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2019-07-15 GC Agenda - Attachment 1 to Item 8 - Alliance and Funding Agreement - TNC and Noosa Council
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General Committee Agenda -15 July 2019 - Attachment 1 to Item 8
ALLIANCE AND FUNDING AGREEMENT
BETWEEN
Noosa Shire Council
(ABN 97 969 214 121)
(“Noosa Council”)
-AND-
THE NATURE CONSERVANCY LIMITED
(as Trustee for The Nature Conservancy Australia Trust)
(ABN 83 243 328 398)
(“TNC”)
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Section 2
ALLIANCE AND FUNDING AGREEMENT dated day of 2019
PARTIES:
Noosa Shire Council (ABN 97 969 214 121) of 9 Pelican St, Tewantin QLD 4565 (“Noosa Council”)
AND
The Nature Conservancy Limited A.C.N. 104 635 654 as Trustee for The Nature Conservancy
Australia Trust (ABN 83 243 328 398) having its principal office at Suite 2-01, The 60L Green
Building, 60 Leicester Street, Carlton, VIC 3053, Australia (“TNC”)
(each, a “Party” and collectively, the “Parties”).
BACKGROUND
A. Noosa Council is a local government constituted for a public purpose under the Local
Government Act 2009.
B. Noosa Council’s objective is to work with the Noosa Shire community to shape Noosa Shire’s
future and the vision is “Noosa Shire - Different by Nature”.
C. TNC is an Australian Public Company limited by guarantee
D. TNC’s mission is: “To conserve the lands and waters on which all life depends.”
E. Both Parties wish to engage and work together to achieve the common goal of conserving,
protecting and restoring marine and estuarine environments and ecosystems in the Noosa
Shire, for the environmental, social, economic and cultural benefits they provide to the
community of Noosa Shire and visitors.
F. In particular, both Parties wish to engage in respect to:
a. shellfish reef restoration project; and
b. marine conservation activities,
in the Noosa Council’s local government area, in accordance with the provisions of Schedule A
- Project Description and Deliverables (collectively, the “Project”)
OPERATIVE PROVISIONS
1. DEFINITIONS
Agreement means this agreement including schedules.
Background IP means Intellectual Property rights owned by or licensed to a Party
as at the date of the Agreement, or acquired or developed by a Party during the term
of the Agreement independently of the activities carried out under the Agreement,
which that Party has the right to license to third parties and which are necessary or
desirable for the performance of the services, the Deliverables or proper use of the
goods.
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Section 3
Contact Officer means, for a Party, the person nominated in clause 19, or such other
person a Party nominates in writing to the other Party, from time to time.
Deliverables means the work, tasks and activities which are identified as
a deliverable in Schedule A which are required to be undertaken to deliver the Project.
Executive Level Forum means the group constituted pursuant to clause 13.
Force Majeure means an exceptional event or circumstance:
1.6.1. that impacts a Party;
1.6.2. that is beyond the Party’s control;
1.6.3. against which the Party could not reasonably have guarded before entering
this Agreement;
1.6.4. that the Party could not have avoided or overcome by the exercise of
reasonable care; and
1.6.5. that is not substantially attributable to the other Party.
Examples (assuming the foregoing criteria are met):
(a) war, civil commotion, terrorist action;
(b) natural disaster (such as flood, bushfire, earthquake, major cyclone,
viral epidemic);
(c) non-natural disaster (such as explosion, contamination, aviation or
maritime disaster);
(d) general strike, embargo;
(e) failure or non-availability of essential systems, facilities, equipment, or
supplies.
Grant means the maximum monetary sum of $1.2 million exclusive of GST that
Noosa Council will pay, by way of instalments, to TNC to contribute to funding the
Project to the extent agreed under, and payable in accordance with, this Agreement.
Information Privacy Principles means the Information Privacy Principles contained
in the Information Privacy Act 2009 (Qld).
Insolvency Event means:
1.9.1. For a Party subject to the Corporations Act 2001 (Cwlth):
1.9.1.1. (if a company) entering voluntary administration;
1.9.1.2. (if a company or a Part 5.7 body1) failing to satisfy a statutory
demand;
1.9.1.3. passing a voluntary winding up resolution, voluntarily applying to
be wound up, or suffering presentation of an application for its
winding up;
1.9.1.4. suffering the appointment of a provisional liquidator;
1.9.1.5. being wound up or being deregistered.
1 Part 5.7 bodies encompass certain corporations that are neither companies nor exempt public authorities nor
corporations sole, certain foreign corporations, and certain unincorporated associations and partnerships.
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Section 4
1.9.2. For a local government:
1.9.2.1. suffering the declaration, by a court of competent jurisdiction, that
it is unable to pay its debts as and when they fall due; or
1.9.2.2. suffering dissolution as a legal entity without another entity
acceding to its functions.
1.9.3. For a Party in any event:
1.9.3.1. suffering the appointment of a receiver, which appointment is not
terminated, postponed, or enjoined within 14 days after it is
made;
1.9.3.2. suffering an encumbrancee taking possession of its assets or any
of them;
1.9.3.3. failing to pay a judgment debt, or to have the judgment set aside,
within 21 days after the judgment is given against it;
1.9.3.4. failing to secure the return of an asset within 21 days after a
creditor or an encumbrancee lawfully seizes it.
Intellectual Property means without limitation, all copyright, patents, designs,
database rights, trademarks, trade secrets, Confidential Information and know-how
(whether registered, applied for, registrable or unregistered) and all other intellectual
property rights whether or not registered or registrable excluding Moral Rights that
are not transferable.
Measurable Outcome means an outcomes specified in Schedule A associated with
a Deliverable to measure the achievement of the associated Deliverable.
Parties mean Noosa Council and TNC.
