b) is described in the Agreement Details or a Watering Schedule; or

(c) a party knows or ought to know is confidential,


but does not include:

(d) information which is or becomes public knowledge other than by breach of this Agreement or any other confidentiality obligation.

Consent Authorities Department of Environment, Water and Natural Resources South Australia

Corporations Act the Corporations Act 2001 (Cth).

Delivery Costs the costs associated with:

(a) delivery of the Environmental Water (including pumping charges and operation costs); and

(b) Consent Authority, State or Territory Stakeholder approval.

Delivery Date the date or dates and time at which the Environmental Water will be delivered to the Environmental Asset.

Delivery Partner Nature Foundation South Australia Inc. ABN 24 131 531 874

Electronic Communication

has the same meaning as in the Electronic Transactions Act 1999 (Cth).

Environmental Asset means an environmental asset for the purposes of the Water Act 2007 (Cth) as identified by the Delivery Partner and agreed by the CEWH in accordance with clause 3.1.

Environmental Water water to be provided from the Commonwealth Environmental Water Holdings to be transferred to the Delivery Partner in respect of a particular Event.

Framework for Determining Commonwealth Environmental Water Use

the CEWH’s framework for determining Commonwealth environmental water use available at http://www.environment.gov.au/ewater/publications/cewh-framework.html as may be updated from time to time.

Electronic Communication

has the same meaning as in the Electronic Transactions Act 1999 (Cth).

Event the delivery of Environmental Water, to be completed by the Delivery Partner in accordance with a Watering Schedule as contemplated by clause 2.3(c).

Maximum Volume the volumetric limit of the CEWH’s commitment to provide Environmental Water on an annual basis or over the Term as specified in the Agreement Details.

Milestones the major milestones to be met by the Delivery Partner and the CEWH in completing an Event.

Key Criteria the criteria available in full at http://www.environment.gov.au/ewater/publications/criteria-current.html but generally comprising:


http://www.environment.gov.au/ewater/publications/criteria-current.html

http://www.environment.gov.au/ewater/publications/criteria-current.html

http://www.environment.gov.au/ewater/publications/cewh-framework.html

http://www.environment.gov.au/ewater/publications/cewh-framework.html

(a) ecological significance of the Environmental Asset(s);

(b) expected ecological outcomes from the Event;

(c) potential risks of the Event at the site and at connected locations;

(d) long-term sustainability of the Environmental Asset(s) including appropriate management arrangements; and

(e) cost effectiveness and operational feasibility of undertaking the Event,

as updated by the CEWH from time to time.

Law 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:

(a) the Environment Protection and Biodiversity Conservation Act 1999 (Cth);

(b) the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth);

(c) State and Territory water management laws;

(d) State and Territory environment protection and land use/ planning legislation; and

(e) work health and safety laws.

Losses liabilities, expenses, losses, damages and costs (including but not limited to legal costs on a full indemnity basis, whether incurred by or awarded against a party).

Personnel in relation to a party, any natural person who is an employee, officer, agent or professional adviser of that party.

Privacy Act the Privacy Act 1988 (Cth).

Project Officer the CEWH or Delivery Partner’s contact person identified in the Agreement Details.

Risk Assessment a risk assessment undertaken in accordance with the template provided by the CEWH.

State or Territory Stakeholders

Department of Environment, Water and Natural Resources South Australia.

Term the term if this Agreement as set out in clause 2.1.

Watering Objectives the stated objectives of a particular Event as identified in a Watering Schedule.

Watering Proposal a proposal submitted by the Delivery Partner in accordance with clause 3.1 in relation to a proposed


Event.

Watering Schedule a schedule recording the terms upon which a Delivery Partner is to conduct an Event as endorsed by the CEWH.

1.2 InterpretationIn this Agreement, except where the contrary intention is expressed:

(a) the singular includes the plural and vice versa, and a gender includes other genders;

(b) another grammatical form of a defined word or expression has a corresponding meaning;

(c) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(d) a reference to time is to the time in the place where the obligation is to be performed;

(e) a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assignees and substitutes;

(f) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

(g) a reference to a statute, ordinance, code or other Law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(h) a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act;

(i) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(j) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

(k) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;

(l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; and

(m) headings are for ease of reference only and do not affect interpretation.

1.3 Priority of documentsIf there is inconsistency between any of the documents forming part of this Agreement, those documents will be interpreted in the following order of priority to the extent of any inconsistency:

(a) the Agreed Terms;

(b) Agreement Details;

(c) a Watering Schedule


(d) any annexures or attachments; and

(e) documents incorporated by reference in this Agreement.

