Funding agreement between ministry of business, innovation and employment and te runanga o ngati waewae incorporated for direct sourcing and management of pounamuthis project is funded through pgf whenua maori allocation
FUNDING AGREEMENT BETWEEN MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT AND TE RUNANGA O NGATI WAEWAE INCORPORATED FOR DIRECT SOURCING AND MANAGEMENT OF POUNAMUThis project is funded through PGF Whenua Maori allocation
This project is funded through PGF Whenua Maori allocation
The parties (identified below in Part 1) agree to be bound by the terms and conditions of this Agreement, as set out below in Part 1 (Key Details), Part 2 (General Terms), Part 3 (Definitions and Construction) and the Schedule (Payment Request).
PART 1: KEY DETAILS
The Sovereign in right of New Zealand, acting by and through the Chief
Executive of the Ministry of Business, Innovation and Employment (Ministry)
Te Runanga O Ngati Waewae Incorporated, an Incorporated Society with offices at 11 Hamel Lane, Kaiapoi (Recipient)
Funding Start Date
Through the Provincial Development Unit, the Ministry is responsible for administering the Provincial Growth Fund, which aims to lift productivity potential in New Zealand’s provinces. Its priorities are to enhance economic development opportunities, create sustainable jobs, enable Māori to reach full potential, boost social inclusion and participation, build resilient communities, and help meet New Zealand’s climate change targets.
The Funding under this Agreement is from the Whenua Māori allocation of the Provincial Growth Fund. The Whenua Māori allocation is to support Māori landowners to achieve greater levels of prosperity through investment in Māori-owned land. Whenua Māori funding is aligned with the intent of the Provincial Growth Fund, including its regions of focus, and is administered by the Provincial Development Unit.
The Recipient is an Incorporated Society.
Te Runanga o Ngāti Waewae represents the Ngati Waewae Papatipu Runanga of the Ngai Tahu Tribe. Its aims include:
• Providing for the wellbeing of the members of the Runanga through administrative assistance, guidance and management in their spiritual, cultural, educational, moral, social and economic affairs;
• Encouraging good health of Runanga members and the community; and,
• Promoting and safeguarding the amenities and the health, safety, and economic, cultural and social welfare of the Tangata Whenua and wider community of every region, district or area which is traditionally of concern to the Runanga.
The Recipient has sought a funding contribution from the Ministry for the purposes of the Project described below. The Ministry has agreed to contribute funding on the terms and conditions of this Agreement (Agreement).
Key details of this Agreement are set out in this Part 1. The full terms and conditions are set out in Part 2. Defined terms and rules of interpretation are set out in Part 3.
No Funding is payable under this Agreement until the Ministry has confirmed to the Recipient in writing that it has received, and found, in its
sole discretion, to be satisfactory to it in form and substance, the following documents and evidence:
• A letter from the Recipient confirming the co-funding secured and evidence of any third party co-funding commitments.
• Financial information - a final, updated, funds flow statement/model and budget setting out the funding and application of funds in relation to the Project and the financing thereof, including all fees, costs and expenses (including taxes) in connection with the same.
• Evidence that the Recipient has filed its audited annual financial statements with the Registrar of the Companies Office.
• A copy of a resolution of the Recipient in accordance with its rules or constitution:
A. approving the terms of, and the transactions contemplated by, the project and the agreement;
B. authorising a specified person or persons to execute the agreement on its behalf; and
C. authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the agreement.
• Confirmation that all necessary authorisations have been received (including mining permits and resource consents)
These conditions precedent must be satisfied within a 6 month period from the date of signing, unless agreed otherwise in writing with the Ministry. In the event that they are not satisfied within that time, the Ministry may notify the Recipient that this Agreement has not come into effect and is null and void.
6 Project Description The project will enable Ngāti Waewae to undertake direct sourcing and extraction of Pounamu from its own lands and adjacent/appropriate sites on the West Coast.
Ngāti Waewae owns the Pounamu resource, but is currently reliant on sourcing pounamu asCommercial Information
, which accounts for percent of its Pounamu received. This means, through the Ngai Tahu (Pounamu Vesting) Act 1997, it is currently required to pay a fee equivalent to percent of the fair value of the recovered Pounamu to the entities that source it.
This project will secure the ongoing supply of Pounamu to support Ngāti Waewae's Pounamu tourism and commercialisation operations.
The direct sourcing of Pounamu business becomes viable on the basis of per annum being directly sourced and extracted by Ngāti
Waewae with profit being achieved from . The business will be self-sustaining beyond this point.
The PGF funds will be used by the Recipient for capital expenditure (mainly for contributing towards the purchase of required equipment, machinery, vehicles and tools).
