ITA 436 0910 PCIG Sample Funding Agreement

8/6/2019 ITA 436 0910 PCIG Sample Funding Agreement

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SAMPLE DRAFT SUBJECT TO REVISION

PCIG Sample Funding Agreement

PRIMARY CARE INFRASTRUCTURE GRANTS

FUNDING AGREEMENT

between the

COMMONWEALTH OF AUSTRALIAas represented by the Department of Health and AgeingABN 836 054 26 759

and

[SUCCESSFUL APPLICANT]

ABN #

For

NAME OF EXISTING FACILITY

PCIG #


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PCIG Sample Funding Agreement i

CONTENTS

1. Definitions and interpretation ..................................................................................................6

1.1 Definitions..................................................................................................................61.2 Interpretation ............................................................................................................11

2. Term of the Agreement ...........................................................................................................12

3. Planning, design and Approvals.............................................................................................12

3.1 Project Budget and Project Plan...............................................................................123.2 Design of the Works.................................................................................................133.3 Project Documents ...................................................................................................133.4 Approvals .................................................................................................................14

4. Conduct of the Project.............................................................................................................14

4.1 Obligation to perform the Project.............................................................................144.2 Performance of the Works........................................................................................144.3 Specified Personnel Positions ..................................................................................154.4 Commencement of the Works..................................................................................164.5 Subcontracting..........................................................................................................164.6 Inspection of Works .................................................................................................174.7 Progress reports........................................................................................................174.8 Variations to the Works............................................................................................184.9 Practical Completion of the Works ..........................................................................184.10 Date for Practical Completion..................................................................................194.11 Defects after Practical Completion...........................................................................194.12 Force Majeure ..........................................................................................................19

5. Assumption of risks for the Works ........................................................................................20

5.1 Responsibility for the Project...................................................................................205.2 Acceptance of risk....................................................................................................20

6. The Property ............................................................................................................................20

6.1 Performing the Project .............................................................................................206.2 Tenure ......................................................................................................................20

7. Designated Use .........................................................................................................................21

7.1 Use of the Property and the Works for the Designated Use.....................................217.2 Repayment Amount..................................................................................................217.3 Organisation's acknowledgement.............................................................................21

7.4 Registration and licensing ........................................................................................228. The Funding .............................................................................................................................22

8.1 Payment of the Funds...............................................................................................228.2 Use of the Funds.......................................................................................................228.3 Amounts of Funds....................................................................................................238.4 Sufficiency of amounts.............................................................................................23

9. Management of Funds.............................................................................................................23

10. Other contributions .................................................................................................................24

11. Records, Reports and Acquittals............................................................................................24

11.1 Records and accounts...............................................................................................24


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PCIG Sample Funding Agreement ii

11.2 Organisation must keep records ...............................................................................2411.3 Provision of records to the Commonwealth.............................................................2411.4 Financial records ......................................................................................................2511.5 Reports .....................................................................................................................2511.6 Audits .......................................................................................................................2511.7 Acquittals .................................................................................................................2511.8 Retention of records and information.......................................................................2611.9 Participation in Evaluations and Analysis of the Program.......................................26

12. Liaison.......................................................................................................................................26

12.1 Commonwealths Project Contact............................................................................2612.2 Provision of information ..........................................................................................26

13. Access to premises and records ..............................................................................................26

13.1 Access to records and Materials...............................................................................2613.2 Access to hardware and software.............................................................................2713.3 Costs.........................................................................................................................27

13.4 Auditor-General and Privacy Commissioner ...........................................................2713.5 Application of this clause.........................................................................................2713.6 Subcontracts .............................................................................................................27

14. Project Material and Intellectual Property ...........................................................................28

14.1 Ownership rights in Project Material .......................................................................2814.2 Licensing of rights in Reports ..................................................................................2814.3 Licensing of rights in other Project Material............................................................2814.4 Project Material........................................................................................................2814.5 Intellectual Property warranty..................................................................................2814.6 Commonwealth Material..........................................................................................2814.7 Moral Rights.............................................................................................................29

15. Acknowledgement and Publications ......................................................................................29

16. Assets.........................................................................................................................................29

16.1 Purchasing of Assets ................................................................................................2916.2 Use of Assets............................................................................................................2916.3 Obligations in relation to Assets ..............................................................................2916.4 Disposal of Assets ....................................................................................................3016.5 Interest......................................................................................................................30

17. Suspension and termination....................................................................................................31

17.1 Termination for default ............................................................................................31

17.2 Liability of the Commonwealth ...............................................................................3217.3 Dealing with Funds on termination..........................................................................3217.4 Deemed termination for convenience.......................................................................32

18. Repayment of Funds................................................................................................................33

18.1 Repayment of Funds.................................................................................................3318.2 Failure to repay Funds..............................................................................................33

19. Indemnities ...............................................................................................................................34

19.1 Organisation agrees to indemnify the Commonwealth ............................................3419.2 Proportional reduction of liability ............................................................................3419.3 Commonwealth's right to be indemnified is additional to

other rights ...............................................................................................................3519.4 Definition of fault.....................................................................................................35


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PCIG Sample Funding Agreement iii

20. Insurance ..................................................................................................................................35

20.1 Obligation to obtain and maintain insurance............................................................3520.2 Copies of insurance ..................................................................................................3520.3 Proceeds of Insurance...............................................................................................35

21. Confidential Information ........................................................................................................36

21.1 Organisation not to disclose .....................................................................................3621.2 Commonwealth disclosure .......................................................................................36

22. Personal Information...............................................................................................................37

22.1 When does this clause apply?...................................................................................3722.2 Other definitions relating to Personal Information...................................................3722.3 Organisation's obligations about Personal Information............................................3722.4 Subcontractors..........................................................................................................37

23. Compliance with Laws and policies .......................................................................................37

23.1 Obligations ...............................................................................................................37

24. Disputes.....................................................................................................................................37

24.1 Dispute resolution ....................................................................................................3724.2 When clause 24.1 does not apply .............................................................................3824.3 Obligations continue ................................................................................................38

25. Taxes, duties and government charges ..................................................................................39

25.1 Definitions................................................................................................................3925.2 Responsibility for Taxes...........................................................................................3925.3 Funding includes GST..............................................................................................3925.4 Input Tax Credits......................................................................................................3925.5 Tax Invoice...............................................................................................................39

26. General......................................................................................................................................39

26.1 Notices......................................................................................................................3926.2 Survival of provisions ..............................................................................................4026.3 Jurisdiction ...............................................................................................................4026.4 Entire Agreement .....................................................................................................4026.5 Variation and Waiver ...............................................................................................4026.6 Illegality ...................................................................................................................4126.7 Novation and assignment .........................................................................................4126.8 Negation of employment, partnership and agency...................................................4126.9 Management of Conflicts.........................................................................................41

27. Organisation to comply with all special conditions ..............................................................41

Schedule 1 Particulars ..............................................................................................................................42

1. Project.......................................................................................................................................42

2. The Property ............................................................................................................................43

3. Timeframes...............................................................................................................................43

4. Designated Use .........................................................................................................................44

5. Reports......................................................................................................................................44


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PCIG Sample Funding Agreement iv

6. Funds.........................................................................................................................................46

7. Project Contact ........................................................................................................................47

8. Specified Personnel Positions..................................................................................................47

9. Insurance ..................................................................................................................................47

10. Other contributions .................................................................................................................50

11. Assets.........................................................................................................................................50

12. Special conditions.....................................................................................................................50

13. Repayment amount..................................................................................................................50


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This Agreement is made on day of 20#

between

COMMONWEALTH OF AUSTRALIA (the Commonwealth), as represented by theDepartment of Health and Ageing ABN 83 605 426 759

and

[SUCCESSFUL APPLICANT] (the Organisation),[ABN/CAN]#, having itsregistered address at

RECITALS:

A. The Commonwealth has developed the GP Super Clinics Program (the Program). Aspart of the Program, the Department is undertaking the Primary Care InfrastructureGrants initiative (the PCIG).