Personal Information means information or an opinion (including information or an
opinion forming part of a database), whether true or not, and whether recorded in a
material form or not, about an individual whose identity is apparent, or can reasonably
be ascertained, from the information or opinion, which is received or learnt by TNC
from any source as a consequence of or in the performance of its rights and
obligations under this Agreement.
Phase II means the activities described in Schedule A under the heading “Phase II”.
Phase III means the activities described in Schedule A under the heading “Phase III”.
Project means the shellfish reef restoration project and marine conservation activities
detailed in Schedule A in accordance with the budget detailed in Schedule B.
2. INTERPRETATION
In this Agreement except where the context otherwise requires:
2.1.1. the singular includes the plural and vice versa and a gender includes other
genders;
2.1.2. a reference to a Party to this Agreement or any other document or Agreement
includes its, his or her administrators, executors, successors and permitted
assigns;
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Section 5
2.1.3. a reference to an item, clause or schedule is a reference to an item, clause
of or schedule to the Agreement and references to the Agreement includes
its schedules and annexures;
2.1.4. where a word or phrase is given a particular meaning, other parts of speech
or grammatical forms of that word or phrase have corresponding meanings;
2.1.5. a reference to a document or Agreement including this Agreement includes
a reference to that document or Agreement as amended, novated,
supplemented, varied or replaced from time to time;
2.1.6. unless a contrary intention appears, expressions and terms expressly used
in this Agreement which are defined in the law as at the date of these
Agreement have the same meanings as have been ascribed to them in the
law as at the date of the Agreement;
2.1.7. a reference to a statute, regulation, ordinance, code or other law or section
or schedule of a statute, regulation, ordinance, code or other law includes all
statutory instruments or regulations issued under any of them and any
statutory modification or re-enactment, or substitution, of any of them;
2.1.8. where a Party comprises two (2) or more persons, an Agreement or
obligation to be performed or observed by that Party binds those persons
jointly and severally and a reference to that Party includes a reference to any
one or more of those persons;
2.1.9. Headings are for convenience only and do not affect the interpretation of the
Agreement;
2.1.10. The Agreement may not be construed adversely to a Party just because that
Party prepared it;
2.1.11. Where the day on or by which something must be done is not a business
day, that thing must be done on and/or by the following business day;
2.1.12. All monetary amounts are in Australian dollars.
3. RELATIONSHIP BETWEEN THE PARTIES
The Agreement does not result in the formation of any relationship of employer and
employee, partnership, agency, or franchise.
Each Party is solely responsible for payment to their own employees, contractors,
subcontractors and agents for any and all amounts due and payable by way of salary,
superannuation, leave entitlements, allowances or such other benefits that those
employees, contractors, subcontractors and agents might be entitled to.
Each Party is required to comply with all applicable legislation in respect of their
employees, contractors and agents at their own cost.
Each Party must comply at their own cost and expense with any Acts, Rules,
Regulations, Industry Codes, Australian Standards, and other legal requirements
imposed by government departments, bodies or authorities.
To be clear, TNC has no authority to engage the services of any person or entity as
an employee, contractor to, or agent of, Noosa Council.
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Section 6
To be clear, Noosa Council has no authority to engage the services of any person or
entity as an employee, contractor to or agent of, the TNC.
Neither Party may incur any liability on behalf of the other Party, nor bind the other
Party to any agreement, contract, liability or other obligation, unless the other Party
provides express consent in writing in advance.
4. PURPOSE
Both Parties agree that the intention of this alliance is to:
capitalise on the expertise of The Nature Conservancy’s global networks and
experience (through knowledge brokering, mentoring, study tours and access to
subject matter experts) to improve Noosa River management and strengthen the
long-term social, environmental and economic health and resilience of the Noosa
River and surrounding marine environment;
demonstrate a leading example of a replicable, environmentally-focused,
collaborative alliance that achieves superior outcomes for the environment and local
communities compared to existing river and marine management models; and
increase government (State and Federal), private, industry and community support
for restoration and conservation-focused activities that improve the long-term social,
economic and environmental health and resilience of the Noosa River and
surrounding marine environment.
5. TERM
The term of this Agreement is from 30 July 2019 to 30 September 2022.
The Parties may agree in writing to extend this Agreement for a further period or
periods.
6. TERM
Both Parties agree:
to undertake Phase II and Phase III oyster reef restoration activities in the lower
Noosa estuary as detailed in Schedule A in consultation and working with
stakeholders including Kabi Kabi, industry and community;
to provide strategic conservation support for planning, implementation, peer view and
evaluation associated with appropriate elements of the Noosa River Plan and other
coastal and marine management plans as detailed in Schedule A;
to provide assistance and advice with the coordination of ecological and social
research required to improve the health of the Noosa River and other initiatives and
projects associated with the conservation and protection of the Noosa River systems
and coastal and marine system as detailed in Schedule A;
to provide critical evaluation and advice on potential reform of current and future
management activities (e.g. commercial and recreational fishing, recreation, tourism,
wetland restoration, sediment and nutrient inflows, community engagement, climate
change adaptation/mitigation approaches) as detailed in Schedule A; and,
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Section 7
to acknowledge and value the goals and aims of each other’s agency, including the
objectives of their respective strategic programs; but that by working collaboratively
together, the overall vision and individual goals and aims of both Parties can be more
effectively achieved.