2. Duration and effect of Agreement2.1 Commencement

This Agreement is effective on and from the Commencement Date and continues in force for the Term unless terminated earlier in accordance with clause 12.

2.2 Effect of Agreement The parties acknowledge and agree that this Agreement records their agreement in relation to the transfer of Commonwealth Environmental Water Holdings and the delivery of that water to Environmental Assets for the protection or restoration of that asset.

2.3 Process(a) The Delivery Partner may, from time to time over the Term of this Agreement,

submit Watering Proposals for consideration and evaluation by the CEWH.

(b) Where a Watering Proposal is approved by the CEWH the parties will prepare and endorse a Watering Schedule which identifies the particulars of the Event including the Delivery Date, the Environmental Water, relevant Consent Authorities, approval requirements, liability for Delivery Costs, Milestones and which incorporates the terms of the approved Watering Proposal.

(c) The terms upon which each Event will be undertaken will be dictated by:

(i) the terms of this Agreement (including all warranties and undertakings of the Delivery Partner); and

(ii) the Watering Schedule.

(d) Not more than 2 Business Days before the Delivery Date (or such other time as may be notified by the CEWH), the Delivery Partner must prepare and submit a final Risk Assessment which provides a revised assessment of the risks associated with conduct of the Event.

2.4 Adjustment of Maximum Volume(a) The parties have agreed a Maximum Volume of Environmental Water.

(b) The CEWH may, prior to the commencement of each water year and during the Term, review the Maximum Volume.

(c) Where the Maximum Volume is not available the CEWH will notify the Delivery Partner of an adjusted Maximum Volume.

3. Environmental Watering Proposals3.1 Submission of Watering Proposals

(a) The Delivery Partner may, from time to time, submit a Watering Proposal under which it seeks the CEWH’s consent to delivery of Environmental Water.

(b) The Delivery Partner must ensure that each Watering Proposal:

(i) contains the information contemplated in Schedule 2;

(ii) details of the basis upon which delivery of the Environmental Water will protect or restore the Environmental Asset and demonstrates how the proposed Event will meet the Key Criteria;


(iii) is prepared in consultation with the CEWH;

(iv) identifies the volume and quality of Environmental Water sought;

(v) identifies the Environmental Asset to which the Environmental Water is to be delivered;

(vi) details the particulars of the proposed Event and provides all relevant details and documents (including satellite images, fixed-point photographs and maps) clearly identifying affected and potentially affect areas, the proposed location and condition of the Environmental Asset where Environmental Water will be delivered;

(vii) includes a Risk Assessment;

(viii) includes a plan for ensuring:

(A) interested and affected third parties are appropriately consulted;

(B) the consents and permissions contemplated by clause 4 and 5 are obtained;

(C) the approval of any Consent Authorities are obtained; and

(D) State or Territory Stakeholders are appropriately consulted and engaged;

(ix) identifies the Delivery Costs associated with the Watering Proposal and whether it is proposed that the Delivery Partner or the CEWH will bear those costs;

(x) identifies any Additional Undertakings; and

(xi) identifies whether the Delivery Partner has:

(A) a licence to which the Environmental Water may be transferred; and

(B) works or extraction approvals,

or whether, having regard to the options contemplated by clause 4, alternative arrangements will need to be made.

(c) The CEWH will review and evaluate Watering Proposals submitted under this Agreement in accordance with the Framework for Determining Commonwealth Environmental Water Use (in particular the Key Criteria), and may approve or reject a proposal at its discretion.

3.2 Approval of Watering Proposal(a) Unless the Delivery Partner is otherwise notified by the CEWH, the CEWH will

reject or approve the draft Watering Proposal within 14 Business Days of submission by the Delivery Partner under clause 3.1(a).

(b) Where the draft Watering Proposal is rejected, the Delivery Partner must re-submit a revised draft Watering Proposal, including any necessary amendments, until the CEWH approves it or the Delivery Partner otherwise determines it does not wish to proceed with the proposed Event.

(c) Once a draft Watering Proposal is approved by the CEWH, the CEWH will prepare and issue a Watering Schedule (which will attach the approved Watering Proposal) and the Delivery Partner must perform its obligations (including the Event) in accordance with that Watering Schedule.


(d) For the avoidance of doubt, the CEWH’s approval of a Watering Proposal does not in any way limit the Delivery Partner’s responsibility for the performance of its obligations under this Agreement and any consequences of that performance.