B. The aim of the PCIG is to assist in building the capacity of Australias primary healthcare system, bringing benefits to local communities through improved access to abroad range of services and to patients through additional services.

C. The objectives of the PCIG (PCIG Objectives) are to:1. Upgrade or extend existing facilities to provide space for additional general

practitioners, nurses and allied health professionals and/or students on clinicalplacements;

2. Provide access to new services that meet local community health needs with afocus on preventative activities and better chronic disease management;

3. Strengthen team-based approaches to the delivery of care by providing, forexample, additional space for case conferencing and/or group activities suchas lifestyle modification clinics and/or shared service delivery by more thanone health professional;

4. Provide extended hours of service where these do not exist, for exampleadditional services in the early morning, later in the evening or on weekends;and

5. Develop new, or enhance existing, clinical training facilities.D. Three Streams of grant funding are available under the PCIG.E. This Agreement applies to PCIG funding under Stream #.F. PCIG Objectives # apply to funding under Stream #.


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G. The Organisation has fully informed itself of all aspects of the work required to beperformed for the purposes of the Project and has submitted an application entitled[name of existing facility] dated [date of application];

H. The Organisation is committed to helping to achieve the objectives and outcomes ofthe Program and the PCIG through the conduct of the Project; and

I. The Commonwealth has agreed to fund the Organisation to perform the Project insupport of the PCIG on the terms and conditions of this Agreement.

1. Definitions and interpretation

1.1 Definitions

In this Agreement, unless the contrary intention appears:

Accounting Standards has the same meaning as it has in sections 9 and 334 of theCorporations Act 2001, and refers to the accounting standards made by the AustralianAccounting Standards Board;

Agreement means this document and includes any Schedules or annexures;

Approval includes any consent, authorisation, registration, filing, agreement,notification, certificate, permission, licence, approval, permit, authority or exemptionissued by, from or with any Proper Authority;

Approved Auditor means:

(a) a company auditor under the Corporations Act 2001 or a member of theInstitute of Chartered Accountants in Australia, CPA Australia, or theNational Institute of Accountants;

(b) acting in a professional capacity as an auditor; and(c) not a principal, officer or employee of the Organisation;Asset means:

(a) the items identified in Item 11 of Schedule 1 (if any); or(b) any item of tangible property purchased or leased either wholly or in part

with the use of the Funds, that is not a fixture, with a value at the time ofacquisition of $5,000 or more, excluding GST,

but does not include the Property or the Works;

Audit means an audit carried out by the Approved Auditor in accordance with theAuditing Standards;


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Auditor-General means the office established under theAuditor-General Act 1997and includes any other person that may, from time to time, perform the functions ofthat office;

Auditors Report has the same meaning it has in the Auditing Standards;

Auditing Standards has the same meaning as it has in sections 9 and 336 of theCorporations Act 2001, and refers to the auditing standards made by the AustralianAuditing and Assurance Standards Board;

Bank means an "authorised deposit-taking institution" as that term is defined in theBanking Act1959;

Business Day means, in relation to the doing of any action in a place, any day otherthan a Saturday, Sunday, or public holiday in that place;

Certificate of Occupancy means a certificate issued by the Proper Authority thatprovides such certificates confirming that the relevant Works comply with all relevantLaws, Approvals and other requirements and are fit for the purpose of occupancy anduse for the Designated Use;

Committed means expected expenditure backed by an agreement;

Commonwealth means the Commonwealth of Australia represented by theDepartment of Health and Ageing ABN 83 605 426 759 or such other department oragency from time to time having responsibility for the management of this Agreement;

Commonwealth Material means any Material:

(a) provided by the Commonwealth to the Organisation for the purposes of thisAgreement; or

(b) copied or derived at any time from the Material referred to in paragraph (a);Completion Date means the date specified in Item 3.3 of Schedule 1;

Confidential Information means information of, or provided by, the Commonwealththat:

(a) is by its nature confidential;(b) is designated by the Commonwealth as being confidential; or(c) the Organisation knows or ought to know is confidential,but does not include information which:

(d) is or becomes public knowledge, other than by breach of this Agreement orby any other unlawful means;

(e) is in the possession of the Organisation without restriction in relation todisclosure before the date of receipt from the Commonwealth; or


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(f) has been independently developed or acquired by the receiving Party;Conflict means any circumstance in which the Organisation or any of theOrganisation's officers, employees, agents or subcontractors has an interest (whether

financial or non-financial) or an affiliation that is affecting, will affect, or could beperceived to affect, the Organisation's ability to perform the Project, or its obligationsunder this Agreement, fairly, independently and so as to achieve the Project Aim;

Date of this Agreement means the date this Agreement is executed by the Partiesand, if executed on separate days, the date on which this Agreement is executed by thelast Party to do so;

Date for Practical Completion means the date specified in Item 3.2 of Schedule 1 bywhich the Organisation must achieve Practical Completion of the Works;

Department means the Commonwealth Department of Health and Ageing or such

other Commonwealth Department as may be responsible from time to time for theadministration of this Agreement;

Depreciation has the same meaning as it has in Australian Accounting StandardAASB 116 Property, Plant and Equipment(as amended) and Depreciated has acorresponding meaning;

Designated Use means the designated use specified in Item 4.2 of Schedule 1;

Designated Use Period means the period specified in Item 4.1 of Schedule 1;

Dispose or Disposing means selling, mortgaging or encumbering, leasing or sub-

leasing, licensing or sub-licensing, assigning or otherwise transferring or giving upownership or the right to occupy or use, or to enter into an agreement to do any of thepreceding acts;

Facility means the existing general practice, primary health care service or communityhealth service, and/or Aboriginal Medical Service operating from the Property;

Financial Report means a financial report relating to the Organisation's receipt,retention and expenditure of the Funds including, at a minimum:

(a) a statement identifying any Funds paid by the Commonwealth to theOrganisation under this Agreement that were not spent or Committed bythe end of the relevant financial year during the term of this Agreement;

(b) a detailed statement of revenue and expenditure in relation to the Fundsreceived and receivable by the Organisation under this Agreement, whichmust include a definitive statement as to whether the Organisation'sfinancial accounts in relation to the Funds are complete and accurate, and astatement of the balance of the bank account referred to in clause 9; and

(c) notes, comprising a summary of significant accounting policies and otherexplanatory notes that are relevant to the Funds,

prepared in accordance with the Accounting Standards for the relevant financial yearand audited by an Approved Auditor;


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Force Majeure Event meansa circumstance or event beyond the Organisation'sreasonable control including acts of God, war and other hostility, national orinternational disaster, fire, explosion, power failure, strike or lockout, but does notinclude:

(a) circumstances or events caused by acts or omissions of the Organisation orits officers, employees, subcontractors or agents;

(b) events which were or should have been contemplated or were or shouldhave reasonably been foreseen by the Organisation on signing thisAgreement;

(c) circumstances or events contemplated or referred to by this Agreement; or(d) circumstances or events caused by the Commonwealth or its employees,

officers, subcontractors or agents;