7. OBLIGATIONS
Both Parties agree to:
7.1.1. work collaboratively in the planning, design, construction and management
of shellfish reefs in the Noosa River and in achieving the objectives of this
Agreement; and
7.1.2. ensure that all personnel utilised by it in connection to this Agreement are
appropriately qualified, competent and experienced in the provision of
required services
TNC agrees to:
7.2.1. lead the delivery and project management of Phase II and Phase III activities
associated with shellfish reef and achieve each Measurable Outcome for
a Deliverable as detailed in Schedule A; and
7.2.2. provide Noosa Council access to subject matter experts in the fields of
conservation planning, fisheries, aquaculture, restoration and community
engagement to provide strategic guidance, expertise and advice to Noosa
Council’s senior executives, environment and river management staff as
detailed in Schedule A; and
7.2.3. provide assistance to Noosa Council with strategic conservation planning,
creation of river, estuary and coastal management plans and activities, and
evidence-based decision analysis as detailed in Schedule A; and
7.2.4. provide assistance to Noosa Council with strategic conservation planning,
creation of river, estuary and coastal management plans and activities, and
evidence-based decision analysis as detailed in Schedule A; and
7.2.5. act as the lead proponent for, and use all reasonable endeavours to obtain,
all State government permits, authorities and approvals, unless it is agreed
otherwise by both Parties.
Noosa Council agrees to:
7.3.1. provide reasonable access to environmental management employees,
planning and permitting employees, engineers, plant operators and other
Noosa Council employees that may be of assistance in the delivery of the
Project and the objectives of this Agreement; and
7.3.2. commit to supporting the Project to ensure it can be effectively embedded
within Noosa Council priorities for the benefit of the local community; and
7.3.3. provide access to environmental and engineering reports, scientific studies,
management plans, data, metadata and other information that may be of use
to TNC in the planning and assessment of shellfish reef restoration and other
conservation activities associated with alliance objectives and the Project;
and
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Section 8
7.3.4. use all reasonable endeavours to obtain all local government permits and
approvals associated with shellfish reef restoration Phase II and Phase III.
Costs associated with applying for and obtaining local government permits
and approvals will be funded from the Grant payable to TNC; and
7.3.5. investigate opportunities for TNC to use open storage space to temporarily
store materials associated with reef construction (e.g. recycled shells) and
provide plant equipment such as excavators and trucks and their operators
as in-kind contributions towards construction of Phase II and Phase III oyster
reef restoration where appropriate;
7.3.6. assist in locating secure office space for up to two TNC employees on a
casual basis.
8. FUNDING
Both Parties will contribute to the costs associated with the Project to the value of
AUD$1.2 million exclusive of GST each over 3 years.
For clarity, subject to this Agreement, the Grant agreed to be paid by Noosa Council
is the limit of Noosa Council’s liability under this Agreement.
Noosa Council makes the Grant to TNC on the condition that TNC matches the Grant
with its own monetary co-contribution of AUD$1.2 million.
TNC will use and expend its monetary co-contribution of AUD$1.2million to contribute
to funding the delivery of the Project and achieve the Deliverables in accordance with
this Agreement.
Subject to clause 8.6, Noosa Council will pay the Grant in four instalments by transfer
to TNC’s bank account detailed below in AUD.
ANZ Bank, Edward & Charlotte Sts, Brisbane, QLD 4000, Australia
Account name - The Nature Conservancy
Account no - 1078 28043
BSB number - 014 015
SWIFT code – ANZBAU3M
Noosa Council will pay to TNC the Grant by way of the following instalments subject
to TNC delivering, and demonstrating to Noosa Council achievement of, the
Deliverables in accordance with this Agreement:
8.6.1. AUD$179,237, by no later than 30 days after the last Party executes the
Agreement and notifies the fact of execution by the Party to the other Party,
8.6.2. AUD$200,000 upon TNC delivering and demonstrating to Noosa Council
achievement of the Measurable Outcomes numbered 1, 2, 3, 4, 5, 8 and
13(a) in the Project Deliverables in Schedule A, to the satisfaction of Noosa
Council (acting reasonably);
8.6.3. AUD$492,962, subject to the payment being not earlier than 30th July 2021,
upon TNC delivering and demonstrating to Noosa Council achievement of
the Measurable Outcomes numbered 6; and for the relevant financial year,
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Section 9
7, 8, 9, 10 and 11; and 12; 14; and 20, in the Project Deliverables in
Schedule A, to the satisfaction of Noosa Council (acting reasonably);
8.6.4. AUD$328,400, subject to the payment being not earlier than 30th July 2022,
upon TNC delivering and demonstrating to Noosa Council achievement of
the Measurable Outcomes numbered, for the relevant financial year, 7, 8, 9,
10 and 11; and 15; 16; 17; and 19, in the Project Deliverables in Schedule A,
to the satisfaction of Noosa Council (acting reasonably);
8.6.5. No payment- The Final Project Report is due 30th September 2022
The Grant and the instalment amounts are shown exclusive of GST. GST means
goods and services tax under the GST Law, as that expression is defined in A New
Tax System (Goods and Services Tax) Act 1999.
TNC must only use the Grant paid by Noosa Council to undertake the Project in
accordance with the alliance objectives and the Deliverables as articulated in this
Agreement.
If TNC uses or applies the Grant for the purposes other than the Project and the
Deliverables specified in this Agreement it will constitute a material breach of this
Agreement and result in termination of this Agreement in accordance with clause 17.1.
TNC will endeavour to seek further funding support for the Project through a variety
of funders including philanthropic, foundation, corporate and government sources.
The implementation of objectives outlined in this Agreement is not contingent on this
additional funding
TNC will prepare, and provide to Noosa Council, 6 monthly2 Project status reports
including budget spend to date.
9. COSTS
Noosa Council and TNC shall each bear their own costs of and incidental to the
negotiation, preparation and execution of this Agreement, including any costs
incurred in relation to the discussions which are contemplated by this Agreement.
Any activities undertaken by Noosa Council or TNC under or in reliance on this
Agreement will be at their own risk and expense.
In addition to the Grant from Noosa Council and TNC’s own monetary co-contribution,
Noosa Council and TNC will each make in-kind contributions through input from key
management staff and personnel, consistent with the mutual interest in achieving the
Project and objectives of this Agreement.
