ISARP compulsory conditions

Page last updated: 29 October 2013

ISARP specific conditions to be included as an annexure to the PFA.

1 Acknowledgment and publicity

1.1 You must acknowledge our financial and other support you have received from the Australian Government in the following manner:

"This Activity is supported by the Australian Government through the Indigenous Sport and Active Recreation Program through the Office for Sport.

2 Budget

(This condition of the ISARP Specific Conditions replaces Item D of the Schedule.)

2.1 Subject to ISARP Special Condition 2.2, you must only spend the Funding in accordance with the budget in Annexure C.

2.2 Within the overall budget stipulated in the Schedule, you may vary the Funding to meet your needs in carrying out the Activity as follows:

  1. Without written approval from us you may reallocate expenditure between the budget line items set out in Annexure C by amounts totalling in aggregate up to ten percent (10%) of total Funding;
  2. Once the aggregate of the changes to individual budget line items exceeds ten percent (10%) of the total Funding, our written approval must be obtained before any further changes can be made.

3 Assets

(This condition of the ISARP Specific Conditions replaces clause 13 of the Australian Government Terms and Conditions—Standard Funding Agreement).

3.1 Apart from those detailed in the Schedule you must not use the funding to acquire or create any Asset, without our written approval.  Approval may be given subject to any conditions we impose, which conditions may relate to the full market value of the Asset.

3.2 You own any Asset acquired by you with the Funding unless:

  1. the Asset is listed in the Schedule as being owned by us or a third party, or the Parties subsequently agree that the Asset is owned by us or a third party, or
  2. we direct you to transfer all or any of the Assets under condition 3.10 of the ISARP Specific Conditions.

3.3 If we or a third party own the Asset conditions 3.7, 3.10 and 3.11 of the ISARP Specific Conditions do not apply. If you lease the Asset then you must ensure that the terms of the lease are consistent with this condition 3 of the ISARP Specific Conditions except for conditions 3.7, 3.8, 3.10 and 3.11 of the ISARP Specific Conditions.

3.4 During the term of the Agreement you must use any Asset in accordance with this Agreement and for the purposes of the Activity.

3.5 You may only use any Asset acquired with funding provided by the Australian Government according to the terms and arrangements under which you received that funding.

3.6 You must:

  1. not dispose of, transfer, lease, license, encumber, part with possession of, or otherwise deal in any way with an Asset or any part of it without having first obtained our written consent, which may be provided subject to any conditions specified in our consent notice (including conditions that relate to the full current value of the Asset);
  2. secure and safeguard all Assets against loss, theft, damage or unauthorised use;
  3. maintain all Assets in good working order;
  4. maintain all insurances to their full replacement value, noting our interest if applicable, and provide satisfactory evidence of this upon request from us;
  5. if required by law, maintain registration and licensing of all Assets;
  6. be fully responsible for, and bear all risks relating to, the use or disposal of all Assets;
  7. maintain an asset register which lists all Assets and provide a copy of this register upon request by us.

3.7 Where an Asset has been disposed of for consideration with or without our consent, the written down value of the asset must be paid to us or dealt with in accordance with our written directions, which may be issued at any time.

3.8 Any Assets lost, damaged or destroyed are to be reinstated or replaced by you and condition 3 of the ISARP Specific Conditions continues to apply to such Assets.

3.9 All proceeds of insurance are deemed to form part of the funding and you will notify us of amounts and related Assets should you receive any such payments.

3.10 At our sole discretion and directed to you in writing, we may require you to deal with any Asset upon completion of the Activity or earlier termination.  Where any of the following applies:

  1. you are in breach of this Agreement
  2. we cease to provide Funding to you for any reason
  3. you cease to deliver the Activity
  4. you have ceased to use an Asset to deliver the Activity, or we are of the opinion that an Asset is no longer suitable to be used for the Activity or the purpose for which it was approved under this Agreement
  5. following the end of the term of the Agreement or earlier termination of this Agreement
  6. if any of the matters in clause 23.1(a) to (g) of the Australian Government Terms and Conditions—Standard Funding Agreement occurs we may, in our sole discretion, give you a written direction to:
    1. transfer the Asset to us or our nominee
    2. repay to us some or all of the Funding that was used to acquire, maintain, repair or which has otherwise contributed to the Asset, and/or
    3. sell the Asset to a bona fide purchaser for market value, subject to any conditions we specify in the direction.

3.11 If you fail to repay any moneys properly claimed under clause 3.10, you must pay interest on the amount claimed from the date it was due for the period it remains unpaid and the amount claimed and interest owed under this clause will be recoverable by us as a debt due to us by you.  Interest will be calculated at the rate specified in clause 11.2 of the Australian Government Terms and Conditions—Standard Funding Agreement.

3.12 Our approvals under conditions 3.1 and or 3.6 of the ISARP Specific Conditions will not be unreasonably withheld.  A decision as to whether an approval will be provided will be made within a reasonable time of the request.

3.13 Paragraph 3.6(a) of the ISARP Specific Conditions and conditions 3.7 and 3.11 of the ISARP Specific Conditions do not apply to Assets which are trading stock of a commercial activity.

3.14 You must provide us with security over any Asset, in whatever form we require, and pay all stamp duties and reasonable legal costs of, and incidental to, such security upon our request.

3.15 The operation of this condition 3 of the ISARP Specific Conditions survives the expiration or earlier termination of the term of this Agreement.