Funds means the amount payable by the Commonwealth under this Agreement andincludes any interest earned on the Funds;

Key Performance Indicators means the key performance indicators which theOrganisation must report against, as set out in Item 5.3 of Schedule 1;

Intellectual Property means all copyright (including Moral Rights and all rights inrelation to phonograms and broadcasts), all rights in relation to inventions (includingpatent rights), plant varieties, registered and unregistered trademarks (includingservice marks), registered and unregistered designs, circuit layouts and all other rightsresulting from intellectual activity in the industrial, scientific, literary or artistic fields;

Interest means interest calculated at the 90 day bank-accepted bill rate (available fromthe Reserve Bank of Australia) less 10 basis points;

Law means any applicable statute, regulation, by-law, ordinance or subordinatelegislation in force from time to time anywhere in Australia, whether made by a State,Territory, the Commonwealth, or a local government, and includes the common law asin force from time to time;

Material includes without limitation documents, records, software (including sourcecode and object code), goods, information and data stored by any means including allcopies and extracts of the same;

Milestone means a milestone set out in the Milestone Schedule;

Milestone Schedule means the milestone schedule set out in the table in Item 6.2 ofSchedule 1;

Minister means the Minister of the Commonwealth from time to time responsible forthe Department;

Moral Rights has the meaning given under the Copyright Act 1968;

Party means a party to this Agreement;


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PCIG means the Primary Care Infrastructure Grants initiative under the Program, asdescribed in Recital A;

PCIG Objectives means the objectives as described in Recital C;

Personal Information means information or an opinion (including information or anopinion forming part of a database), whether true or not, and whether recorded in amaterial form or not, about a natural person whose identity is apparent, or canreasonably be ascertained, from the information or opinion;

Practical Completion occurswhen the requirements of clause 4.9 have been met;

Privacy Act means the Privacy Act 1988;

Privacy Commissioner means the office established under the Privacy Act andincludes any other person that may, from time to time, perform the functions of that

office;

Program means the program referred to in Recital A of this Agreement;

Project means the project conducted under the PCIG and described in Item 1.1 ofSchedule 1 and includes the Works;

Project Aim means the intended impact or result of the Project, including theobjectives of the Project, as specified in Item 1.2of Schedule 1;

Project Budget means the budget to be developed by the Organisation in accordancewith clause 3.1, detailing how the Organisation will expend the Funds, and identifyingthe Organisations contributions and other contributions (if any) and the proposedexpenditure of such amounts for the purposes of conducting the Project and otherwiseperforming obligations under this Agreement;

Project Documents means all plans, drawings and other information relating to theProject and the Works that are brought into existence by or on behalf of theOrganisation under or in connection with this Agreement or otherwise relating to theWorks or the Project, including those documents identified in Item 1.3 of Schedule 1;

Project Manager means an independent, suitably qualified project manager engagedby the Organisation to supervise all construction works who is not an employee orofficer of the Organisation;

Project Material means all Material including Reports:

(a) brought into existence for the purpose of performing the Project, includingall Project Documents;

(b) incorporated in, supplied or required to be supplied along with the Materialreferred to in paragraph (a); or

(c) copied or derived from the Material referred to in paragraphs (a) or (b);Project Plan means the project plan to be developed by the Organisation inaccordance with clause 3.1, detailing how the Organisation will conduct and complete


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the Project in accordance with this Agreement, including timeframes for completion ofvarious stages of the Project;

Proper Authority includes any ministry, department, government, governmental or

semi-governmental authority, agency, instrumentality, council, corporation or otherlegal entity with legislative authority which has jurisdiction or authority over or inconnection with this Agreement, the Works, the Property or the Designated Use;

Property means the property or properties on which the Project is to be undertakenthat is detailed in Item 2 of Schedule 1 and includes the land and any improvements onthe land, and buildings and improvements to be constructed on the land pursuant tothis Agreement, but not including items that would not be regarded as fixtures at law;

Reports means the reports that the Organisation is required to produce and provide tothe Commonwealth in accordance with clause 11.5 and Item 5 of Schedule 1;

Specified Personnel Position means a position identified in Item 8 of Schedule 1;

Term of this Agreement has the meaning given in clause 2; and

Works means that part of the Project which relates to the design, construction,modification, expansion, refurbishment or fit-out (as applicable) and related activitiesat the Property, as contemplated by the Project Plan acceptable to the Commonwealthin accordance with clause 3.1(c) and also as described in Item 1.1 of Schedule 1.

1.2 Interpretation

In this Agreement, unless the contrary intention appears:

(a) headings are for convenience only and do not affect interpretation;(b) person includes an individual, the estate of an individual, a corporation, an

authority, an association or a joint venture (whether incorporated orunincorporated), a partnership and a trust;

(c) a reference to a party includes that party's executors, administrators,successors and permitted assigns, including persons taking by way ofnovation and, in the case of a trustee, includes a substituted or an additionaltrustee;

(d) a reference to a document (including this Agreement) is to that document asvaried, novated, ratified or replaced from time to time;

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

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

(g) a reference to a party, clause, schedule, exhibit, attachment or annexure is areference to a party, clause, schedule, exhibit, attachment or annexure to or


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of this Agreement, and a reference to this Agreement includes allschedules, exhibits, attachments and annexures to it;

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

(i) includes in any form is not a word of limitation;(j) a reference to $ or dollar is to Australian currency; and(k) no provision of this Agreement is to be interpreted to the disadvantage of a

Party because that Party (or its representative) drafted that provision.

2. Term of the Agreement

This Agreement commences on the Date of this Agreement and, unless terminated

earlier, expires on the Completion Date.

3. Planning, design and Approvals

3.1 Project Budget and Project Plan

(a) The Organisation must submit to the Commonwealth a Project Plan andProject Budget on or before the date specified in the Milestone Schedule.

(b) The Organisation must ensure that the Project Plan and Project Budget:(i) have been prepared diligently, effectively and to a high

professional standard;

(ii) will, if implemented in accordance with this Agreement, ensurethat all timeframes arising under this Agreement will be metand the Works will meet all requirements of this Agreementand, in particular, will be fit for the Designated Use;

(iii) will, in relation to the Project Plan, include details regardingconstruction arrangements and an Operational Plan whichincludes the matters specified at Item 5.4 of Schedule 1; and

(iv) are consistent with the Project Aim.(c) The Organisation must perform the Project in accordance with the Project

Plan and the Project Budget once they are acceptable to the Commonwealthand must not make any amendment to the Project Plan or the ProjectBudget that would substantively alter the:

(i) nature of, or the manner of completion of, the Works asprovided for in the Project Plan or Project Budget (or both asthe case may be);


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(ii) amount of the Funds to be spent by the Organisation on anyaspect of the Works or the nature of items on which the Fundsare to be spent as provided for in the Project Budget; or

(iii) consistency of the Project Plan or the Project Budget (or both asthe case may be) with the Project Aim,

unless approved in writing by the Commonwealth.

(d) For the avoidance of doubt, the Commonwealth's review of, or commenton, the Project Plan and the Project Budget do not in any way limit or affectthe Organisation's obligations under this Agreement. To the extent of anyinconsistency between the Project Plan (that is notified to the Organisationas being acceptable to the Commonwealth) and this Agreement or theProject Budget (that is notified to the Organisation as being acceptable tothe Commonwealth) and this Agreement, this Agreement will take

precedence.