The Recipient will:
• Engage an experienced Project Specialist to deliver the project;
• Confirm all land access arrangements;
• Co-ordinate with to
finalise key dates and details for commencement of operations;
• Provide detailed final costings for the project;
• Confirm final project plan; and
• Set up the mining operation for commencement through:
a) purchase of equipment and machinery
b) employment of staff/contractors for on-site operations Expected outcomes of the project which align with the PGF objectives:
The project will create permanent jobs in addition to educational
and training opportunities through expansion of the carving industry. This will enhance the well-being of Maori and non-Maori through increased employment, sustainable employment options and will provide an inclusive environment for new whanau led and operated initiatives to be created.
• Direct and secure sourcing of Pounamu will enable better utilisation of Maori assets and provide employment opportunities. This allows Ngāti Waewae to actively practice their role as Kaitiaki.
• The project will generate economic benefits and is aligned to benefit the tourism industry in the West Coast region. The project will also add further authenticity to the NZ Pounamu product.
• Community benefits will be delivered through jobs and training/educational opportunities.
• Due to the significance of Pounamu as a Taonga the project will follow principles that will prevent Pounamu being removed from places of cultural and historical significance, ensure mining only takes place on Ngai Tahu land (or nearby) where mining permits are viable, and introduction of a system akin to a quota for sustainable extraction.
7 Project Deliverables and Instalments
The Recipient is to complete the following Project Deliverables for the Project to the satisfaction of the Ministry by the following dates:
Co-funding amount required before Ministry funding payable
Instalment payable on completion of Project Deliverable plus GST (if any)
Funding Agreement executed by both parties and all Conditions Precedent have been satisfied or waived
Delivery of Project start-up report and project plan with costings.
– team in
Delivery of draft pre- implementation report for Pounamu sourcing and management initiative
Scoping and quote process for heavy equipment with local providers
Purchase of equipment and machinery
Final Report to the Miinistry
8 Key Personnel
9 Approved Contractors As approved in writing by the Ministry.
10 Funding The total Funding available under this Agreement is up to NZ$995,500.00
plus GST (if any). This is the Total Maximum Amount Payable.
The Funding will be paid in instalments on satisfactory completion of the relevant Project Deliverable; receipt of a Payment Request in accordance with clause 1 of Part 2 and the terms and conditions of this Agreement.
11 Co-Funding The Recipient must have secured the following Co-Funding to be used for the Project, plus GST (if any):
Te Runanga o Ngati Waewae Incorporated
12 Reporting The Recipient will provide the Ministry with the following reports:
1. A monthly status report by the 4th Business Day of the following month.
2. A quarterly report by the 10th Business Day following the end of each quarter and within 20 Business Days of completion of the Project.
3. Post Contract Outcomes Report within 6 months of the End Date
Each monthly status report must include the following information:
(a) recent progress on Project;
(b) total number of people that worked on the Project in any capacity during the month as a result of the Funding. The report should state how many of these are working part-time or full-time, and how many are contractors, consultants or direct employees; and
(c) any risks or notable issued that have arisen over the past month, including mitigations.
Each quarterly report must include the following information:
(a) description and analysis of actual progress of the Project against planned progress including achievement of any Project Deliverables;
(b) a summary of Funding and any co-funding received for the Project;
(c) a summary of expenditure to date, actual against budgeted;
(d) plans for the next quarter (not required in the final report following completion of the Project);
(e) any risks and/or issues arising or expected to arise with the Project, costs or performance of this Agreement including detail of any issues notified to the Ministry in accordance with clause 3.11 of Part 2;
(f) an update on media, marketing and communication activities for the Project; and
(g) any other information that is notified by the Ministry in writing to the Recipient.
The Post Contract Outcome report must include the following information:
(a) an analysis of how the Funding has enabled the Recipient to achieve the key outcomes of the Project;
(b) how the Funding has accelerated regional development through increasing the productivity potential of and contributing to more and better paid jobs in the region;
(c) the number of jobs that were created during and resulting from the Project;
(d) how the Project has increased social inclusion and participation;
(e) how the Project has contributed to Māori development;
(f) how the Project has contributed to New Zealand’s climate change commitments and environmental sustainability;
(g) how the Project has increased regional and national resilience by improving critical infrastructure and/or growth and diversification of the economy; and
(h) any other information that is notified by the Ministry in writing to the Recipient.
The Recipient acknowledges that the Ministry is developing an evaluation framework for the Provincial Growth Fund and is likely to receive requests for additional information from the Ministry.
RIGHT OF NEW ZEALAND acting by and through the Chief Executive of the Ministry of Business, Innovation and Employment or his or her authorised delegate:
SIGNED for and on behalf of the TE RUNANGA O NGATI WAEWAE
INCORPORATED by the person named below, being a person duly authorised to enter into obligations on behalf of the Recipient:
Name: Position: Date:
Name: Position: Date:
Each signatory warrants that they have the necessary authority to execute this Agreement for and on behalf of the Recipient, that collectively they are the only signatories needed for that purpose, and that all consents and approvals required under and for the purposes of the rules of the Recipient and section 15 of the Incorporated
Societies Act 1908 in connection with the entry into, execution and performance of this Agreement have been obtained and remain in full force and effect.