(e) Nothing in this Agreement will oblige the CEWH to approve a Watering Proposal where:

(i) it does not meet the requirements outlined in clause 3.1(b) above;

(ii) it would commit the CEWH to delivery of an amount of water above the Maximum Volume;

(iii) the CEWH considers that the proposal does not satisfy the Framework for Determining Commonwealth Environmental Water Use.

4. Licences, works and extraction arrangements4.1 Where Delivery Partner has requisite licences, permissions and approvals

(a) Where the Delivery Partner identifies in a Watering Proposal that:

(i) it holds a water access licence to which the Environmental Water could be transferred – the CEWH will arrange to transfer the Environmental Water to the Delivery Partner’s licence; and

(ii) it holds the requisite works and extraction permits, permissions and licences (if relevant) – the Delivery Partner will utilise its rights under those permits, permissions and licences to complete the Event in accordance with a Watering Schedule.

(b) The Delivery Partner is responsible for ensuring that:

(i) these arrangements are appropriate having regard to the proposed Event and the Watering Objectives; and

(ii) the consent of relevant Consent Authorities, State and Territory Stakeholders and river operators is obtained.

4.2 State or Territory Stakeholder involvement(a) Where the Delivery Partner identifies in a Watering Proposal that:

(i) it does not hold a water access licence to which the Environmental Water could be transferred – the CEWH will arrange to transfer the Environmental Water to the licence of a State or Territory Stakeholder and will advise the State or Territory Stakeholder of any conditions which apply to the transfer; and

(ii) it does not hold the requisite works and extraction permits, permissions and licences (if relevant) – the Delivery Partner will liaise with the State or Territory Stakeholder to arrange for the delivery of the Environmental Water in order to complete the Event in accordance with a Watering Schedule.


(i) it complies with any conditions attaching to transfer of the Environmental Water;

(ii) its arrangements with a State or Territory Stakeholder are appropriate having regard to the proposed Event and the Watering Objectives; and

(iii) the consent of relevant Consent Authorities, State and Territory Stakeholders and river operators is obtained.


4.3 Third party involvement (a) Where the Delivery Partner identifies in a Watering Proposal that:

(i) it does not hold a water access licence to which the Environmental Water could be transferred – the CEWH will at the request of the Delivery Partner, arrange to transfer the Environmental Water to the licence of a third party and will advise the third party of any conditions which apply to the transfer; and

(ii) it does not hold the requisite works and extraction permits, permissions and licences (if relevant) – the CEWH may subject to conditions at the request of the Delivery Partner agree to the Delivery Partner liaising with a third party to arrange for the delivery of the Environmental Water in order to complete the Event in accordance with a Watering Schedule.


(i) it and the third party comply with any conditions attaching to transfer of the Environmental Water and any direction issued by the CEWH;

(ii) its arrangements with a State or Territory Stakeholder are appropriate having regard to the proposed Event and the Watering Objectives; and

(iii) the consent of relevant Consent Authorities, State and Territory Stakeholders and river operators is obtained.

(c) The Delivery Partner must enter into an enforceable arrangement with the third party which is appropriate having regard to the proposed Event and the Watering Objectives and which obliges that party to comply with:

(i) any conditions of transfer (as contemplated by clause 4.3(a)(i));

(ii) the directions of the CEWH (as contemplated by clause 4.3(b)(i)); and

(iii) the obligations set out in clause 6 and 8 of this Agreement (as though the third party was the Delivery Partner).

(d) The CEWH will not bear any responsibility or liability for any Loss, cost or damage incurred by the Delivery Partner in relation to its arrangements with a third party for the transfer or extraction of the Environmental Water or any associated works. The Delivery Partner will indemnify the CEWH and releases it from any claim arising out of or in relation to any such arrangements between the Delivery Partner and a third party.

5. Consents and compliance with Laws5.1 Evidence of consent

(a) The Delivery Partner must obtain the consent of any affected third parties (including landowners and/ or occupiers of affected or potentially affected areas) to the Event and to the access contemplated by clause 6.6(a).

(b) The Delivery Partner must, prior to the transfer of the Environmental Allocation (as contemplated by clause 4 above), provide the CEWH with written confirmation that these consents have been obtained in the form set out at Schedule 3.

5.2 Compliance with Laws and consentsThe Delivery Partner is responsible for ensuring it complies with all relevant Laws and, except as provided for in clause 4 above, for obtaining the consent and endorsement of any Consent Authority (including any water authority or owner of affected water delivery infrastructure).


6. Delivery Partner obligations6.1 Obligation to perform

(a) The Delivery Partner must do everything reasonably necessary to effect its obligations under this Agreement.