3.2 Design of the Works

The Organisation is responsible for the design of the Works and must ensure thedesign of the Works:

(a) is conducted with the level of skill and care of a prudent and competentdesign professional;

(b) complies with the regulatory requirements of the relevant State or Territoryand local government in the jurisdiction in which the Works are to be

conducted;

(c) where the Property may be used (in whole or in part) for training purposesat any time during the Designated Use Period, takes into account thecurrent standards for training posts developed by the Royal AustraliaCollege of General Practitioners or the Australian College of Rural andRemote Medicine as they are relevant (or both as the case may be);

(d) will ensure that the Works are fit for the purpose of use for the DesignatedUse on and from the Date of Practical Completion, and throughout theDesignated Use Period; and

(e)

will ensure that a Certificate of Occupancy will be issued in respect of theWorks on their completion.

3.3 Project Documents

(a) The Organisation must develop, prepare and maintain copies of alldocuments necessary to complete the Works in accordance with thisAgreement, including, without limitation, all documents that would beprepared by a prudent and competent design professional, in order to ensurethe Works are, on completion, fit for use for the Designated Use,throughout the Designated Use Period.


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(b) The Organisation must deliver the Project Documents identified in Item 1.3of Schedule 1 to the Commonwealth no later than the date specified in theMilestone Schedule.

(c) Without limiting or affecting the Organisation's obligations under thisAgreement, the Organisation must make copies of the Project Documentsavailable to the Commonwealth for inspection and audit in accordance withclause 13.

3.4 Approvals

(a) The Organisation must obtain all Approvals for:(i) the construction of the Works; and(ii) the use of the Works for the Designated Use during the

Designated Use Period,

in accordance with this Agreement and must deliver a copy of eachApproval to the Commonwealth as specified in Item 6.2 of Schedule 1 tothis Agreement.

(b) If the Works must be varied to obtain any Approval, the Organisation mustnotify the Commonwealth in writing of those variations and, unless theCommonwealth otherwise consents in writing, must ensure that novariation will adversely affect the Project, the Works, the Project Aim andthe use of the Works for the Designated Use throughout the Designated UsePeriod.

4. Conduct of the Project

4.1 Obligation to perform the Project

In consideration of the provision of the Funds, the Organisation must perform theProject in accordance with the terms and conditions set out in this Agreement.

4.2 Performance of the Works

(a) The Organisation must:(i) appoint an independent Project Manager to supervise the Worksand notify the Commonwealth of the personal and contact

details of the Project Manager within 10 Business Days of thatappointment;

(ii) where a Project Manager ceases to perform that function for theOrganisation for any reason, notify the Commonwealth of thedate of cessation and ensure that the role of Project Manager isnot left vacant for a period greater than 10 Business Days;

(iii) upon appointment of a replacement Project Manager, notify theCommonwealth as provided in clause 4.2(a)(ii) hereof;


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(iv) ensure that the Works are carried out:A. in accordance with the Approvals for the Works;B. in accordance with the timelines specified inSchedule 1, the Project Plan and Project Budget;C. in accordance with the requirements and standards of

all Laws applicable to the Works;

D. diligently, effectively and to a high professionalstandard; and

E. so as to ensure that the Works will be fit for theDesignated Use.

(b)

For the avoidance of doubt, to the extent of any inconsistency between thetimeframes (if any) specified in the approved Project Plan and thetimeframes specified in Items 3 and 6.2 of Schedule 1, the timeframesspecified in Items 3 and 6.2 of Schedule 1 will prevail.

4.3 Specified Personnel Positions

The Organisation must:

(a) ensure that the persons listed in Item 8 of Schedule 1 against each SpecifiedPersonnel Position perform the role of the relevant Specified PersonnelPosition, or, where no person is listed in the table in Item 8 of Schedule 1

against a Specified Personnel Position promptly after the Date of thisAgreement, appoint a suitably qualified person to that Specified PersonnelPosition;

(b) promptly after appointment, notify the Commonwealth of the identity andqualifications of each person appointed to a Specified Personnel Position;

(c) where requested to do so by the Commonwealth, promptly (and in all casesin the period (if any) required by the Commonwealth) replace a personoccupying a Specified Personnel Position in circumstances where theCommonwealth considers it necessary to do so in order for theOrganisation to properly comply with its obligations under this Agreement;

(d) where a person ceases to perform a Specified Personnel Position for anyreason, promptly notify the Commonwealth of the date of that cessationand ensure that the Specified Personnel Position is not left vacant for aperiod of more than 10 Business Days; and

(e) promptly after appointment, notify the Commonwealth of the identify andqualifications of any person appointed to fill a vacant Specified PersonnelPosition.


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4.4 Commencement of the Works

(a) Without limiting the Organisation's obligations under clause 4.4(b), theOrganisation must not commence the Works on the Property (for the

avoidance of doubt this does not include work undertaken away from theProperty such as design work) until it has:

(i) obtained all relevant Approvals required under clause 3.4 thatare necessary to enable the commencement of the Works;

(ii) obtained all insurances required under clause 20.1;(iii) complied with its obligations under clause 6.2(a),

and it has obtained written confirmation from the Commonwealth (whichwill not be unreasonably withheld) that the Commonwealth is satisfied that

the Organisation has complied with the requirements set out in paragraphs(a)(i) to (a)(iii) (inclusive) above.

(b) The Organisation must:(i) obtain written confirmation from the Commonwealth under

clause 4.4(a); and

(ii) commence the Works,on or before the date specified for the commencement of the Works inItem 3.1 of Schedule 1 with time being of the essence.

4.5 Subcontracting

(a) The Organisation must, promptly on request by the Commonwealth,provide details in writing of all subcontractors that the Organisation isusing, or proposes to use, in relation to the conduct of the Project.

(b) In respect of all subcontracts the Organisation must ensure that:(i) the subcontract facilitates compliance by the Organisation with

its obligations under this Agreement;

(ii) the subcontract will not conflict with or detract from the rightsand entitlements of the Commonwealth under this Agreement;

(iii) the other party to the subcontract has the necessary relevantexpertise and the appropriate types and amounts of insurance toperform the work in relation to the Project;

(iv) the subcontract contains all the relevant terms of thisAgreement including those relating to subcontracting,intellectual property, audit and access, privacy, security,confidentiality, warranties and indemnities, disclosure andtermination and in particular that the Organisation has or willsecure itself a right to terminate the subcontract on terms no less


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favourable than those accorded to the Commonwealth byclause 18, in the event of this Agreement being terminated;

(v) the subcontract meets the requirements of clause Error!Reference source not found.; and

(vi) the other party to the subcontract acknowledges that it may beconsidered a Commonwealth service provider for the purposesof the Ombudsman Act 1976and subject to investigation by theCommonwealth Ombudsman under that Act and that theCommonwealth will not be liable for the cost of any suchinvestigation by the Commonwealth Ombudsman in connectionwith the subject matter of the subcontract or the subject matterof this Agreement.

(c) If requested, the Organisation must promptly provide to theCommonwealth a copy of any subcontract.

4.6 Inspection of Works

(a) At all reasonable times during the construction of the Works upon givingreasonable notice and subject to the Organisation's reasonable requirementsin relation to safety and security:

(i) the Commonwealth or persons authorised by theCommonwealth may enter the Property to inspect and examinethe Works; and

(ii) the Commonwealth may give notice to the Organisation of anyomission, fault or defect in the Works.(b) Within 10 Business Days, or such longer time as may be agreed to in

writing by the Commonwealth, having regard to the nature of the omission,fault or defect, after the receipt of a notice under clause 4.6(a)(ii), theOrganisation must cause all matters specified in that notice to be rectifiedand must notify the Commonwealth when rectification has been effected.