END OF PART 1
PART 2: GENERAL TERMS
1.1 The Ministry must pay the Funding (up to the "Total Maximum Amount Payable" specified in the Key Details) to the Recipient, subject to the terms of this Agreement. Unless stated otherwise in this Agreement, the Recipient may only claim the Funding to the extent necessary to cover Eligible Costs incurred by the Recipient. If the Recipient receives any Funding before it has incurred corresponding Eligible Costs, the Recipient must use the Funding solely on Eligible Costs.
1.3 Each Payment Request is to be signed by an officer and an authorised signatory of the Recipient and must be in the form set out in the Schedule and include the confirmations set out therein, and must include:
(a) the amount of Funding requested, which must not exceed the Instalment set out in item 7 of the Key Details;
(b) a breakdown of total Eligible Costs incurred by the Recipient and confirmation that such costs are Eligible Costs for the purpose of this Agreement and have been paid or are currently due and payable (not required for any initial payment to be paid on the Commencement Date);
(c) copies of invoices received by the Recipient from third parties in relation to the Eligible Costs where those Eligible Costs are more than $1,000 (on an individual basis or when grouped by supplier or subject matter) and statements and accounts showing the Eligible Costs incurred;
(d) a valid GST invoice complying with the Goods and Services Tax Act 1985;
(e) confirmation that no Termination Event is subsisting and that each of the warranties under clauses 3 and 7 of this Agreement are correct as at the date of the Payment Request; and
(f) contain any other information required by the Ministry.
1.4 The Ministry is not required to pay any Funding in respect of a Payment Request:
(a) where the Ministry is not satisfied with the progress of the Project;
(b) if any Project Deliverable(s) have not been completed by the relevant "Completion Date" specified in the Key Details;
(c) if the Ministry is not satisfied with the information that is contained within, or provided in connection with, the reports or the Payment Request noting that in the context of the Payment Request the Ministry may elect to pay the Recipient for certain Eligible Costs that are the subject of the Payment Request and withhold payment for other Eligible Costs that the Ministry disputes;
(d) if the Ministry is not satisfied that the Recipient has applied Co-Funding in accordance with clause 2(a)(ii) of this Agreement;
(e) if payment will result in the Funding exceeding the "Total Maximum Amount Payable" ;
(f) while there are one or more Termination Event(s);
(g) if this Agreement has expired or been terminated; and/or
(h) while the Recipient is in breach of this Agreement.
1.5 Subject to the terms of this Agreement, the Ministry must pay each valid Payment Request by no later than the 20th day of the month after the month the Payment Request is dated, and if such day is not a Business Day, on the next Business Day.
If specified at item 11 of the Key Details, the Recipient must:
(a) ensure that during the term of this Agreement the Co-Funding:
(i) is and remains secured and available to the Recipient to be applied towards the Project on the same terms and conditions approved by the Ministry; and
(ii) is applied to Eligible Costs as set out in the Key Details; and
(b) immediately notify the Ministry if it becomes aware of any circumstances that may result in the Co-Funding (or any part of the Co-Funding) not being secured and available to the Recipient to be applied towards the Project.
3 RECIPIENT’S RESPONSIBILITIES Standards and compliance with laws
3.1 The Recipient must undertake the Project as described in this Agreement.
3.2 In undertaking the Project, the Recipient must comply with all applicable laws, regulations, rules and professional codes of conduct or practice.
Project Deliverables, Key Personnel, Contractors and the Project
3.3 The Recipient must ensure that the Project Deliverables and the Project are carried out:
(a) promptly with due diligence, care and skill, and in a manner that meets or exceeds Best Industry Practice;
(b) by appropriately trained, qualified, experienced and supervised persons; and
(c) in accordance with any directions of the Ministry, notified by the Ministry in writing from time to time.
3.4 The Recipient must ensure that the Project Deliverables are completed by the relevant “Completion Date” specified in the Key Details.
3.5 The Recipient must ensure that the Key Personnel undertake their respective roles in connection with the Project as specified in the Key Details, except as otherwise approved in writing by the Ministry. If any Key Personnel become unavailable to
perform their role, the Recipient must promptly arrange replacement Key Personnel acceptable to the Ministry.
3.6 The Recipient may not contract the delivery of the Project or any of its obligations under this Agreement except where:
(a) it has the Ministry’s prior written approval (which may be given on any conditions specified by the Ministry);
(b) the contractors are named as “Approved Contractors” in respect of particular roles in the Key Details; or
(c) the subcontract is for less than $50,000.00.