(b) In consideration of the provision of the Environmental Water the Delivery Partner must perform its obligations:

(i) consistently with, and in furtherance of, the Watering Objectives;

(ii) in accordance with all applicable Laws and consents contemplated by clause 5.2;

(iii) so as to meet the Milestones and all reporting requirements;

(iv) otherwise in accordance with the provisions of this Agreement,

and must ensure it has appropriate systems and procedures in place to:

(v) effectively manage delivery of the Environmental Water; and

(vi) ensure that the Event is conducted and the Environmental Water delivered in a safe and effective manner

6.2 Liaison(a) The Delivery Partner must liaise with and report to the CEWH’s Representative in

relation to preparing a Watering Proposal, the conduct of an Event, ongoing risk assessment, and as may otherwise be required by the CEWH’s Representative for the purposes of this Agreement.

(b) Upon request, the Delivery Partner must, within the timeframe stipulated in the request or promptly if no timeframe is stipulated, provide all information in relation to an Event or the Delivery Partner as requested by the CEWH’s Representative including for monitoring and evaluation purposes.

6.3 Delivery Partner must keep Records The Delivery Partner must:

(a) keep comprehensive and accurate accounts and records of all matters relating to performance of this Agreement and each Event; and

(b) retain the accounts and records referred to in this clause 6 for the Term and a further period of seven years from the expiry or termination of this Agreement or such longer period as may be required by Law.

6.4 Provision of records to the CEWHThe Delivery Partner must:

(a) deliver information and other material (including Reports) produced under or in connection with this Agreement and otherwise as reasonably required by the CEWH; and

(b) provide all information and other material (including Reports) to the CEWH in accordance with the timeframes specified in this Agreement and otherwise promptly upon demand.


6.5 Reports(a) Without limiting the Delivery Partner's other obligations under this Agreement, the

Delivery Partner must provide the Reports in accordance with the Agreement Details substantially in the form of the template specified by the CEWH from time to time (if any).

(b) If the CEWH notifies the Delivery Partner that a Report submitted is not to the CEWH’s satisfaction, the Delivery Partner must make the required amendments and resubmit the Report to the CEWH.

6.6 Participation in evaluations and analysis The Delivery Partner must participate, at its own cost and as reasonably required by the CEWH, in studies, evaluations and other activities intended to analyse the success of an Event in achieving the Watering Objectives. Such participation may, where required by the CEWH, include:

(a) facilitating third party and CEWH access to sites affected by an Event to undertake analysis and evaluation of the Event; and

(b) making records and other information (including Reports) available to third parties for the purposes of evaluation and analysis.

7. Acknowledgement and related events7.1 Acknowledgement

(a) The Delivery Partner must obtain the CEWH’s prior consent to:

(i) all publications, promotional and advertising materials, signs or plaques displayed at the location where an Event is undertaken;

(ii) all activities undertaken by it or on its behalf in relation to the Event,

and must, if required by the CEWH, acknowledge the support it has received (and in particular the Environmental Water), in the manner the CEWH directs.

(b) The Delivery Partner must submit any documentation containing the required acknowledgment to the CEWH 10 Business Days prior to publication or announcement of the event.

(c) If the CEWH requires amendments to a proposed form of words of a publication or announcement, the Delivery Partner must make the required amendment before allowing the words to be published or announced.

(d) Notwithstanding the CEWH’s review or proposal of a revised form of words in accordance with this clause, the Delivery Partner will at all times remain responsible for the content and accuracy of publications and announcements.

7.2 Project EventsThe Delivery Partner must consult with the CEWH in relation to planned events and offer the CEWH a reasonable opportunity to participate.

8. Access to premises and records8.1 Access to records and materials

(a) The Delivery Partner acknowledges and agrees that the CEWH and any persons nominated by the CEWH may, at reasonable times and on giving reasonable notice to the Delivery Partner:


(i) access and inspect the Delivery Partner’s premises to the extent relevant to the performance of this Agreement;

(ii) require the Delivery Partner (including its Personnel) to provide records, documents and information relevant to the performance of this Agreement in a data format and storage medium accessible by the CEWH;

(iii) inspect and copy documentation, books and records, however stored, in the custody or under the control of the Delivery Partner (including its Personnel) relevant to the performance of this Agreement; and

(iv) require assistance in respect of any inquiry into or concerning an Event or this Agreement. For the purpose of this clause 8.1(a)(iv), an inquiry includes any administrative or statutory review, audit or investigation (whether within or external to the CEWH), any request for information directed to the CEWH, any judicial or quasi-judicial inquiry, and any inquiry conducted by Parliament or any Parliamentary committee.