(c) Despite the Commonwealth's right to inspect and examine the constructionof the Works:

(i)

the Commonwealth is not obliged to check the construction ofthe Works for any defect, fault or omission; and

(ii) the Organisation is not relieved of responsibility for any defect,fault or omission in respect of the Works.

4.7 Progress reports

From the Date of this Agreement, the Organisation must promptly on request by theCommonwealth provide notice in writing to the Commonwealth of:

(a) the status of the Works and the actual status relative to the Project Plan; and


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(b) any material change in the Works that would result in a delay in the Worksreaching Practical Completion on the Date for Practical Completion.

4.8 Variations to the Works

(a) The Organisation must notify the Commonwealth in writing of all proposedvariations to the Works that would or might reasonably be expected to havean effect on:

(i) the price of the Works;(ii) the timeframes for completion of the Works, including the Date

for Practical Completion;

(iii) the fitness of the Works for the Designated Use;(iv)

the accuracy of the Project Plan or the Project Budget; or

(v) the Approvals obtained in relation to the Works.(b) The Organisation must not vary the Works in a manner described in

paragraph (a) without the consent in writing of the Commonwealth, whichwill not be unreasonably withheld or delayed.

4.9 Practical Completion of the Works

In order to achieve Practical Completion:

(a) the Works must be:(i) complete and free from errors, omissions and defects, except for

errors, omissions or defects that:

A. are of a minor nature;B. the immediate making good of which by the

Organisation is not reasonably practicable; and

C. the existence of which or the making good of whichby the Organisation will not significantlyinconvenience users of the Property or the Works for

the Designated Use;

(ii) fit for the purpose of use for the Designated Use;(b) the Organisation must have provided to the Commonwealth a copy of the

Certificate of Occupancy in respect of the Works; and

(c) the Works must have been commenced to be used by or on behalf of theOrganisation for the Designated Use.


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4.10 Date for Practical Completion

The Organisation must achieve Practical Completion of the Works on or before theDate for Practical Completion with time being of the essence.

4.11 Defects after Practical Completion

The Organisation must promptly rectify any defects, faults or omissions in the Workswhich:

(a) are referred to in clause 4.9(a)(i); or(b) otherwise become apparent after the Date for Practical Completion and

which would, or would reasonably be expected to affect the fitness of theWorks or the Property (or both as the case may be) for the purpose of usefor the Designated Use.

4.12 Force Majeure

(a) Where a Force Majeure Event occurs which has affected, or which theOrganisation considers is reasonably likely to affect, its ability to ensurethat the Works are:

(i) commenced by the date specified for the commencement of theWorks at Item 3.1 of Schedule 1; or

(ii) completed by the Date for Practical Completion of the Works atItem 3.2 of Schedule 1,

the Organisation agrees that it will immediately give notice to theCommonwealth of that fact, including:

(iii) full particulars of the Force Majeure Event;(iv) an estimate of its likely duration;(v) its affect or likely affect on the commencement or Practical

Completion of the Works; and

(vi) the steps taken, or to be taken, to rectify it.(b) The obligations on the Organisation under this Agreement to commence the

Works by the date specified for commencement of the Works or tocomplete the Works by the Date for Practical Completion (as the case maybe) are suspended to the extent to which they are affected by the ForceMajeure Event as long as the Force Majeure Event continues.

(c) In claiming a Force Majeure Event, the Organisation must use its bestendeavours to remove, overcome or minimise the effects of that ForceMajeure Event as quickly as possible.

(d) The Organisation will not have any right to payment (except in respect ofmoneys payable by the Commonwealth prior to the occurrence of the Force


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Majeure Event) from the Commonwealth to the extent that its performanceof this Agreement is affected by a Force Majeure Event.

5. Assumption of risks for the Works

5.1 Responsibility for the Project

The Organisation is fully responsible for the performance of the Project and forensuring compliance with the requirements of this Agreement and all Laws, and willnot be relieved of that responsibility because of any:

(a) involvement by the Commonwealth or any third party in the performanceof the Project;

(b) payment of the Funds made to the Organisation on account of the Project;or

(c) subcontracting of all or any part of the Works or the Project.5.2 Acceptance of risk

The Organisation accepts all risks in respect of, and the Commonwealth does notaccept any risk for, the conduct of the Works and the Project including withoutlimitation all risks of and associated with the design, construction and commissioningof the Works, including, without limitation, the risk of the actual cost of the design,construction and commissioning of the Works being greater than anticipated.

6. The Property6.1 Performing the Project

The Organisation must perform the Project on the Property identified in Item 2 ofSchedule 1.

6.2 Tenure

(a) On or before the date specified in Item 6.2 of Schedule 1, the Organisationmust be able to demonstrate ownership or the right to occupy the Propertyand must substantiate to the reasonable satisfaction of the Commonwealth

that it has tenure over the Property by way of fee simple, lease or anotherform of legally binding tenure that is sufficient to enable the Organisationto undertake the Project and comply with its obligations under thisAgreement, including without limitation under clause 7.

(b) Notwithstanding any other clause in this Agreement, the Organisationacknowledges and agrees that it is not entitled to receive, and theCommonwealth is not obliged to pay, any part of the Funds, and, if it hasbeen paid Funds, no Funds are to be expended by the Organisation, unlessand until the Organisation has complied with clause 6.2(a).


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(c) If the Organisation has not complied with clause 6.2(a) within thetimeframes specified in Item of Schedule 1, the Commonwealth may in itsabsolute discretion terminate this Agreement for default in accordance withclause 17.1.

7. Designated Use

7.1 Use of the Property and the Works for the Designated Use

As a fundamental condition of this Agreement, the Organisation undertakes:

(a) for the Designated Use Period:(i) to use the Property and the Works, or to ensure that the Property

and the Works are used, for the Designated Use;

(ii) to ensure the Property and the Works are not left unused orunoccupied for a period in excess of four weeks without firstobtaining the written consent of the Commonwealth; and

(iii) not to use the Property or the Works, or permit the Property orthe Works to be used for any purpose, other than the DesignatedUse, without first obtaining the written consent of theCommonwealth; and

(b) at all times during the term of this Agreement:(i) to safeguard the Property and the Works against loss, damage

and unauthorised use;

(ii) to maintain the Property and the Works in good condition; and(iii) to reinstate the Property and the Works if they are damaged or

destroyed.

7.2 Repayment Amount

Without limiting the Commonwealth's rights under this Agreement or otherwise atLaw or in equity, if within the Designated Use Period the Commonwealth is satisfiedon reasonable grounds that the Organisation has failed to comply with its obligations

under clause 7.1, the Commonwealth may by written notice to the Organisationrequire the Organisation to pay to the Commonwealth, as liquidated damages and notas a penalty, the relevant amount calculated in accordance with Item 13 of Schedule 1.The Organisation must pay to the Commonwealth the amount set out in the notice,within 20 business days of the date of the Commonwealth's notice. If the Organisationfails to make payment within 20 business days, the Commonwealth may recover theamount specified in its notice as a debt due from the Organisation.

7.3 Organisation's acknowledgement

The Organisation acknowledges and agrees that:


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(a) the amounts payable by the Organisation under clause 7.1 represent agenuine and reasonable pre-estimate of the loss to the Commonwealth; and

(b) the Organisation releases the Commonwealth from all claims arising out ofor in connection with the Commonwealth's rights under clause 7.1.