3.7 The Recipient is responsible for the acts and omissions of any contractors.
3.8 The Recipient must ensure (and must procure that the head contractor when engaging with any other contractor ensures) that all agreements it enters into with contractors or any other party in connection with the Project are on an “arm’s length” basis, provide value-for-money and do not give rise to any Conflict of Interest. The Recipient must provide the Ministry with reasonable evidence of compliance with this clause 3.8 in response to any request by the Ministry from time to time.
3.9 The Recipient must provide the Ministry with the reports (if any) specified in the Key Details, in accordance with the timeframes and reporting requirements set out in the Key Details.
3.10 The Recipient must provide the Ministry with any other information about the Project requested by the Ministry within the timeframe set out in the request.
3.11 The Recipient must promptly notify the Ministry if:
(a) the Recipient (or any of its personnel or contractors) becomes aware of, or subject to, a Conflict of Interest;
(b) the Recipient becomes aware of any matter that could reasonably be expected to have an adverse effect on the Project, or result in a Termination Event or a breach of any term of this Agreement by the Recipient.
3.12 The Recipient must not at any time do anything that could reasonably be expected to have an adverse effect on the reputation, good standing or goodwill of the Ministry. The Recipient must keep the Ministry informed of any matter known to the Recipient which could reasonably be expected to have such an effect.
Funding, records and auditors
3.13 The Recipient must receive and manage all Funding in accordance with good financial management and accounting practices and to a high standard that demonstrates appropriate use of public funds.
3.14 The Recipient must keep full and accurate records (including accounting records) of the Project, and retain them for at least 7 years after the last payment of Funding under this Agreement. The Recipient must permit the Ministry (or any auditor
nominated by the Ministry) to inspect all records relating to the Project and must allow the Ministry and/or the auditor access to the Recipient's premises, systems and personnel for the purposes of this inspection.
3.15 If the Recipient uses the Funding to purchase or develop any Qualifying Capital Asset and, at any point during the term of this Agreement or during the 20 years after the End Date, either:
(a) the Recipient sells, disposes or transfers the Qualifying Capital Asset, without the Ministry’s prior written consent; or
(b) the Qualifying Capital Asset will no longer be used for the purpose intended by the Ministry at the time this Agreement was entered into,
then the Recipient must immediately repay to the Ministry an amount equal to the amount of Funding used by the Recipient in the purchase or development of the Qualifying Capital Asset, as determined by the Ministry.
3.16 The Recipient must effect and maintain insurance that is adequate to cover its obligations under this Agreement, plus any other insurance specified in the Key Details. The Recipient must, on request, provide the Ministry with evidence of its insurance cover required under this clause.
Health and Safety
3.17 Without limiting its other obligations under this Agreement, the Recipient must:
(a) consult, cooperate and coordinate with the Ministry to the extent required by the Ministry to ensure that the Ministry and the Recipient will each comply with their respective obligations under the Health and Safety at Work Act 2015 as they relate to this Agreement and the Project;
(b) perform its, and ensure that the contractors perform their, obligations under this Agreement and the Project (as applicable) in compliance with its and their obligations under the Health and Safety at Work Act 2015;
(c) comply with all directions of the Ministry relating to health, safety, and security; and
(d) report any health and safety incident, injury or near miss, or any notice issued under the Health and Safety at Work Act 2015, to the Ministry to the extent that it relates to, or affects, this Agreement or the Project.
4 PROJECT GOVERNANCE
4.1 If advised in writing by the Ministry the Recipient must:
(a) provide reasonable notice to the Ministry of all Project management group meetings and Project governance group meetings; and
(b) copies of all documents and notices to be tabled at the Project management group meetings and Project governance group meetings to the Ministry no later than a
reasonable period prior to the meetings, and the minutes of those meetings within a reasonable period after each meeting
4.2 The Ministry may appoint observers who will be entitled to attend and speak at all Project management group meetings and Project governance group meetings (but will not be entitled to vote on any matter at those meetings).
5 INTELLECTUAL PROPERTY
5.1 The Ministry acknowledges that the Recipient and its licensors own all pre-existing intellectual property which they contribute to the Project, and all new intellectual property which they create in the course of the Project.
5.2 The Recipient grants an irrevocable, perpetual, royalty-free, sub-licensable licence to the Ministry to use all reports, documents, information and other materials created or provided by the Recipient to the Ministry under or in connection with the Project and this Agreement.
5.3 The Recipient warrants that it has obtained (or will obtain, prior to creation of each relevant work) all rights and permissions necessary to enable the grant and exercise of the licence in clause 5.2 without infringing the intellectual property rights of any third party.
6 TERM AND TERMINATION
6.1 This Agreement will be effective on and from the Commencement Date, which will be the latest to occur of:
(a) the date this Agreement has been signed by both parties and
(b) the date on which the Ministry has provided written notice to the Recipient that the Conditions Precedent specified in the Key Details, if any, have either been satisfied (in the opinion of the Ministry) or waived by the Ministry.
6.2 This Agreement will remain in force until the End Date, unless terminated in accordance with this Agreement (the Term).