10. COMMUNICATIONS AND COMMUNITY ENGAGEMENT
The Parties agree to consult, assist and co-operate with one another to ensure all
communications and community engagement are conducted in a professional
manner and are consistent with each Party’s policies. Where appropriate these will
be detailed and agreed through relevant project communication plans.
2 A 6 monthly period is a 6 month period ending on 31 December and 30 June.
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Section 10
All external communications pertaining to the alliance or arising from related activities
may only occur where each Party’s nominated delegate has approved in writing the
communication.
Each Party must not use the trademarks or logos of the other Party except as
expressly provided for in this Agreement or without the consent of the other Party.
11. CONFIDENTIALITY AND INFORMATION PRIVACY
During the course of the performance of this Agreement, the Parties may have access
to materials, data, strategies, systems, techniques, financial or other information
relating to the other Party and its programs, which is designated as, or by its nature
is, confidential (Confidential Information).
Each Party agrees not to use, divulge or publish the Confidential Information of the
other Party, except:
11.2.1. with the prior written consent of the other Party; or
11.2.2. when required to do so by law or parliamentary convention; or
11.2.3. in the case of Noosa Council, at a statutory meeting of Council in respect of
which the Project and/or the Agreement is being considered and discussed.
However, information a Party acquires via this Agreement is not confidential if:
11.3.1. it is already public knowledge when a Party acquires it; or
11.3.2. it becomes public knowledge post-acquisition otherwise than through breach
of confidence by the acquirer;
11.3.3. it is already lawfully in the acquirer's possession, otherwise than through
breach of confidence, when a Party discloses it; or
11.3.4. it is obvious or trivial.
Information Privacy
11.4.1. Where TNC and/or its personnel have access to and/or are responsible for
holding Personal Information in order to fulfil its obligations under this
Agreement, it shall:
a) as a contracted service provider to Noosa Council, comply with Parts
1 and 3 of Chapter 2 of the Information Privacy Act 2009 (Qld) in
relation to Personal Information as if TNC were “the agency” and
agrees that it will not at any time do an act, or engage in a practice, in
respect of Personal Information that would breach an Information
Privacy Principle;
b) ensure the Personal Information is protected against loss or against
unauthorised access, use, modification or disclosure and against other
misuse;
c) not use Personal Information other than for the purposes of this
Agreement, unless required or authorised by law;
d) not disclose Personal Information without the prior written agreement
of Noosa Council, unless required or authorised by law;
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Section 11
e) not transfer Personal Information outside of Australia without the prior
written consent of Noosa Council;
f) ensure that only authorised personnel who require access in order to
perform their duties have access to the Personal Information;
g) ensure that its personnel do not access, use or disclose Personal
Information other than in the performance of their duties;
h) immediately notify Noosa Council if it becomes aware that a disclosure
of Personal Information is, or may be, required or authorised by law;
i) fully co-operate with Noosa Council to enable Noosa Council to
respond to applications for access to, or amendment of a document
containing an individual’s Personal Information and to privacy
complaints; and
j) comply with such other privacy and security measures as Noosa
Council reasonably advises TNC in writing from time to time.
11.4.2. Where Noosa Council is not reasonably satisfied, on the basis of information
provided to it by TNC, that proper practices are in place to ensure that the
privacy and disclosure of information requirements for Personal Information
are being observed and maintained, Noosa Council may at any time require
TNC to make its personnel aware of its obligations in accordance with this
clause 11.4 including, when requested by Noosa Council, requiring those
persons to promptly sigh a Privacy Deed in the form required by Noosa
Council.
11.4.3. Any Personal Information exchanged between TNC and Noosa Council shall
be dealt with in accordance with the Information Privacy Act 2009 (Qld).
11.4.4. TNC must immediately notify Noosa Council upon becoming aware of any
breach of this clause 11.4 and must take such steps as is necessary to
minimise the consequences to the individuals whose Personal Information
was inappropriately disclosed and to reduce the risk of such inappropriate
disclosure occurring in the future.
11.4.5. TNC acknowledges and accepts that:
a) a breach by it or any of its personnel of any of the Information Privacy
Principles; or
b) inappropriate disclosure by it or any of its personnel in breach of the
Information Privacy Principles;
is a material breach of this Agreement.
Right to Information
11.5.1. The Right to Information Act 2009 (Qld) (“RTI Act”) provides members of the
public with a legally enforceable right to access documents held by a local
government.
11.5.2. The RTI Act requires that documents be disclosed upon request, unless the
documents are exempt or on balance, disclosure is contrary to the public
interest.
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Section 12
11.5.3. Information relating to this Agreement is potentially subject to disclosure to
third parties pursuant to the RTI Act and any such disclosure will not
constitute a breach of this Agreement.
11.5.4. If disclosure under the RTI Act, and/or general disclosure of information
provided by TNC in connection with this Agreement, would be of substantial
concern to TNC, because it would disclose trade secrets, information of
commercial value, the purpose or results of research or other information of
a confidential nature, this should be expressly indicated in writing by TNC.
Noosa Council cannot guarantee that any information provided by TNC will
be protected from disclosure under the RTI Act.
This clause 11 survives the end or earlier termination of this Agreement.
12. INTELLECTUAL PROPERTY
Intellectual Property resulting from research and development will be owned equally
as tenants in common by Noosa Council and TNC.
Background Intellectual Property specifically owned by a Party produced from work
conducted independently will remain the property of that Party.
Each Party acknowledges that all Background IP remains the sole property of its
owner.
The Intellectual Property arrangements and obligations sent out in the Agreement
shall survive termination of the Agreement.