7.4 Registration and licensing

The Organisation must ensure that all general practitioners and other health careservice providers operating from the Property are at all times appropriately licensedand registered in accordance with the requirements of relevant regulatory bodies in the

jurisdiction in which the Property is situated.

8. The Funding

8.1 Payment of the Funds

(a) Subject to Parliamentary appropriation and to the provisions of thisAgreement, the Commonwealth agrees to pay the Funds to theOrganisation in accordance with the Milestone Schedule at Item 6.2 ofSchedule 1.

(b) The funding to be contributed by the Commonwealth for the performanceof the Project by the Organisation will not exceed the amount of Fundsspecified at Item 6.1 of Schedule 1;

(c) The Commonwealth may at its discretion:(i) defer;(ii) reduce; or(iii) not make a payment of Funds

where it forms the reasonable opinion that full payment is not properlyrequired by the Organisation because of Project surpluses or underspends.

(d) Without limiting its rights, the Commonwealth may at its discretion:(i) defer;(ii) reduce; or(iii) not make a payment of Funds associated with a Milestone

until the Organisation has performed all of the obligations that it is requiredto be performed up to the date of that payment under this Agreement.

8.2 Use of the Funds

Funds provided under this Agreement:

(a) must only be used for the purposes of carrying out the Project andperforming this Agreement;

(b) may not be applied towards administrative and other general costs of theOrganisation that are not directly associated with the performance of the


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Project (including the Organisation's costs of administering thisAgreement);

(c) must not, unless the prior written approval of the Commonwealth has beenobtained, be used for:

(i) ongoing operating (recurrent) costs (e.g. rent, utilities, salaries,maintenance);

(ii) professional health service delivery;(iii) the purchase of consumables (other than a consumables pack

that may be supplied with equipment on delivery);

(iv) the purchase of existing facilities, businesses or land;(v)

travel and accommodation; or

(vi) student or staff accommodation(d) must not, unless the prior written approval of the Commonwealth has been

obtained, be used in a manner which is inconsistent with the ProjectBudget.

8.3 Amounts of Funds

The funding to be contributed by the Commonwealth in relation to the Project will notexceed the amount of Funds specified in Item 6.1 of Schedule 1. The Commonwealthaccepts no liability for any debts incurred by the Organisation, or any of its boardmembers, employees, agents contractors or subcontractors, or for any budget overruns.

8.4 Sufficiency of amounts

The Organisation warrants that the Funds, (together with all other contributions madeor received by the Organisation in relation to the Project), will be sufficient to ensurethe due and proper completion of the Works and the Organisation's other obligationsunder this Agreement.

9. Management of Funds


(a) maintain a bank account controlled solely by the Organisation to hold allFunds under this Agreement;

(b) immediately deposit all Funds received into that bank account;(c) notify the Commonwealth of the identifying details of the bank account

within 10 Business Days of the execution of this Agreement and notify theCommonwealth of any changes to those details;


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(d) ensure that this bank account does not, at any time during the term of thisAgreement, contain any monies other than the Funds and interest earned onthe Funds;

(e) use and deal with any interest earned on the Funds as if the money earnedwas part of the Funds;

(f) not Commit any part of the Funds for expenditure that is likely to occurafter the end of the Agreement Period; and

(g) every six months, commencing 3 months after the Date of this Agreement,until the Date of Practical Completion, provide to the Commonwealth abank statement indicating the deposit and withdrawal details regarding thefunds in the bank account.

10. Other contributions


(a) notify the Commonwealth in writing within 10 Business Days of receipt, orallocation to the Project by the Organisation, of the amount, source andproposed use of any funding or other contributions not already identified inthe Project Budget; and

(b) ensure that the terms on which any other contributions are provided to theOrganisation for or in connection with the Project are not inconsistent withthe terms of this Agreement and do not, in any way, limit or affect theOrganisation's ability to comply strictly with its obligations, or the

Commonwealths ability to exercise its rights, under this Agreement; and

(c) if requested by the Commonwealth, provide to the Commonwealth withcopies of any written arrangements entered into, or proposed to be enteredinto, in respect of such other funding or contributions.

11. Records, Reports and Acquittals

11.1 Records and accounts

The Organisation must keep comprehensive and accurate accounts and records of itsuse of the Funds, that can be separately identified from other accounts and records ofthe Organisation.

11.2 Organisation must keep records

The Organisation must keep comprehensive written records of the conduct of theProject including, without limitation, progress against the Milestones and theachievements of the Project Aim.

11.3 Provision of records to the Commonwealth



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(a) produce reports, information and other Material produced under or inconnection with this Agreement and otherwise as reasonably required bythe Commonwealth; and

(b) provide all reports, information and other material to the Commonwealth inaccordance with the timeframes specified in this Agreement and otherwisepromptly upon demand.

11.4 Financial records

The Organisation must keep financial records relating to the Project so as to enable:

(a) all revenue and expenditure related to the Project to be identified in theOrganisations accounts;

(b) the preparation of a Financial Report; and(c) the Audit of these records.

11.5 Reports

Without limiting the Organisation's other obligations under this Agreement, theOrganisation must provide to the Commonwealth the Reports specified in Item 5 ofSchedule 1:

(a) at the times specified in Item 5 of Schedule 1; and(b) in the format (if any) and including the content specified in Item 5 of

Schedule 1; or

(c) as requested in writing by the Commonwealth.11.6 Audits

The Organisation must prepare a Financial Report at the end of each financial year inwhich the Organisation has received, expended or retained Funds pursuant to thisAgreement. The Organisation must engage an Approved Auditor to Audit theFinancial Reports of the Organisation and prepare a report.

11.7 Acquittals

Within 60 Business Days (by 30 September) of the end of each financial year in whichthe Organisation has received, expended or retained Funds pursuant to thisAgreement, or within 60 Business Days of the earlier termination of this Agreement,the Organisation must provide to the Commonwealth:

(a) a certificate signed by a representative of the Organisation with theauthority to make representations on behalf of the Organisation statingwhether:

(i) the Funds have been used for the purpose for which they wereprovided; and


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(ii) all terms and conditions of the Agreement were complied with;and

(b) the Financial Report and the Auditors Report on the Financial Reportreferred to in clause 11.6.

11.8 Retention of records and information

The Organisation must retain its financial records and other information referred to inthis clause for a period of seven years or such longer period as may be required byLaw.

11.9 Participation in Evaluations and Analysis of the Program

The Organisation must participate at its own cost and as required by theCommonwealth, in studies, evaluations and other activities intended to analyse the

success of the Project and the Program, on terms required by the Commonwealth.

12. Liaison

12.1 Commonwealths Project Contact

The Organisation must liaise with and report to the Commonwealths Project Contact,as nominated in Item 7 of Schedule 1 in relation to the Project, and as reasonablyrequired by the Commonwealths Project Contact for the purposes of this Agreement.

12.2 Provision of information

Upon request, the Organisation must within the timeframe stipulated in the request, orpromptly if no timeframe is stipulated in the request, provide all information inrelation to the Project or the Organisation as requested by the Commonwealth's ProjectContact for the purposes of this Agreement, including for monitoring and evaluationpurposes.