6.3 The Ministry can terminate this Agreement with immediate effect, by giving notice to the Recipient, at any time while:
(a) the Ministry reasonably considers that the Recipient has become or is likely to become, insolvent or bankrupt;
(b) the Recipient is subject to the appointment of a liquidator, receiver, manager or similar person in respect of any of its assets;
(c) the Recipient has ceased to carry on its operations or business (or a material part of them) in New Zealand; or
(d) any one or more of the follow events or circumstances remains unremedied:
(i) the Recipient is materially in breach of any obligation, or a condition or warranty, under this Agreement;
(ii) the Recipient abandons the Project;
(iii) the Recipient has provided the Ministry with information in connection with or under this Agreement that (whether intentionally or not) is materially incorrect or misleading, and/or omits material information;
(iv) the Ministry reasonably considers that this Agreement or the Project has caused, or may cause, the Ministry and/or the New Zealand Government to breach any legal obligations (including its international trade obligations);
(v) the Recipient is involved in any intentional or reckless conduct which, in the opinion of the Ministry, has damaged or could damage the reputation, good standing or goodwill of the Ministry, or is involved in any material misrepresentation or any fraud;
(vi) the Recipient (or any of its personnel or contractors) is subject to a Conflict of Interest which cannot be managed to the Ministry's satisfaction; or
(vii) any change in law, regulations, government policy or other circumstances materially affects the Ministry's ability to perform its obligations under this Agreement.
6.4 However, where the Ministry considers that a Termination Event set out in clause 6.3(d) can be remedied, the Ministry must give notice to the Recipient requesting a remedy, and must not exercise its right of termination unless the relevant event remains unremedied for at least 14 days (or any longer period agreed with the Recipient) after that notice has been provided by the Ministry.
6.5 The Ministry may recover Funding from the Recipient as follows:
(a) Misspent Funding. At any time the Ministry may recover the amount of any Funding that has been spent or used other than in accordance with this Agreement, together with interest on all such amounts calculated at 10% per annum from the date of the misspending to the date the money is repaid.
(b) Uncommitted Funding. On expiry or termination of this Agreement, the Ministry may recover any Funding paid to the Recipient, which the Recipient:
(i) has not spent or contractually committed to spend in accordance with this Agreement; or
(ii) has spent or contractually committed to spend in accordance with this Agreement but which the Recipient can have refunded or released from that commitment, provided the Recipient must use all reasonable endeavours to obtain such refund or release.
(c) Co-Funding not provided. If Co-Funding is required as set out in the Key Details, on expiry or termination of this Agreement, if the Co-Funding has not been used for the Project, the Ministry may recover an amount that represents the same proportion of the Funding as the proportion of Co-Funding that has not been used is of the total Co-Funding.
(d) Project abandoned. If the Recipient has abandoned the Project or stated an intention to abandon the Project, and does not within 10 Business Days of being requested to do so by the Ministry demonstrate to the Ministry's satisfaction that the Recipient will proceed with the Project, the Ministry may recover an amount up to the total value of the Funding, provided the Ministry may not recover under this
subclause if the Recipient satisfies the Ministry that it acted on reasonable grounds in deciding to abandon the Project.
(e) Excess Funding. On expiry or termination of this Agreement, where the total Funding paid under this Agreement and any other money received by the Recipient to carry out the Project exceeds the funding required to perform the Project, the Recipient must upon request refund to the Ministry the excess amount. The Recipient is not required to refund, under this clause 6.5(e), any amount that exceeds the total amount of Funding.
6.6 Clauses 1.4, 3.1, 3.13, 3.14, 3.15,5, 6, 7, 8, 9, 10, 11, 12 and 13 survive expiry or termination of this Agreement, along with any other parts of this Agreement necessary to give effect to those provisions. Expiry or termination of this Agreement does not affect any accrued rights, including any rights in respect of a breach of this Agreement or Termination Event that occurred before expiry or termination.
7.1 The Recipient warrants that, in the course of its activities in connection with the Project, it will not infringe any intellectual property or other rights of any third party.
7.2 The Recipient warrants that, as at the date of this Agreement:
(a) It has full power and authority to enter into and perform its obligations under this Agreement which, when executed, will constitute binding obligations on it in accordance with this Agreement's terms;
(b) all information and representations disclosed or made to the Ministry by the Recipient in connection with this Agreement are true and correct, do not omit any material matter, and are not likely to mislead or deceive the Ministry as to any material matter;
(c) it has disclosed to the Ministry all matters known to the Recipient (relating to Project, the Recipient, its contractors or its personnel) that could reasonably be expected to have an adverse effect on the reputation, good standing or goodwill of the Ministry; and
(d) it is not aware of any material information that has not been disclosed to the Ministry which may, if disclosed, materially adversely affect the decision of the Ministry whether to provide the Funding.