13. GOVERNANCE
The Parties agree that this Agreement will be managed by an Executive Level Forum
comprising of at a minimum each Party’s nominated Contact Officers (Clause 19),
which will be responsible for the governance, strategic management and priority
setting for cooperative arrangements intended to be undertaken under this
Agreement.
The Executive Level Forum will meet at least twice each financial year with a view to
identifying or updating priority areas for cooperation during the following 6 months.
When required an alternative representative can be nominated by either Party’s
nominated contact.
Governance for activities under this Agreement will be through the respective Party
Executives ( Executive level forum) or their nominated delegation to oversee strategy,
budget and communication and community engagement.
The Parties agree to develop specific and appropriate monitoring and evaluation
measures and associated reporting for the Project by no later than 6 months after the
date of the formation of this Agreement.
For the term of the Agreement, TNC will provide annual reports by no later than 30
days after the end of each financial year.
TNC will provide 6 monthly reports to Noosa Council on the progress and status of
delivery of Phase II and Phase III of the shellfish restoration project, including
expenditure against grant monies provided by Noosa Council.
Alliance and Funding Agreement Page 12 of 25
Section 13
A technical advisory group will be established to advise specifically on the shellfish
restoration project with at least 3 independent (including Kabi Kabi) expert
representatives with appropriate skill, expertise and capabilities.
14. TRUSTEE COVENANTS
TNC acknowledges that it enters this Agreement as trustee of The Nature
Conservancy Australia Trust ABN 83 243 328 398.
Trustee Warranties
TNC declares that:
14.2.1. it is the sole trustee of the trust;
14.2.2. it has fully disclosed to the other Party the terms of the trust;
14.2.3. it possesses unqualified power under the trust to enter the Agreement;
14.2.4. it possesses unqualified power to discharge all of its obligations under the
Agreement;
14.2.5. it enters the Agreement in the proper exercise of its trustee powers;
14.2.6. it is not in breach of trust except as disclosed in writing to the other Party;
14.2.7. it will not breach the trust;
14.2.8. no action has been taken to vest or terminate the trust, and none is proposed;
14.2.9. no beneficiary is presently entitled to trust assets.
Prohibited Trust Dealings
14.3.1. TNC must not commit a breach of trust while any of its obligations under this
Agreement remain to be discharged.
Copy Trust Instrument
14.4.1. TNC must give Noosa Council, if requested, a copy of the deed or deeds
comprising the current trust constitution, to enable Noosa Council to verify
that the trust:
a) is properly constituted; and
b) otherwise meets the requirements of this clause 14.
14.4.2. Noosa Council must treat the trust deed/s as confidential.
15. DISPUTE RESOLUTION
The Parties agree that they will cooperate with each other and at all times act in good
faith and with the joint objective of successfully carrying out and delivering the Project
as contemplated in this Agreement.
The Parties will adhere to the following procedure in relation to disputes arising
from this Agreement, prior to the commencement of litigation or other external
dispute resolution procedure:
15.2.1. The Contact Officer for a Party may notify the other Party’s Contact
Officer in writing of the occurrence of a dispute (Dispute Notice), and the
Executive Level Forum will try to resolve the dispute through negotiation.
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Section 14
15.2.2. If the Executive Level Forum is unable to resolve the dispute within
15 business days from the receipt of the Dispute Notice, the dispute will
be referred to:
a) for Noosa Council, the person holding the position of Chief
Executive Officer (or equivalent); and
b) for TNC, the person holding the position of Chief Executive Officer
(or equivalent).
15.2.3. If the dispute is not resolved within 15 business days after its referral to
the representatives of each of the Parties under clause 15.2.2, either
Party may refer the dispute to a mediator agreed by the Parties or failing
agreement by the President for the time being of the Queensland Law
Society Incorporated, with costs of the mediator to be shared equally
between the Parties. Mediation is to be conducted in Noosa, unless the
Parties and the mediator agree otherwise.
16. NOTICES
Unless otherwise provided, any notice required by this Agreement will be deemed properly
given on the date it is delivered via email (see below), to an overnight courier service, or
deposited by registered or certified mail, postage prepaid, addressed to:
If to Noosa Council:
Noosa Council
PO Box 141
Tewantin QLD 4565
Attn: Kim Rawlings
Email: [email protected] & [email protected]
If to TNC:
The Nature Conservancy
60 Leicester Street
Carlton VIC, 3053
Attn: Chris Gillies
Email: [email protected]
17. TERMINATION AND LIABILITY
Either Party may terminate this Agreement only for a material breach of this
Agreement, having first provided written notice explaining the nature of the breach
and allowing either Party at least thirty (30) days from the notice to cure the breach,
or if the breach is of a nature that cannot be cured within thirty days, to begin efforts
which if completed would cure the breach within a reasonable period.
A Party may choose to terminate the Agreement by notice in writing to the other Party
in circumstances where the other Party experiences an Insolvency Event.
Alliance and Funding Agreement Page 14 of 25
Section 15
In the event the Agreement is terminated, except as provided for in clause Error! R
eference source not found.:
17.3.1. TNC’s liability to Noosa Council under this Agreement is limited to that
portion of the Grant received from Noosa Council that, as at the date of the
notice of termination, is not legally committed or otherwise expended by TNC
in compliance with this Agreement to deliver the Project, subject to and
conditional upon TNC providing Noosa Council with sufficient information
and supporting documentation to evidence the expenditure or legal
commitment of the claimed portion of the Grant received from Noosa Council,
by no later than 7 days after the date of termination of the Agreement.
17.3.2. Noosa Council is entitled to recover that portion of the Grant paid by Noosa
Council to TNC not expended or legally committed by TNC in compliance
with this Agreement to deliver the Project as evidenced by TNC pursuant to
clause 17.3.1.