13. Access to premises and records

13.1 Access to records and Materials

The Organisation acknowledges and agrees that the Commonwealth and any persons

nominated by the Commonwealth may, at reasonable times and on giving reasonablenotice to the Organisation:

(a) access and inspect the Organisations premises to the extent relevant to theperformance of this Agreement;

(b) access and inspect the Property and the Works;(c) access and inspect any Assets, wherever they may be located; (d) require the Organisation (and its employees, agents and subcontractors) to

provide records, Project Documents and information in a data format andstorage medium accessible by the Commonwealth;


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(e) inspect and copy documentation, books and records, however stored, in thecustody or under the control of the Organisation or its employees, agents orsubcontractors relevant to this Agreement or the Project (or both); and

(f) require assistance in respect of any inquiry into or concerning the Works orthis Agreement. For these purposes an inquiry includes any administrativeor statutory review, audit or inquiry (whether within or external to theCommonwealth), any request for information directed to theCommonwealth, and any inquiry conducted by Parliament or anyParliamentary committee.

The Organisation must comply with all requirements of the Commonwealth under thisclause 13.1.

13.2 Access to hardware and software

The Organisation must provide the Commonwealth or its nominees with access to itscomputer hardware and software to the extent necessary for the Commonwealth toexercise its rights under clause 13.1 and provide the Commonwealth with anyreasonable assistance requested by it to use that hardware and software.

13.3 Costs

(a) Subject to clause 13.3(b), each Party must bear its own costs of any reviewsand/or audits conducted pursuant to this clause 13.

(b) If an audit or review conducted pursuant to this clause 13 identifies abreach by the Organisation of this Agreement, the Commonwealth may

recover its costs of conducting that review or audit as a debt due from theOrganisation.

13.4 Auditor-General and Privacy Commissioner

The Commonwealths rights under clauses 13.1 and 13.2 apply equally to the Auditor-General or a delegate of the Auditor-General, or the Privacy Commissioner or adelegate of the Privacy Commissioner, for the purpose of performing the Auditor-General's or Privacy Commissioner's functions or activities.

13.5 Application of this clause

This clause 13 applies for the duration of this Agreement and for a period of sevenyears from the termination or expiry of this Agreement.

13.6 Subcontracts

The Organisation must ensure that any subcontract entered into for the purposes ofthis Agreement contains a clause granting the Commonwealth access rights on termsequivalent to clauses 13.1 to 13.5 (inclusive).


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14. Project Material and Intellectual Property

14.1 Ownership rights in Project Material

All rights in relation to Intellectual Property comprised in the Project Material willvest, upon creation, in the Organisation.

14.2 Licensing of rights in Reports

The Organisation grants, and must ensure all third parties holding rights in relation toIntellectual Property comprised in Reports grant, to the Commonwealth a perpetual,irrevocable, royalty-free, worldwide, non-exclusive licence (including a right of sub-licence) to use, copy, modify, adapt and exploit the Reports for Commonwealthpurposes.

14.3 Licensing of rights in other Project Material

The Organisation grants, and must ensure all third parties holding rights in relation toIntellectual Property comprised in Project Material (other than Reports), to theCommonwealth a perpetual, irrevocable, royalty-free, worldwide, non-exclusivelicence (including a right of sub-licence) to use that Project Material for the purposesof the Project and the Program or for other purposes connected with the operation ofthis Agreement.

14.4 Project Material

On termination or expiry of this Agreement, or earlier if requested by theCommonwealth, the Organisation must deliver a copy of all Project Material then inexistence to the Commonwealth in an agreed format, or as otherwise directed by theCommonwealth.

14.5 Intellectual Property warranty

The Organisation warrants that anything done by the Organisation in the course of theProject, including in developing the Reports, will not infringe the Intellectual Propertyrights of any person. The Organisation further warrants that the Commonwealth willnot, at any time, be infringing the Intellectual Property rights of any person when itundertakes an activity allowed for under this Agreement or uses Project Material in amanner consistent with the licences granted, or to be granted, to the Commonwealth

under this clause 14.

14.6 Commonwealth Material

Intellectual Property rights and title to, or in relation to, Commonwealth Materialremains vested at all times in the Commonwealth. The Commonwealth grants theOrganisation a royalty-free, world-wide, non-exclusive licence to use, copy andmodify the Commonwealth Material for the purposes of the Project. The Organisationmust ensure that all Commonwealth Material is used strictly in accordance with anyconditions or restrictions specified by the Commonwealth from time to time.


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14.7 Moral Rights

(a) The Organisation must, unless otherwise agreed by the Commonwealth inwriting, ensure that each person who:

(i) has been involved in the performance of work under thisAgreement; or

(ii) is or will be, an owner or licensor of any Intellectual Propertythat is to be licensed to the Commonwealth in accordance withthis Agreement,

provides a written consent to the Commonwealth conducting any act thatthe Commonwealth is licensed to conduct under this Agreement whichwould otherwise infringe the Moral Rights held by that person (Consent).

(b) The Consent referred to in clause 14.7(a) shall be perpetual, irrevocable,and unconditional in nature.15. Acknowledgement and Publications

The Organisation must acknowledge the financial and other support it has receivedfrom the Commonwealth, at the times and in the manner as the Commonwealth directsfrom time to time:

(a) in all publications, promotional and advertising materials, publicannouncements, signs or plaques displayed at the Property and activities byit or on its behalf in relation to the Project or any products, processes or

inventions developed as a result of the Project; and

(b) in respect of publications, promotional and advertising materials, publicannouncements, signs or plaques in a form approved by theCommonwealth prior to its use.

16. Assets

16.1 Purchasing of Assets

The Organisation must not use Funds towards the purchase or lease of Assets unlessthe Asset is identified in Item 11 of the Schedule or such purchase or lease isotherwise agreed to in writing by the Commonwealth.

16.2 Use of Assets

The Organisation must not use Assets for any purpose other than the performance ofthe Project and the Designated Use unless it has obtained the prior written approval ofthe Commonwealth which will not be unreasonably withheld.

16.3 Obligations in relation to Assets



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(a) not encumber or dispose of any Asset, or deal with or use any Asset otherthan in accordance with this Agreement, without the prior written approvalof the Commonwealth which will not be unreasonably withheld;

(b) maintain all Assets in good working order;(c) be fully responsible for, and bear all risks arising in relation to, the use or

disposal of any Asset;

(d) maintain a register of all Assets, recording the date of purchase or lease, thepurchase or lease price, Asset description, Asset location, the proportion ofthe Funds used to create or acquire the Asset, the carrying amount of theAsset and (where relevant) details of Asset disposals including the saleprice; and

(e) as and when requested, provide copies of the register of Assets to theCommonwealth.

16.4 Disposal of Assets

The Organisation must obtain prior approval, in writing, from the Commonwealthbefore selling or otherwise disposing of an Asset. If, at the time of the sale ordisposal, the Asset has not been fully Depreciated the Organisation must, at the optionof the Commonwealth:

(a) pay to the Commonwealth within 20 Business Days of the date of the saleor disposal, an amount equal to the proportion of the value of the Assetfollowing Depreciation that is equivalent to the proportion of the purchase

price of the Asset that was funded from the Funds; or

(b) pay to the Commonwealth within 20 Business Days of the date of the saleor disposal, the proceeds of the sale or disposal, less an amount equal to thesum of the Organisations proportionate contribution to the purchase priceof the Asset and the Organisations reasonable costs of sale or disposal ofthe Asset; or

(c) use the amount specified in paragraphs (a) or (b) (as is determined by theCommonwealth) above for a purpose, and in accordance with conditions,approved in writing by the Commonwealth.