7.3 The Recipient acknowledges that the Ministry has entered into this Agreement in reliance on these warranties.
7.4 The Recipient acknowledges and agrees that the Ministry has made no warranty or representation that any funding or financial support is or will be available to the Recipient in respect of the Project other than the Funding.
8.1 The maximum liability of the Ministry under or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, is limited to the total amount of Funding paid or payable under this Agreement.
8.2 The Ministry is not liable for any claim under or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, where such claim is or relates to any loss of profit, loss of revenue, loss of use, loss of reputation, loss of goodwill, loss of opportunity (in each case whether direct, indirect or consequential) or any other indirect, consequential or incidental loss or damages of any kind whatsoever.
9.1 Subject to clause 9.2 and 9.3, each party must keep the other party’s Confidential Information in confidence, and must use or disclose that Confidential Information only to the extent necessary to perform its obligations, and/or take the intended benefit of its rights, under this Agreement. However, this will not prohibit:
(a) either party from using or disclosing any information with the written prior consent of the other party;
(b) use or disclosure of information that has become generally known to the public other than through a breach of this Agreement;
(c) either party from disclosing information to its personnel or contractors with a need to know, so long as the relevant personnel and contractors use the information solely to enable that party to perform its obligations and/or take the intended benefit of its rights under this Agreement, and so long as they are informed of the confidential nature of the information and in the case of the Recipient, the Recipient receives an acknowledgement from its personnel or contractors that they acknowledge, and must comply with, the confidentiality obligations in this Agreement as if they were party to it;
(d) disclosure required by any law, or any compulsory order or requirement issued pursuant to any law; or
(e) the Ministry from using or disclosing to any party any documents, reports or information received in relation to this Agreement, provided that prior to any such disclosure the Ministry removes all information that is commercially sensitive to the Recipient from the relevant work.
9.2 The Recipient acknowledges and agrees that nothing in this Agreement restricts the Ministry’s ability to:
(a) discuss, and provide all information in respect of, any matters concerning the Recipient, the Project or this Agreement with any Minister of the Crown, any other government agency or any of their respective advisors;
(b) meet its obligations under any constitutional or parliamentary convention (or other obligation at law) of or in relation to the New Zealand Parliament, the New Zealand House of Representatives or any of its Committees, any Minister of the Crown, or the New Zealand Auditor-General, including any obligations under the Cabinet Manual including the "no surprises" principle; and
(c) publicise and report on the awarding of the Funding, including the Recipient's and any of its subcontractor's names, the amount and duration of the Funding and a brief description of the Project, on websites; in media releases; general announcements and annual reports.
9.3 The Recipient acknowledges that:
(a) the contents of this Agreement; and
(b) information provided to the Ministry
may be official information in terms of the Official Information Act 1982 and, in line with the purpose and principles of the Official Information Act 1982, this Agreement and such information may be released to the public unless there is good reason, in terms of the Official Information Act 1982 to withhold it.
10 MEDIA AND COMMUNICATIONS
10.1 Before making any media statements or press releases (including social media posts) regarding this Agreement and/or the Ministry’s involvement with the Project, the Recipient will consult with the Ministry, and will obtain the Ministry’s prior approval to any such statements or releases.
10.2 The Recipient will refer any enquiries from the media or any other person about the terms or performance of this Agreement to the Ministry’s Contact Person.
10.4 If requested by the Ministry, the Recipient will establish or erect temporary and/or permanent signage (which may be in the form of a plaque) at the site of the Project acknowledging the Ministry as a source of funding for the Project. The Ministry may provide such signage and the Ministry will consult with the Recipient in respect of a suitable location for such signage.
10.5 The Recipient does not have the right to enter into any commitment, contract or agreement on behalf of the Ministry or any associated body, or to make any public statement or comment on behalf of the Ministry.
11.1 In the event of any dispute, controversy or claim arising out of or in connection with this Agreement, or in relation to any question regarding its existence, breach, termination or invalidity (in each case, a Dispute), either party may give written notice to the other specifying the nature of the Dispute and requesting discussions under this clause 11. As soon as reasonably practicable following receipt of a Dispute Notice, the parties must meet (in person, or by audio or video conference) and endeavour to resolve the Dispute by discussion, negotiation and agreement.
11.2 A party must not commence any proceedings in connection with a Dispute unless at least 40 days have elapsed since the issue of a corresponding Dispute Notice, and that party has used reasonable endeavours to comply with this clause 11. However,
nothing in this clause will prevent either party from seeking urgent interim relief from a court (or other tribunal) of competent jurisdiction.
12 CONTACT PERSONS
12.1 All matters or enquiries regarding this Agreement must be directed to each party's Contact Person (set out in the Key Details).
12.2 Each party may from time to time change the person designated as its Contact Person on 10 Business Days' written notice to the other Party.