17.3.3. TNC must repay to Noosa Council the balance of the uncommitted,
unexpended portion of the Grant received from Noosa Council by no later
than 30 days after the date of termination of the Agreement and provide
Council with sufficient information and supporting documentation to evidence
the expenditure or legal commitment by TNC of a claimed portion of the
Grant received from Noosa Council by no later than 30 days after the date of
termination of the Agreement.
In the event the Agreement is terminated each Party must return back to the other
Party any materials, documents, information, plans used either wholly or partly for the
Project.
Indemnity
17.5.1. TNC (the indemnifying party) indemnifies and keeps indemnified Noosa
Council (the indemnified party) against costs, liability and damages
incurred or sustained by the indemnified party directly caused by or arising
out of:
a) the indemnifying party (including its personnel) breaching the
Agreement;
b) any actions, claims or demands brought or made against the
indemnified party by a third party due to or arising out of the
indemnifying party carrying out or failing to carry out its obligations
under the Agreement, whether such acts or omissions are wilful,
negligent, reckless, unlawful or otherwise.
17.5.2. The indemnity under clause 17.5.1 does not extend to include liability for the
consequences due to the indemnified party’s (including its personnel’s)
breach of the Agreement; or wilful, negligent, reckless, or unlawful acts or
omissions.
Alliance and Funding Agreement Page 15 of 25
Section 16
18. FORCE MAJEURE
Neither Party will be:
18.1.1. in breach of this Agreement as a result of; or
18.1.2. liable for,
any failure or delay in the performance of its obligations under this Agreement to the
extent that such failure or delay is wholly or partially caused, directly or indirectly, by
Force Majeure.
19. NOMINATED CONTACT OFFICERS
The Noosa Council Contact Officer for this Agreement is:
Kim Rawlings
Director Environment & Sustainable Development
Noosa Shire Council
9 Pelican St, Tewantin QLD 4565
[email protected]
The TNC Contact Officer for this Agreement is:
Chris Gillies
Oceans Lead, Australia Program
The Nature Conservancy
60 Leicester Street Carlton Victoria 3053
[email protected]
20. GENERAL
Noosa Council, in its role as a local government, is not obliged to consent to anything
to which it would be unlawful to consent, or which relevant officers of Noosa Council
consider in their discretion to be unlawful, inappropriate or undesirable. To avoid
doubt, nothing contained in this Agreement will affect, prejudice or derogate from the
requirements of any statute, proclamation, Order in Council, rule, regulation,
ordinance, by-law or local law, or from the rights, powers and authorities of Noosa
Council under the provisions of any such enactment or under any declared policy of
Noosa Council.
Each person signing the Agreement as an officer or other representative of a Party,
assures each other Party or signatory that s/he possesses unrestricted authority to
sign in that capacity.
Neither Party is permitted to assign or novate any of its rights or obligations under
this Agreement to a third party.
Alliance and Funding Agreement Page 16 of 25
Section 17
This instrument is an agreement made by deed,3 binding each Party:
20.4.1. irrespective of its terminology (for example, referencing “clauses” and
"paragraphs" rather than “covenants”); and
20.4.2. irrespective of whether it is contractual or consideration otherwise passes in
return for a promise.
Amendments to this Agreement may be proposed by either Party at any time in writing
to the other Party. The terms of any amendments shall be negotiated by appointed
contact officers and given effect by written agreement signed by both Parties.
The laws of Queensland, Australia, govern this Agreement.
This Agreement supersedes all previous agreements about its subject matter. This
Agreement embodies the entire agreement between the Parties.
A provision is to be treated as omitted from the Agreement if:
20.8.1. the provision is void, unenforceable, or incomprehensible; or
20.8.2. retaining the provision would render the Agreement or part of the Agreement
void, unenforceable, or incomprehensible.
The Parties may execute this Agreement in any number of counterparts. When
executed and exchanged (which exchange the Parties or any of them may effect by
facsimile transmission), the counterparts will be deemed collectively to constitute the
instrument of agreement.
3 Relevantly, an agreement made by deed is a special form of written agreement, which might or might not
constitute a contract. An agreement made by deed binds the parties irrespective of whether consideration
passes between them, i.e. irrespective of whether a party does or promises something in return for what the
other, or another, party does or promises. A deed that provides for the passage of consideration between the
parties functions also as a contract.