(b) The Delivery Partner must promptly comply with all requirements of the CEWH under this clause 8.1.

8.2 Access to hardware and softwareThe Delivery Partner must provide the CEWH (including its Personnel) with access to the Delivery Partner’s computer hardware and software to the extent necessary for the CEWH to exercise its rights under clause 8.1, and must provide the CEWH with any reasonable assistance requested by it to use that hardware and software.

8.3 Costs(a) Subject to clause 8.3(b), each party must bear its own costs of any inspections,

reviews, audits and inquiries conducted pursuant to this clause 8.

(b) If an audit, inspection, review or inquiry conducted pursuant to this clause 8 identifies a breach by the Delivery Partner of this Agreement, the CEWH may recover its costs of conducting that inspection, review, audit or inquiry as a debt due from the Delivery Partner.

8.4 Auditor-General, Ombudsman and CommissionersWithout limiting clauses 8.1 and 8.2, the CEWH’s rights under clauses 8.1 and 8.2 apply equally to the Auditor-General, the Ombudsman, the Information Commissioner, the Privacy Commissioner, the Freedom of Information Commissioner or their delegates, for the purpose of each performing their functions or activities (as the case may be).

8.5 Application of this clause This clause 8 applies for the duration of the Term and for a period of seven years from the termination or expiry of this Agreement.

9. Insurance9.1 Obligation to take out and maintain insurance

(a) The Delivery Partner must take out or have taken out for the period specified in clause 9.1(b) or clause 9.1(c) (as the case may be) as at the Commencement Date, workers’ compensation and public liability insurances as specified in the Agreement Details.

(b) If the Delivery Partner takes out a ‘claims made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified


within the period of insurance, the Delivery Partner must maintain the policy (or a policy in like terms) during the Term and for a period of seven years on and from the expiry or the early termination of this Agreement.

(c) If the Delivery Partner takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of event can occur at any time subsequently, the Delivery Partner must maintain the policy during the Term.

(d) The insurances obtained and maintained by the Delivery Partner in accordance with this clause must extend to cover all subcontractors including any third party contemplated by clause 4.3.

9.2 Copies of insuranceThe Delivery Partner must, on request, promptly provide to the CEWH any relevant insurance policies and certificates of currency for inspection.

10. Protection of personal informationIn relation to personal information obtained in connection with this Agreement, the Delivery Partner must:

(a) use or disclose personal information only for the purposes of this Agreement;

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

(c) assume responsibility for any Loss suffered or incurred by the CEWH that arises directly or indirectly from a breach of any of the obligations of the Delivery Partner under this clause 10; and

(d) immediately notify the CEWH if the Delivery Partner becomes aware of a breach or possible breach of any of its obligations under this clause 10.

11. Confidentiality11.1 Prohibition on disclosure

(a) Subject to clause 11.2, a party must not, without the prior written consent of the other party, disclose any Confidential Information of the other party to a third party.

(b) In giving written consent to the disclosure of Confidential Information, the CEWH may impose such conditions as it thinks fit, and the Delivery Partner must comply with these conditions.

11.2 Exceptions to obligationsThe obligations on the parties under this clause 11 will not be taken to have been breached to the extent that Confidential Information is:

(a) disclosed by a party to its advisers, employees, officers, agents, professional advisers or subcontractors solely in order to comply with obligations, or to exercise rights, under this Agreement;

(b) disclosed by the CEWH to the responsible Minister or a House or a Committee of the Parliament of the Commonwealth or is shared by the CEWH internally or with


another Commonwealth agency, where this serves the CEWH’s legitimate interests; or

(c) authorised or required by Law, including under this Agreement, under a licence or otherwise, to be disclosed.

11.3 No reduction in privacy obligationsNothing in clause 10 or in this clause 11 derogates from any obligation which either party may have either under the Privacy Act as amended from time to time, or under this Agreement, in relation to the protection of personal information.

11.4 Agreement provisionsNotwithstanding any other provision of this Agreement, the CEWH may disclose the existence and provisions of this Agreement.

12. Termination and expiry12.1 Grounds for suspension or cancellation of an Event

(a) If the Delivery Partner:

(i) fails to comply with its obligations under:

(A) clause 5.1(Evidence of consent);

(B) a Watering Schedule; or

(ii) provides a revised Risk Assessment as required by clause 2.3(d) which identifies an unacceptable risk associated with an Event,

the CEWH may by notice immediately suspend or cancel an Event.