13.1 Each notice or other communication given under this Agreement (each a notice) must be in writing and delivered personally or sent by post or email to the address of the relevant party set out in the Key Details or to any other address from time to time designated for that purpose by at least 10 Business Days’ prior written notice to the other party. A notice under this Agreement is deemed to be received if:
(a) Delivery: delivered personally, when delivered;
(b) Post: posted, 5 Business Days after posting or, in the case of international post, 7 Business Days after posting; and
(c) Email: sent by email:
(i) If sent between the hours of 9am and 5pm (local time) on a Business Day, at the time of transmission; or
(ii) If subclause (i) does not apply, at 9am (local time) on the Business Day most immediately after the time of sending,
provided that an email is not deemed received unless (if receipt is disputed) the party giving notice produces a printed copy of the email which evidences that the email was sent to the email address of the party given notice.
13.2 The Recipient agrees to execute and deliver any documents and to do all things as may be required by the Ministry to obtain the full benefit of this Agreement according to its true intent.
13.3 No legal partnership, employer-employee, principal-agent or joint venture relationship is created or evidenced by this Agreement.
13.4 This Agreement constitutes the sole and entire understanding with respect to the subject matter hereof and supersedes all prior discussions, representations and understandings, written or oral.
13.5 No amendment to this Agreement will be effective unless agreed in writing and signed by both parties.
13.6 The Recipient may not assign or transfer any of its contractual rights or obligations under this Agreement, except with the Ministry's prior written approval.
13.7 The Ministry may assign or transfer any of its contractual rights or obligations under this Agreement without the Recipient's prior approval. The Ministry may at any time
disclose to a proposed assignee or transferee any information which relates to, or was provided in connection with, the Project or this Agreement.
13.8 No failure, delay or indulgence by any party in exercising any power or right conferred on that party by this Agreement shall operate as a waiver. A single exercise of any of those powers or rights does not preclude further exercises of those powers or rights or the exercise of any other powers or rights.
13.9 The exercise by a party of any express right set out in this Agreement is without prejudice to any other rights, powers or remedies available to a party in contract, at law or in equity, including any rights, powers or remedies which would be available if the express rights were not set out in this Agreement.
13.10 This Agreement is not intended to confer any benefit on or create any obligation enforceable at the suit of any person not a party to this Agreement.
13.11 Any provision of this Agreement that is invalid or unenforceable will be deemed deleted, and will not affect the other provisions of this Agreement, all of which remain in force to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
13.12 This Agreement is to be governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
13.13 This Agreement may be executed in any number of counterparts (including scanned and emailed copies). So long as each party has received a counterpart signed by each of the other parties, the counterparts together shall constitute a binding and enforceable agreement.
END OF PART 2
PART 3: DEFINITIONS AND CONSTRUCTION
In this Agreement, unless the context requires otherwise:
Agreement means this agreement including Parts 1, 2 and 3 and Schedule 1 (and any other annexures or attachments).
Approved Contractor means an “Approved Contractor” specified in the Key Details.
Best Industry Practice means that degree of skill, care and foresight and operating practice that would reasonably and ordinarily be expected of a skilled and competent supplier of services engaged in the same type of undertaking as that of the Recipient or any contractors (as applicable) under the same or similar circumstances as those contemplated by this Agreement.
Business Day means any day other than a Saturday, Sunday or public holiday within the meaning of section 44 of the Holidays Act 2003.
Co-Funding means the “Co-Funding” (if any) or any part of the Co-Funding (as the context requires), described in the Key Details.
Commencement Date has the meaning given in clause 6.1 of Part 2.
Completion Date is the date that the relevant Project Deliverable is to be completed by the Recipient, described in the Key Details, and includes any amendment to the date which may be agreed in writing (including by email but only when the Ministry’s Contact Person expressly confirms in writing that they have received approval of the change from the correct Ministry delegation holder) between the parties from time to time.
Confidential Information of a party (Owner), means any information in the possession or control of another party (Holder) that:
(a) was originally acquired by the Holder in connection with this Agreement through disclosures made by or at the request of the Owner; and/or
(b) was originally acquired by the Holder in connection with this Agreement through any access to, or viewing, inspection or evaluation of, the premises, facilities, documents, systems or other assets owned or controlled by the Owner; and/or
(c) is derived from information of a kind described in paragraph (a) or (b) above;
but excludes any information which the Holder can show:
(d) was lawfully acquired by the Holder, entirely independently of its activities in connection with this Agreement, and is free of any other obligation of confidence owed to the Owner; and/or
(e) has been independently developed by the Holder without reference to the Owner’s Confidential Information, and without breaching any other obligation of confidence owed to the Owner.
Notwithstanding the foregoing, the terms of this Agreement are Confidential Information of which each Party is both an Owner and a Holder.