Alliance and Funding Agreement Page 17 of 25
Section 18
DATED:
Executed by The Nature Conservancy Limited A.C.N. 104 635 654 as Trustee for The Nature
Conservancy Australia Trust (ABN 83 243 328 398):
as its deed;
under Corporations Act sections 127(1) and 127(3);
by the signatures of a director and a second director/the secretary:
Director Director/Secretary
Full name [Print] Full name [Print]
Executed on behalf of Noosa Shire Council:
as a deed;
pursuant to Local Government Act 2009 section 236;
by a Council delegate, who certifies his authority to sign;
in the presence of a witness:
Delegate Witness
Full name [Print] Full name [Print]
Alliance and Funding Agreement Page 18 of 25
Section 19
SCHEDULE A PROJECT DESCRIPTION This project proposes to establish an innovative and regionally significant Noosa River collaborative alliance, between the Noosa Council and the global conservation organization The Nature Conservancy, which seeks to improve the health and resilience of the Noosa River and the industries and local communities that rely on its long-term wellbeing. The focus is to: Improve the health and resilience of Noosa’s marine and estuarine environment through innovative restoration and coastal resilience projects; Capitalize on the expertise of The Nature Conservancy’s global networks and experience (through knowledge brokering, mentoring, study tours and access to subject matter experts) to improve Noosa River management and strengthen the long-term social, environmental and economic health and resilience of the Noosa River and surrounding marine environment; Demonstrate a leading example of a replicable, environmentally-focused, collaborative alliance that achieves superior outcomes for the environment and local communities compared to existing river and marine management models; and, Increase government (State and Federal), private, industry and community support for restoration and conservation-focused activities that improve the long-term social, economic and environmental health and resilience of the Noosa River and surrounding marine environment. The collaborative alliance will initially prioritize the restoration of oyster reefs in the lower estuary (as described below) as the first activity, with other potential activities including: General strategic support/advice for planning, management and evaluation associated with the new Noosa River Plan and other initiatives and projects associated with the river system; Coordination of research required to inform the delivery of the implementation of the Noosa River Plan; and Critical evaluation and potential reform of current and future management activities (e.g. commercial and recreational fishing, recreation, tourism, wetland restoration, sediment and nutrient inflows, community engagement). The collaborative alliance will commence on 30 July 2019 and will run for three years and 3 months, with the outcomes of the alliance to be reviewed in July 2022. The total operating budget is $2.4M exclusive of GST, inclusive of $1.2M from The Nature Conservancy and $1.2M Grant from Noosa Council with the expectation that TNC will raise further funding from a variety of other sources to support further delivery of shell fish reef restoration. Oyster reef restoration methodology will follow standards aligned with best practice oyster restoration and the Society for Ecological Restoration global guidelines. The project will follow a staged approach to restoration; Phase I – feasibility, which has been completed by the University of the Sunshine Coast (note, Phase I is not part of the Deliverables under this Agreement). Phase II - optimal design (2019-2020) which seeks to determine the optimal design, locations and most cost effective method of reef restoration. Phase III – pilot sites and full restoration (2020-2022) which seeks to construct reefs in their final design at two pilot sites for 12 months, then at feasible locations identified during Phase II. This phased, time bound approach will reduce ecological and financial risks through the application of an adaptive management framework. Alliance and Funding Agreement Page 19 of 25
Section 20
PROJECT DELIVERABLES
Objectives Deliverables Expected Measurable outcomes Party
completion responsible
date for
(from 1 July Deliverable
2019)
Shellfish reef restoration component
A-1 Project establishment A Technical Advisory Group (TAG) is 6 months 1. Terms of reference for the TAG developed, TNC
and management established to provide project oversight. TAG is established and at least one meeting
This will include a clear terms of held. TNC
Establish effective project reference and consist of representatives 2. Evidence of Kabi Kabi involvement.
governance, management, from key stakeholders (Noosa Council,
communication and TNC, Kabi Kabi and at least two other
reporting sufficient to independent parties).
successfully implement Appointment of dedicated project 3 months 3. Appointment of Project Manager to oversee the TNC
shellfish restoration project manager who is a marine biologist with Project.
extensive project management
experience, for the term of the
Agreement.
A Project Implementation Plan detailing 6 months 4. A Project Implementation Plan produced by TNC
at a minimum: TNC, endorsed by Technical Advisory Group,
o A detailed risk assessment and delivered by TNC to Noosa Council for
associated with the project. presentation and approval by Noosa Council its
o A Communications and media plan, approval.
outlining media protocols, 5. A Project Implementation Plan presented to
opportunities and the role of TNC Noosa Council by TNC in conjunction with
and Council. Council officers for its approval, and (if TNC & Noosa
acceptable) approved in writing by Noosa Council
o A Monitoring, Evaluation and
Reporting Plan which identified Council by no later than two months after
ecological and social monitoring delivery.
programs, how they will be reported
on and how this will fed back into
the project.
Alliance and Funding Agreement Page 20 of 25
Section 21
Objectives Deliverables Expected Measurable outcomes Party
completion responsible
date for
(from 1 July Deliverable
2019)
Participate in public forums to provide Ongoing for 6. Participate in at least three public TNC
the Noosa community opportunities to the duration of presentations/forums in the first 9 months after
learn about the project and TNC. the project formation of this Agreement, with the purpose to
provide the Noosa community opportunities to
learn about the project and TNC.
TNC
7. Participate in at least six public
presentations/forums in the 2nd and 3rd financial
year of the term of this Agreement, with the
purpose to provide the Noosa community
opportunities to learn about the project and
TNC. TNC & Noosa
8. A minimum three media statements throughout Council
duration of project
Annual project reports and final report For each 9. An annual project report (and, when applicable, TNC
each of which address, at a minimum: annual project final report) is prepared and produced by TNC,
Activities undertaken during the report - Yearly endorsed by Technical Advisory Group, and
subject financial year, status and delivered by TNC to Noosa Council, within 60
progress against deliverables, For the final days of the end of each financial year during the
budget progress, income and report – 30th term of the Agreement.
expenditure, report against 10. The annual report and, when applicable, final TNC & Noosa
September
report) in Measurable Outcome 9 is presented Council
monitoring and evaluation program 2022
and measurable outcomes and to Noosa Council by TNC in conjunction with
outline of proposed upcoming Noosa Council officers for its approval for
works/activities for future period. endorsement within 90 days of the end of each
financial year during the term of the Agreement,
and (if acceptable) approved by Noosa Council.
6 monthly status and progress reports 6 monthly 11. 6 monthly status and progress reports, and TNC
which address, at a minimum: financial statement, are produced, endorsed by
Progress against deliverables and the Technical Advisory Group, and provided to
monitoring and evaluation report. Noosa Council, within 30 days of end of each
six (6) month period. Reports and financial
6 monthly financial statements including
statements due at the end of the financial year
a statement of Project income/funding
may be included with annual reports and the
and expenditure
final report.
Alliance and Funding Agreement Page 21 of 25
Section 22
Objectives Deliverables Expected Measurable outcomes Party
completion responsible
date for
(from 1 July Deliverable
2019)
A-2: Site selection Oyster reef restoration suitability model 12 months 12. Habitat suitability model which incorporates TNC
incorporating physical parameters of industry, Kabi Kabi and public interests.