16.5 Interest

If the Organisation fails to make or use a payment as required by clause 16.4:

(a) the Organisation must pay the Commonwealth Interest on the relevantamount from the date it was due, for the period it remains unpaid; and

(b) the relevant amount, and Interest owed under this clause will berecoverable by the Commonwealth as a debt due to the Commonwealth bythe Organisation.


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17. Suspension and termination

17.1 Termination for default

If:

(a) the Organisation fails to provide evidence of the Organisations tenure overthe Property to the satisfaction of the Commonwealth within thetimeframes specified in clause 6.2(c);

(b) the Organisation fails to comply with any timeframe under this Agreementwhich is stated to be of the essence;

(c) the Organisation does not commence the Works within the timeframespecified in Item 3.1 of Schedule 1 for the commencement of the Works;

(d) the Organisation fails to remedy its failure to comply with any term orcondition of this Agreement within 10 Business Days (or such longerperiod as the Commonwealth may at its absolute discretion allow) ofreceiving notice from the Commonwealth requiring the Organisation to doso;

(e) the Commonwealth is satisfied on reasonable grounds that any statement,representation or warranty made by the Organisation is incorrect orincomplete in a way which would have affected the original decision toapprove the Funds for the Project;

(f) the Commonwealth is satisfied on reasonable grounds that a Report givenby the Organisation is significantly misleading or substantially incompleteor inaccurate;

(g) the Organisation:(i) becomes or is likely to become insolvent;(ii) makes an assignment of its estate for the benefit of creditors or

enters into any arrangement or composition with its creditors orhas a receiver, manager or administrator appointed on behalf ofdebenture holders or creditors; or

(iii) suffers any execution against its assets which has or will havean adverse effect on its ability to perform the Agreement; or(h) the Organisation breaches any condition of any other funding agreement

between the Organisation and the Commonwealth;

(i) the Organisation, by notice in writing given to the Commonwealth,withdraws from this Agreement; or

(j) the Commonwealth considers it appropriate for any other reason,


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the Commonwealth may by written notice to the Organisation, immediately requirethe Organisation to suspend dealings with the Funds, in whole or in part, in relation tothe Project or terminate this Agreement in its entirety or both as the case may be.

17.2 Liability of the Commonwealth

(a) If this Agreement is terminated or Funds for the Project are suspended inaccordance with clause 17.1(j), the Commonwealth will only be liable forany reasonable costs (excluding, without limitation, loss of prospectiveincome or profits) unavoidably incurred by the Organisation, which aredirectly attributable to the termination or suspension.

(b) Without limiting any other right the Commonwealth may have under thisAgreement or at Law or equity, including rights to recover the Funds, theCommonwealth will not be liable to pay any amount in excess of theamount of Funds remaining unpaid under this Agreement at the date of

termination or remaining unpaid in relation to the Project on discontinuanceof the Project.

(c) Except as provided in this clause, the Commonwealth will not be liable tothe Organisation for termination of this Agreement in accordance withclause 17.1(j).

17.3 Dealing with Funds on termination

(a) On termination of this Agreement, or for the duration of any suspension ofdealings with the Funds, the Organisation must deal with the Funds inaccordance with the directions of the Commonwealth and must cease all

other dealings with the Funds. The directions of the Commonwealth maybe given at any time and from time to time after the termination or duringany period of suspension. If the Commonwealth does not provide anydirections the Organisation must not deal with the Funds.

(b) The Commonwealth may end the suspension of dealings with the Funds bywritten notice to the Organisation, subject to such preconditions (includingvariations to this Agreement) which the Commonwealth may require.

(c) The Commonwealth will not be obliged to pay any part of the Funds to theOrganisation after the termination of this Agreement or during any periodof suspension of dealings with the Funds.

17.4 Deemed termination for convenience

If a purported termination for cause by the Commonwealth under any of subclause17.1(a) to 17.1(i) (inclusive) is determined by a competent authority not to be properlya termination for cause, then that termination by the Commonwealth will be deemed tobe a termination for convenience under clause 17.1(j), which termination has effectfrom the date of the notice of termination referred to in clause 17.1, and theOrganisation's sole rights in such circumstances will be those set out in clause 17.2(a).


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18. Repayment of Funds

18.1 Repayment of Funds

If:

(a) on expiry or on any earlier termination of this Agreement, any or all of theFunds:

(i) have not been spent or Committed in accordance with thisAgreement; or

(ii) cannot, by reconciliation between the accounts and recordsmaintained by the Organisation and the Project Budget, beshown to the reasonable satisfaction of the Commonwealth tohave been spent or Committed in accordance with this

Agreement;

or

(b) at any time the Commonwealth forms the reasonable opinion that anyFunds have been used, spent or Committed by the Organisation other thanin accordance with this Agreement,

the Commonwealth may by written notice to the Organisation:

(c) require the Organisation to repay that part of the Funds, and theOrganisation must repay to the Commonwealth the amount set out in the

notice, within 20 Business Days of receipt of the notice;

(d) deduct an equivalent amount from the Funds payable to the Organisationpursuant to this Agreement or from any other amounts payable to theOrganisation under any other agreement with the Commonwealth; or

(e) require the Organisation to use all or part of those Funds as theCommonwealth sees fit.

18.2 Failure to repay Funds

(a) If the Organisation fails to repay the Funds in accordance with a noticeissued under clause 18.1(c) or fails to use Funds as directed underclause 18.1(e):

(i) the Organisation must pay the Commonwealth Interest on theamount set out in the notice from the date it was due, for theperiod it remains unpaid; and

(ii) the amount set out in the notice, and Interest owed under thisclause will be recoverable by the Commonwealth as a debt dueto the Commonwealth by the Organisation.


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(b) The Organisation acknowledges that Interest payable under clause 18.2(a)represents a reasonable pre-estimate solely in respect of the loss incurredby the Commonwealth as a result of the loss of investment opportunity for,or the reasonable cost of borrowing other money in place of, the amount

which should have been repaid.

19. Indemnities

19.1 Organisation agrees to indemnify the Commonwealth

The Organisation releases the Commonwealth from and indemnifies and continues toindemnify the Commonwealth against any:

(a) loss, damage, costs and expenses suffered or incurred by theCommonwealth including as the result of claim made in relation to:

(i) loss of or damage to third party property; or(ii) the injury, illness or death of a third party;

(b) loss of or damage to Commonwealth property; or(c) loss, damage, costs and expenses suffered or incurred by the

Commonwealth in dealing with any claim against the Commonwealth,including legal costs and expenses on a solicitor/own client basis and thecost of time spent, resources used, or disbursements paid by theCommonwealth,

arising from:

(d) any act or omission by the Organisation, or any of its employees, agents, orsubcontractors in connection with this Agreement, where there was fault onthe part of the person whose conduct gave rise to that liability, loss,damage, or expense;

(e) any breach by the Organisation or any of its employees, agents, orsubcontractors of obligations or warranties under this Agreement;

(f) any use or disclosure by the Organisation, its officers, employees, agents orsubcontractors of Personal Information held or controlled in connection

with this Agreement; or

(g) the use by the Commonwealth of the Project Material, including any claimsby third parties about the ownership or right to use Intellectual PropertyRights (including moral rights) in Project Material.

19.2 Proportional reduction of liability

The Organisation's liability to indemnify the Commonwealth under clause 19.1 will bereduced proportionately to the extent that any fault on the Commonwealth's partcontributed to the relevant loss, damage, expense, or liability.


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19.3 Commonwealth's right to be indemnified is additional to other rights