(b) In addition to its rights under clause 12.1(a) above, the CEWH may at its discretion cancel or suspend an Event where prompted by a legitimate concern or restriction.

(c) If the CEWH cancels or suspends an Event as contemplated by this clause, the Delivery Partner must comply with any direction given by the CEWH and ensure that any involved third party, Consent Authority and State or Territory Stakeholder is advised.

12.2 Termination of the Agreement for default(a) Without limiting any other rights or remedies the CEWH may have against the

Delivery Partner arising out of or in connection with this Agreement (including cancellation or suspension of an Event), the CEWH may terminate this Agreement effective immediately by giving notice to the Delivery Partner if:

(i) the Delivery Partner breaches a material provision of this Agreement where that breach is not capable of remedy;

(ii) the Delivery Partner breaches any provision of this Agreement and fails to remedy the breach within 14 days after receiving notice requiring it to do so;

(iii) an event specified in clause 12.2(b) happens to the Delivery Partner; or

(iv) being a corporation, there is any change in the direct or indirect legal or beneficial ownership or in the direct or indirect control of the Delivery Partner.


(b) The Delivery Partner must notify the CEWH immediately if the Delivery Partner ceases to be able to pay its debts as they become due, enters into liquidation, has a controller or managing controller or liquidator or administrator appointed, or is declared bankrupt or assigns his or her estate for the benefit of creditors or any analogous event occurs.

(c) If the CEWH terminates this Agreement all un-commenced Events will be taken to be cancelled.

12.3 Consequences of suspension, cancellation and termination(a) If the Event is suspended the Delivery Partner must provide a revised Watering

Proposal for the CEWH’s consent which reflects the revised particulars of the Event.

(b) If:

(i) the Event is cancelled in circumstances contemplated by clause 12.1(a) or 12.1(b);

(ii) the Event is cancelled due to termination of the Agreement as contemplated by clause 12.2(c),

(iii) the Event concludes but the Watering Objectives are not achieved to the CEWH’s reasonable satisfaction,

the CEWH may at its absolute discretion direct that the Delivery Partner:

(iv) effect the return of an amount of water of an equivalent quality and quantity to the Environmental Water, to the CEWH’s licence; or

(v) apply an equivalent quantity and quality of water to an alternative event or purpose,

and the Delivery Partner must comply with any such direction.

12.4 Termination does not affect accrued rightsTermination of this Agreement does not affect any accrued rights or remedies of a party.

13. Indemnity and release13.1 Indemnity

The Delivery Partner indemnifies the CEWH and continues to indemnify the CEWH against, all:

(a) Losses suffered or incurred by the CEWH, including as the result of any claim made in relation to:

(vi) loss of or damage to third party property; or

(vii) the injury, illness or death of a third party;

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

(c) Losses suffered or incurred by the CEWH in dealing with any claim against the CEWH, including legal costs and expenses on a solicitor / own client basis and the cost of time spent, resources used, or disbursements paid by the CEWH,

arising from:


(d) any act or omission by the Delivery Partner (including any of its Personnel or a third party where clause 4.3 applies) in connection with this Agreement or an Event;

(e) any breach by the Delivery Partner (including any of its Personnel) of its obligations or warranties under this Agreement; and/ or

(f) any use or disclosure by the Delivery Partner (including its Personnel) of Personal Information or Confidential Information (or both, as the case may be) held or controlled in connection with this Agreement.

13.2 ReleaseThe Delivery Partner releases the CEWH from:

(a) all claims, actions, demands and proceedings which it may have, or claim to have, or but for this release might have had, against the CEWH arising out of this Agreement or in any way connected with the performance of this Agreement; and

(b) all liability of the CEWH arising out of this Agreement,

on and from the Commencement Date.

13.3 Proportional reduction of liabilityThe Delivery Partner's liability to indemnify and release the CEWH under clauses 13.1 and 13.2 will be reduced proportionately to the extent that any negligent or unlawful act or omission, or wilful misconduct on the part of the CEWH (including its officers and employees) contributed to the relevant Loss.

13.4 CEWH's right to be indemnified is additional to other rightsThe CEWH's right to be indemnified under clause 13.1 is in addition to, and not exclusive of, any other right, power, or remedy provided by Law or in equity, but the CEWH is not entitled to be compensated in excess of the amount of the relevant Loss.

14. Notices and other communications14.1 Service of notices

(a) A party giving notice or notifying under this Agreement must do so in English and in writing or by Electronic Communication:

(i) directed to the other party’s contact person at the other party’s address; and

(ii) hand delivered or sent by prepaid post, facsimile or Electronic Communication to that address.