Conflict of Interest means any matter, circumstance, interest or activity of the Recipient, its personnel or contractors, or any other person with whom the Recipient has a relationship that:
(a) conflicts with:
(i) the obligations of the Recipient (or its personnel or contractors) to the Ministry under this Agreement; or
(ii) the interests of the Recipient in relation to this Agreement and/or the procuring of the Project; or
(b) otherwise impairs or might appear to impair the ability of the Recipient (or any of its personnel or contractors) to diligently and independently carry out
the Project in accordance with this Agreement.
Eligible Costs means the actual costs reasonably incurred by the Recipient:
(a) on or after the Funding Start Date and no later than the End Date;
(b) in good faith for the purpose of carrying out the Project or for purposes incidental to the Project, including all internal costs, disbursements and expenses incurred by the Recipient for such purposes (and to the extent the Recipient is carrying out any other activities) reasonably and proportionately allocated towards such purposes; and
(c) to the extent that the expenditure relates to work performed by parties not at ”arm’s length”, that expenditure is assessed at reasonable market value, and contains no unacceptable overhead and no element of “in group profit”.
End Date means the “End Date” specified in the Key Details.
Funding means the funding or any part of the funding (as the context requires) payable by the Ministry to the Recipient in accordance with the terms of this Agreement, as described in the Key Details.
Funding Start Date means the “Funding Start Date” specified in the Key Details.
Key Details means Part 1 of this Agreement.
Key Personnel means the “Key Personnel” specified in the Key Details.
Payment Request means a request submitted to the Ministry by the Recipient seeking payment of Funding substantially in the form set out in the Schedule to this Agreement.
Project means the “Project” described in the Key Details.
Project Deliverable means a deliverable to be provided by the Recipient to the Ministry, as set out in the Key Details.
Qualifying Capital Asset means a capital asset (as determined in accordance with generally accepted accounting practice, as defined in the Financial Reporting Act 2013) purchased or developed by the Recipient using no less than $50,000 of Funding.
Recipient means the Recipient specified in the Key Details.
Termination Event means any one or more of the events or circumstances set out in clause 6.3.
In the construction of this Agreement, unless the context requires otherwise:
Currency: a reference to any monetary amount is to New Zealand currency;
Defined Terms: words or phrases appearing in this Agreement with capitalised initial letters are defined terms and have the meanings given to them in this Agreement;
Documents: a reference to any document, including this Agreement, includes a reference to that document as amended or replaced from time to time;
Inclusions: a reference to “includes” is a reference to “includes without limitation”, and “include”, “included” and “including” have corresponding meanings;
Joint and Several Liability: any provision of this Agreement to be performed or observed by two or more persons binds those persons jointly and severally;
Parties: a reference to a party to this Agreement or any other document includes that party's personal representatives/successors and permitted assigns;
Person: a reference to a person includes a corporation sole and also a body of persons, whether corporate or unincorporate;
Precedence: if there is any conflict between the different parts of this Agreement, then unless specifically stated otherwise, Part 2 will prevail over the Key Details, and the Key Details will prevail over any Attachments;
Related Terms: where a word or expression is defined in this Agreement, other parts of speech and grammatical forms of that word or expression have corresponding meanings;
Statutes and Regulations: a reference to an enactment or any regulations is a reference to that enactment or those regulations as amended, or to any enactment or regulations substituted for that enactment or those regulations;
Writing: a reference to “written” or “in writing” includes email and any commonly used electronic document format such as
.DOC or .PDF.
END OF PART 3
SCHEDULE: PAYMENT REQUEST
To: MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
PAYMENT REQUEST NO. [•]
1. We refer to the Funding Agreement dated [•] between [•] as recipient (Recipient) and The Sovereign in right of New Zealand, acting by and through the Chief Executive of the Ministry of Business, Innovation and Employment (Ministry) (the Agreement). Terms defined in the Agreement have the same meaning in this Payment Request.
2. This is a Payment Request for the purpose of clause 1.3 of the Agreement.
3. The Project Deliverables which are the subject of this Payment Request are [insert description of Project Deliverables].
4. The amount of Funding requested is $[•] plus GST if any.
5. The Funding requested in this Payment Request is required to meet the Eligible Costs.
6. Invoices/statements and accounts evidencing the Eligible Costs incurred are attached.
*Note that for any Eligible Costs that are more than $1,000 (on an individual basis or when grouped by supplier or subject matter) a copy of the original invoices received from third parties in relation to the Eligible Costs must be provided.
7. That each of the items referred to in paragraph 5 are Eligible Costs for the purpose of the Agreement have been paid or are currently due and payable.
8. [Co-Funding must be used to meet the following Eligible Costs that have been incurred by us:
[include breakdown description of Eligible Costs that Co-Funding must meet]
9. [Include valid GST invoice if relevant].
10. We confirm that:
(a) no Termination Event is subsisting; and
(b) each of the warranties set out in the Agreement are correct as at the date of this Payment Request.
Except to the extent otherwise agreed in writing by the Ministry, all those items forming part of the Eligible Costs identified in any previous Payment Request as due or becoming due and payable, have been paid in full.