4 Delay

4.1 You must take all reasonable steps to minimise delay in completion of the Activity.

4.2 If you become aware that you will be delayed in progressing or completing the Activity you must immediately notify us in writing of the cause and nature of the delay.  You are to detail in the notice the steps you will take to contain the delay.

4.3 On receipt of a notice of delay, we may at our sole discretion:

  1. notify you in writing of a period of extension to complete the Activity and vary this Agreement accordingly
  2. notify you in writing of reduction in the scope of the Activity and any adjustment to the Funds for you to complete the reduced Activity and vary this Agreement accordingly, or
  3. terminate this Agreement under clause 23 of the Australian Government Terms and Conditions—Standard Funding Agreement or take such other steps as are available under this Agreement.

4.4 Unless we take action under condition 4.3 of the ISARP Specific Conditions, you are required to comply with the time frame for progressing and completing the Activity.

5 Corporate governance

5.1 You must provide a copy of your Constitution to us upon request.

5.2 You must inform us immediately whenever there is a change in your Constitution, structure, management or operations which could reasonably be expected to affect your eligibility for the Funding or have an adverse effect on your ability to comply with your obligations under this Funding Agreement.

5.3 You must not employ, engage or elect any person who would have a role in your management or financial administration if:

  1. the person is an undischarged bankrupt
  1. there is in operation a composition, deed of arrangement or deed of assignment with the persons creditors under the law relating to bankruptcy
  1. the person has suffered final judgment for a debt and the judgment has not been satisfied
  1. within the last five years the person
    1. has been convicted of an offence or offences against a Commonwealth, State or Territory law involving dishonesty
    2. has been released from prison after having been imprisoned for the offence or offences involving dishonesty, or
    3. is or was a Director or occupied an influential position in the management or financial administration of an organisation that had failed to comply with funding (including grant) requirements of the Australian Government, ATSIS or its predecessors, or
  1. the person is otherwise prohibited from being a member or Director or employee or responsible officer of your organisation under the relevant Local Government Act or any other legislation.

5.4 Where a person falls or is discovered as falling within any of paragraphs 5.3(a) to (e) of the ISARP Specific Conditions while employed or engaged by you, or after being elected as an officer of yours, you will be in breach of condition 5.3 of the ISARP Specific Conditions if you do not:

  1. transfer the person to a position which does not have a role in your management or financial administration, or
  2. terminate the employment or engagement of the person or remove the person from office, as the case may be.

5.5 If you advise us that you consider such termination action would be unlawful, unfair or otherwise contravene the Fair Work Act 2009, we will take our view into account in deciding what action to take as a result of the breach.

5.6 If you are registered under the Corporations Act 2001, and:

  1. you apply to come under;
  2. you receive a notice requiring you to show cause why you should not come under
  3. you receive a notice or an application from any other person for you to come under
  4. an order has been made for the purpose of placing you under; or
  5. you have otherwise come under, one of the forms of external administration referred to in Chapter 5 of the Corporations Act 2001, you must inform us in writing within five Business Days of the date of the making or receipt of such a notice or application or the making of such an order.

5.7 If you are registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006, and:

  1. you apply to come under
  2. you receive a notice requiring you to show cause why you should   not come under
  3. you receive a notice or an application from any other person for you to come under
  4. an order has been made for the purpose of placing you under, or
  5. you have otherwise come under,
    one of the forms of external administration referred to in Chapter 11 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006, you must inform us in writing within five Business Days of the date of the making or receipt of such a notice or application or the making of such an order.

6 Subcontractors

6.1 We may, by written notice, revoke our approval to subcontract, at any time, on any reasonable ground.

6.2 Our written notice may direct that you must, as soon as practicable (or as we may direct in the notice):

  1. cease using that or any subcontractor to perform any of your obligations, or
  2. replace the subcontractor.

7 Funding controller

7.1 If, in our opinion, you are unable to perform the Activity, complete the Activity within the term of the Agreement, satisfactorily manage the Funding or are in breach of your obligations under this Agreement, we may, at our sole discretion, without prejudice to any other right of action:

  1. vary the Funding
  2. vary the budget set out in Annexure C
  3. vary the objectives set out in the Schedule
  4. vary the periodic financial Reporting requirements
  5. vary the Activity performance Reporting requirements
  6. take any of the steps described in condition 4.3 of the ISARP Specific Conditions or subclause 8.1 of the Australian Government  Terms and Conditions—Standard Funding Agreement, or
  7. appoint a Funding Controller.

7.2 The functions and term of appointment of any Funding Controller will be determined by us in our absolute discretion.

7.3 We may seek to recover from you our costs and fees associated with the appointment of and provision of services by any Funding Controller to you.

8 Procurement for Activity

8.1 You agree that in the awarding of contracts to supply goods or services for the Activity you will ensure that the contract specifications do not bias or predetermine the outcome, by placing unreasonable restrictions or qualifications on the prospective tenders.

8.2 You agree that where the budget in the Schedule covers the acquisition of land, assets or services, you will be able to demonstrate that you have obtained value for money in relation to those purchases.

8.3 We will release Funding for the acquisition of the Asset or service over $10,000 GST inclusive only when you have provided a written statement to our satisfaction detailing:

  1. how you will be obtaining value for money for the provision of assets or services, and
  2. any relationship or interest (whether direct or indirect) you have with the preferred supplier or subcontractor.

9 Withholding payment

(This condition is in addition to Clause 8 of the 2009 and 2012 Terms and Conditions—Standard Funding Agreement.)

9.1 The Department will consider not releasing funds to a funding recipient if the recipient is in breach of any of their obligations under a Funding Agreement with the Australian Government.