(b) The parties’ addresses are specified in the Agreement Details or as otherwise varied by notice.

14.2 Effective on receiptA notice given in accordance with clause 14.1 takes effect when it is taken to be received (or at a later time specified in it), and is taken to be received:

(a) if hand delivered, on delivery;

(b) if sent by prepaid post, on the second business day after the date of posting (or on the seventh business day after the date of posting if posted to or from a place outside Australia);


(c) if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the notice unless, within one business day after that transmission, the Delivery Partner informs the sender that it has not received the entire notice; or

(d) if sent by Electronic Communication, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth),

but if the delivery, receipt or transmission is not on a business day or is after 6.00pm on a business day, the notice is taken to be received at 9.00am on the next business day.

15. SurvivalThe following clauses survive the termination and expiry of this Agreement:

(a) clause 8 (Access to premises and records);

(b) clause 9 (Insurance);

(c) clause 10 (Protection of personal information);

(d) clause 11 (Confidentiality); and

(e) clause 13 (Indemnity and release).

16. Miscellaneous16.1 Variation

No agreement or understanding varying or extending this Agreement is agreed unless it is in writing and signed by both parties.

16.2 Assignment and novationA party may only assign its rights or novate its rights and obligations under this Agreement with the prior written consent of the other party.

16.3 CounterpartsThis Agreement may be signed in counterparts. All signed counterparts constitute one document.

16.4 Entire agreementThis Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.

16.5 Relationship(a) The parties must not represent themselves, and must ensure that their officers,

employees, agents and subcontractors do not represent themselves, as being an officer, employee, partner or agent of the other party, or as otherwise able to bind or represent the other party.

(b) This Agreement does not create a relationship of employment, agency or partnership between the parties.

16.6 Governing law and jurisdictionThis Agreement is governed by the law of the Australian Capital Territory and each party submits to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.


Schedule 1 – Agreement Details

Item No. Description Details

1. CEWH Commonwealth of Australia as represented by the Commonwealth Environmental Water Holder situated within the Department of Sustainability, Environment, Water, Population and Communities ABN 34 190 894 983.

2. CEWH details Postal address

GPO Box 787, Canberra ACT 2601

Physical address

John Gorton Building, King Edward Terrace, Parkes ACT 2600

Project Officer

Ryan Breen

Phone 02 6274 2762

Email [email protected]

7. Delivery Partner Nature Foundation South Australia Inc. ABN 24 131 531 874

8. Delivery Partner details Postal address

PO Box 448, Hindmarsh SA 5007

Physical address

32 Holden Street, Hindmarsh SA 5007

Project Officer

Hiyoba Ghirmay

Phone 08 83402880

Fax 08 8340 2506

Email [email protected]

14. Commencement Date The date this Agreement is signed by the last party.

15. Term 5 years

16. Consent Authorities Department of Environment, Water and Natural Resources, South Australia

17. State or Territory Stakeholders

Department of Environment, Water and Natural Resources, South Australia

18. Maximum Volume 10,000 Megalitres per year (subject to clause 2.4)

19. Reports Prior notification by email of the commencement and cessation of an Event and any change or modification of the Event mid delivery.

Updates on relevant issues as they arise and which may



influence the delivery partners’ reputations or ability to deliver water. These will be immediately reported to the Commonwealth Environmental Water.

A final operational monitoring report (see Schedule 4) will be provided by the Delivery Partner within four weeks after full implementation of each watering action.

Ecological monitoring information collected relating to the watering actions.

Additional ReportsIn addition to the reports required in relation to delivery of the Environmental Water, the Delivery Partner must provide any additional Reports required by the CEWH.Where the CEWH requires an additional Report, it will issue a direction in writing to the Delivery Partner requiring an additional Report to be provided and specifying the CEWH’s requirements in relation to the: format;

content;

timing;

information and substantiating documentation to be submitted; and

auditing or certification (if any).

20. Insurance Requirements

Workers compensation insurance as required by law.Public liability and property damage insurance in an amount of $10,000,000 per occurrence.

21. Confidential Information

None specified


Schedule 2 – Watering ScheduleParticulars of Event


1. Environmental Water [Insert volume]

2. Watering Objectives for the watering action

[Insert]

3. Delivery Date [Insert delivery date or date range]

4. Additional Undertakings

[Insert details of any additional undertakings made by the Delivery Partner in its Watering Proposal including performance of any action, activity or works, in kind or cash contributions]

5. Reports Event Reports Prior notification by email of the commencement and

cessation of an Event and any change or modification of the Event mid delivery.