Identify suitable restoration oysters and public and industry usage,
sites for Phase II and Phase access etc. to identify priority sites for
III and appropriate reef restoration.
design that minimize Obtain necessary State government 12 months 13. Outcomes:
estuary-user conflict whilst permits/authorities including particular (a) Obtain all required State government 13(a) - TNC
optimizing reef rehabilitation resource allocation authority, for oyster permits/authorities for installation of oyster reefs.
reef restoration
(b) Obtain all required Local government
Obtain necessary local government permits/approvals for installation of oyster 13(b) – Noosa
permits/approvals including in particular reefs are obtained. Council
fisheries development approval for
oyster reef restoration
Community, industry and stakeholder 12 months 14. Records of public and stakeholder consultation, TNC
consultation sufficient to gain majority including one-on-one meetings, open forums,
support for reef restoration locations. media, etc.
A-3 Community Community, industry and stakeholder 14 months 15. Records of public and stakeholder consultation, TNC & Noosa
engagement consultation to identify most appropriate including one-on-one meetings, open forums, Council
community volunteering opportunities media, etc.
Strengthen community (e.g. shell recycling, oyster gardens,
interest, support and oyster watch, video monitoring).
participation in Noosa River Establish at least one community 18 months 16. Record of volunteer hours dedicated to TNC & Noosa
restoration by establishing a volunteering program identified from the community volunteering programs, such as: Council
community volunteering above process which takes into account shell recycling, oyster gardens, oyster watch,
program to support reef current and future resources, video monitoring.
restoration management and interest.
A-4 Reef restoration Restoration at two pilot sites (approx.24 24 months 17. At least two (2) sites with at least overall 80m TNC
40m-50m shore length per site) which shore length of reef restored, and being actively
Restore oyster reef pilots reefs design, growth and survival. monitored.
ecosystems across the
lower estuary
Alliance and Funding Agreement Page 22 of 25
Section 23
Objectives Deliverables Expected Measurable outcomes Party
completion responsible
date for
(from 1 July Deliverable
2019)
Restoration across multiple further sites, 36 months 18. In addition to the two pilot sites, a number of TNC
as determined by habitat suitability sites comprising a minimum of a further
modelling and outcomes of community aggregated 600m2 surface area of restored
consultation. oyster reef in the Noosa River estuary.
Monitoring and evaluation study for both Ongoing for 19. Annual monitoring and evaluation report card TNC
pilot and full restoration sites. Monitoring duration of with 6 monthly status reports to be provided.
to include oyster metrics, invertebrates project, at least
and fish use (detailed in MER plan). 6 monthly
Marine conservation component
A-5 Noosa River Plan Run workshop with Noosa Council to 9 months 20. Workshop completed. TNC & Noosa
identify ongoing focus areas for TNC Council
Provide technical and support.
expert support to Noosa for Provide technical/peer review on Ongoing for 21. Minimum 5 peer review reports completed TNC
planning, implementation minimum five plans/reports/studies if duration of during the three year term of this Agreement, if
and evaluation associated requested by Noosa Council. project requested by Noosa Council. If Noosa Council
with appropriate elements of requests a peer review, TNC will provide a
the Noosa River Plan and minimum of 3 experts who are qualified in the
other coastal and marine relevant area of expertise for Noosa Council
management plans consideration and Noosa Council’s acceptance
of 1 expert for the peer review.
Facilitate a minimum of three study tours 36 months 22. Minimum three study tours completed during TNC & Noosa
of relevant sites in line with objectives the three year term of this Agreement, if Council
and scope of the program if requested requested by Noosa Council.
by Noosa Council (flights and incidentals
covered separately by Noosa Council,
accommodation and other travel
covered by this Grant).
Develop a Conservation Action Plan for 36 months 23. Conservation Action Plan and Community TNC & Noosa
specific issues (not yet determined) Workshops completed as required. Council
relevant to the Noosa Estuary (including
community workshops) if requested by
Noosa Council.
Alliance and Funding Agreement Page 23 of 25
Section 24
Objectives Deliverables Expected Measurable outcomes Party
completion responsible
date for
(from 1 July Deliverable
2019)
Facilitate access to TNC conservation Ongoing for 24. A number of new contacts/networks to assist TNC
networks and researchers if requested duration of Noosa Council with ongoing and future marine
by Noosa Council. project conservation activities.
Promote Noosa Council’s Noosa River 36 months 25. Presentation to at least one national and one TNC & Noosa
Plan and shellfish restoration project in international conference. Council
at least one national and one
international conference.
Promote Noosa Council’s Noosa River Ongoing for 26. A number of new corporate/ government/ TNC & Noosa
Plan and shellfish restoration project to duration of philanthropic alliances and new in-kind Council
corporate, philanthropic and project support/financial funding contributions.
state/federal government audiences to
establish further support for
conservation activities that support the
Noosa River Plan.
Alliance and Funding Agreement Page 24 of 25
Section 25
SCHEDULE B – PROJECT BUDGET
PROJECT COSTS Year 1 - Year 2 – Year 3 – Total
2019/20 2020/21 2021/22
Activity #1 - Strategic planning support 132,904 136,069 139,329 408,303
Activity #2 - Site visits, exchanges, workshops 52,246 52,799 53,368 158,412
Activity #3 - Oyster restoration 404,438 646,999 310,860 1,362,297
Activity #4 – Communication and engagement 62,472 57,920 58,877 179,269
Activity #5 - Project management 106,413 92,136 94,366 292,916
Subtotal 758,473 985,924 656,800 2,401197
Noosa Council contribution 379,237 492,962 328,400 1,200,599
Total Expense (GST exclusive) 758,473 985,924 656,800 2,401,197
Alliance and Funding Agreement Page 25 of 25