Updates on relevant issues as they arise and which may influence the delivery partners’ reputations or ability to deliver water. These will be immediately reported to the Commonwealth Environmental Water.

A final operational monitoring report (see Schedule X) will be provided by the Delivery Partner within four weeks after full implementation of each watering action.

Ecological monitoring information collected relating to the watering actions.

Additional ReportsIn addition to the reports required in relation to delivery of Environmental Water, the Delivery Partner must provide any additional Reports required by the CEWH.Where the CEWH requires an additional Report, it will issue a direction in writing to the Delivery Partner requiring an additional Report to be provided and specifying the CEWH’s requirements in relation to the: format;

content;

timing;

information and substantiating documentation to be submitted; and



auditing or certification (if any).

6. Confidential Information

[Insert]

7. Delivery Costs [Insert]

8. Additional Conditions [Insert]

Milestone Schedule

Item No. Description Responsible

party Due date

1. Evidence of consents Delivery Partner

One week prior to water transfer of Environmental Water

2. Transfer of Environmental Water CEWH Following:

the acceptance of deliverables in Milestones 1-2

receipt of approvals from Consent Authorities (ie trade forms)

3. Final Risk Assessment Delivery Partner

2 Business Days prior to Delivery Date

4. Final Event report – relevant for each separate watering action.

Delivery Partner

Within four weeks of completed water delivery

5. Payment of invoices associated with Delivery Costs (where applicable)

CEWH/ Delivery Partner (TBC)

Where CEWH responsible for Delivery Costs

On receipt of:

appropriately rendered invoice to the CEWH

final operational reports


SIGNED SEALED AND DELIVERED for and on behalf of the COMMONWEALTH OF AUSTRALIA represented by Commonwealth Environmental Water Holder situated within the Department of Sustainability, Environment, Water, Population and Communities by a duly authorised representative

Name of authorised representative (print) Name of witness (print)

Signature of authorised representative Signature of witness

Date Date


Attachment A: Watering Proposal


Schedule 3 – Certification of affected party consent

[Insert name]Commonwealth Environmental Water HolderDepartment of Sustainability, Environment, Water, Population and CommunitiesGPO Box 787Canberra ACT 2601

Dear [Insert]

Certification of third party consent[Insert Event Description] (the Event)

Nature Foundation South Australia is a Delivery Partner under the terms of an Environmental Watering Agreement entered into on [Insert Date] (the Agreement).

On [Insert Date] the Nature Foundation South Australia submitted a Watering Proposal for the Commonwealth Environmental Water Holder’s consideration. The Watering Proposal was endorsed and a Watering Schedule issued on [Insert Date].

Amongst other matters, the terms of the Agreement require that Nature Foundation South Australia:

1. provide full particulars of the Event including identifying all areas affected or likely to be affected by the Event;

2. provide a plan addressing those matters set out in clause 3.1(b)(viii) but including that interested and affected third parties were consulted;

3. take all those steps contemplated by clause 4 to effect a transfer of the Environmental Water and to secure the requisite works and extraction permits, permissions and licences;

4. obtain the consent of affected third parties (including owners or occupiers of affected areas);

5. consult with and obtain the consent of relevant Consent Authorities, State and Territory Stakeholders and river operators.

The Delivery Partner warrants that it has taken all steps necessary to comply with its obligations under the Agreement (including in respect of those matters noted above) and that the prior written consent of all affected or potentially affected third parties has been obtained.

The Delivery Partner further warrants that:

1. it has consulted with all affected or potentially affected parties in accordance with the plan referred to above;

2. those parties have been provided with appropriate prior notice of the Event; and


3. it has appropriate systems and procedures in place to effectively manage delivery of the Environmental Water, to ensure that the Event is conducted and Environmental Water is delivered in a safe and effective manner.

................................................................

[Name of Authorised Delivery Partner Representative]

[Insert Date]


Signature page

Executed as a Deed

SIGNED SEALED AND DELIVERED for and on behalf of the COMMONWEALTH OF AUSTRALIA represented by Commonwealth Environmental Water Holder situated within the Department of Sustainability, Environment, Water, Population and Communities by a duly authorised representative



Date Date

SIGNED SEALED AND DELIVERED for and on behalf of Nature Foundation SA Inc. ABN 24 131 531 874 by a duly authorised representative who warrants that they have the authority to sign this Deed on behalf of Nature Foundation SA Inc.

in the presence of:



Date Date


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