HuttCity_TeAwaKairangi_BLACK_AGENDA_COVER

 

 

 

18 August 2020

 

 

 

Order Paper for Council meeting to be held in the

Council Chambers, 2nd Floor, 30 Laings Road, Lower Hutt,

on:

 

 

 

Tuesday 25 August 2020 commencing at 4pm

 

 

 

 

Membership

 

 

Mayor C Barry (Chair)

Deputy Mayor T Lewis

Cr D Bassett

Cr J Briggs

Cr K Brown

Cr B Dyer

Cr S Edwards

Cr D Hislop

Cr C Milne

Cr A Mitchell

Cr S Rasheed

Cr N Shaw

Cr L Sutton

 

 

 

 

 

For the dates and times of Council Meetings please visit www.huttcity.govt.nz

 

Have your say

You can speak under public comment to items on the agenda to the Mayor and Councillors at this meeting. Please let us know by noon the working day before the meeting. You can do this by emailing DemocraticServicesTeam@huttcity.govt.nz or calling the Democratic Services Team on 04 570 6666 | 0800 HUTT CITY


HuttCity_TeAwaKairangi_SCREEN_MEDRES
 

 

 

 


COUNCIL

 

Membership:

13 

Meeting Cycle:

Council meets on a six weekly basis (Extraordinary Meetings can be called following a resolution of Council; or on the requisition of the Chair or one third of the total membership of Council)

POWER TO (BEING A POWER THAT IS NOT CAPABLE OF BEING DELEGATED)1:

        Make a rate.

       Make bylaws.

       Borrow money other than in accordance with the Long Term Plan (LTP).

        Purchase or dispose of assets other than in accordance with the LTP.

        Purchase or dispose of Council land and property other than in accordance with the LTP.

        Adopt the LTP, Annual Plan and Annual Report.

        Adopt policies required to be adopted and consulted on under the Local Government Act 2002 in association with the LTP or developed for the purpose of the Local Governance Statement.

        Appoint the Chief Executive.

        Exercise any powers and duties conferred or imposed on the local authority by the Local Government Act 1974, the Public Works Act 1981, or the Resource Management Act 1991, that are unable to be delegated.

        Undertake all other actions which are by law not capable of being delegated.

        The power to adopt a Remuneration and Employment Policy for Council employees.

 

DECIDE ON:

Policy issues

       Adoption of all policy required by legislation.

       Adoption of strategies, and policies with a city-wide or strategic focus.

 

District Plan

       Approval to call for submissions on any Proposed District Plan, Plan Changes and Variations.

       Prior to public notification, approval of recommendations of District Plan Hearings Subcommittees on any Proposed Plan, Plan Changes (including private Plan Changes) and Variations, on the recommendation of the Regulatory Committee.

 

1       Work required prior to the making of any of these decisions may be delegated.

       The withdrawal of Plan Changes in accordance with clause 8D, Part 1, Schedule 1 of the Resource Management Act 1991.

       Approval, to make operative, District Plan and Plan Changes (in accordance with clause 17, Part 1, Schedule 1 of the Resource Management Act 1991).

       Acceptance, adoption or rejection of private Plan Changes.

 

Representation, electoral and governance matters

        The method of voting for the Triennial elections.

        Representation reviews.

        Council’s Code of Conduct for elected members

        Local Governance Statement.

        Elected Members’ Remuneration.

        The outcome of any extraordinary vacancies on Council.

        Any other matters for which a local authority decision is required under the Local Electoral Act 2001.

        Appointment and discharge of members of committees when not appointed by the Mayor.

        All matters identified in these Terms of Reference as delegated to Council Committees (or otherwise delegated by the Council) and oversee those delegations.

        Council‘s delegations to officers and community boards.

 

Delegations and employment of the Chief Executive

Review and negotiation of the contract, performance agreement and remuneration of the Chief Executive.

 

Meetings and committees

        Standing Orders for Council and its committees.

        Council’s annual meeting schedule.

 

Long Term and Annual Plans

        The adoption of the budgetary parameters for the LTP and Annual Plans.

        Determination of rating levels and policies required as part of the LTP.

        Adoption of Consultation Documents, proposed and final LTPs and proposed and final Annual Plans.

 

Council Controlled Organisations

        The establishment and disposal of any Council Controlled Organisation or Council Controlled Trading Organisation.

        Approval of annual Statements of Corporate Intent for Council Controlled Organisations and Council Controlled Trading Organisations.

 

Community Engagement and Advocacy

        Receive reports from the Council’s Advisory Groups.

        Monitor engagement with the city’s communities.

 

Operational Matters

        National Emergency Management Agency matters requiring Council’s  input.

        Road closing and road stopping matters.

        Approval of overseas travel for elected members.

        All other matters for which final authority is not delegated.

 

Appoint:

        The non-elected members of the Standing Committees, including extraordinary vacancies of non- elected representatives.

        The Directors of Council Controlled Organisations and Council Controlled Trading Organisations.

        Council’s nominee on any Trust.

        Council representatives on any outside organisations (where applicable and time permits, recommendations for the appointment may be sought from the appropriate Standing Committee and/or outside organisations).

        The Chief Executive of Hutt City Council.

        Council’s Electoral Officer, Principal Rural Fire Officer and any other appointments required by statute.

        The recipients of the annual Civic Honours awards.

 

    


HUTT CITY COUNCIL

 

Ordinary meeting to be held in the Council Chambers, 2nd Floor, 30 Laings Road, Lower Hutt on

 Tuesday 25 August 2020 commencing at 4pm.

 

ORDER PAPER

 

Public Business

 

1.       OPENING FORMALITIES - Karakia Timatanga 

Kia hora te marino

Kia whakapapa pounamu te moana

He huarahi mā tātou i te rangi nei

Aroha atu, aroha mai

Tātou i a tātou katoa

Hui e Tāiki e!

May peace be wide spread

May the sea be like greenstone

A pathway for us all this day

Let us show respect for each other

For one another

Bind us together!

 

2.       APOLOGIES 

3.       PUBLIC COMMENT

Generally up to 30 minutes is set aside for public comment (three minutes per speaker on items appearing on the agenda). Speakers may be asked questions on the matters they raise.      

4.       CONFLICT OF INTEREST DECLARATIONS

          Members are reminded of the need to be vigilant to stand aside from decision making when a conflict arises between their role as a member and any private or other external interest they might have.

5.       THREE WATERS REFORM: MEMORANDUM OF UNDERSTANDING  (20/921)

Report No. HCC2020/5/173 by the Strategic Advisor                                        7

Mayor’s Recommendation:

That the recommendations contained in the report be endorsed.

6.       community funding panel appointments  (20/896)

Report No. HCC2020/5/18 by the Contractor                                                   73

Mayor’s Recommendation:

That the recommendations contained in the report be discussed.

    

 

7.       QUESTIONS

With reference to section 32 of Standing Orders, before putting a question a member shall endeavour to obtain the information. Questions shall be concise and in writing and handed to the Chair prior to the commencement of the meeting.   

 

8.       CLOSING FORMALITIES - Karakia WHAKAMUTUNGA

 

Whakataka te hau ki te uru

Whakataka te hau ki te tonga

Kia mākinakina ki uta

Kia mātaratara ki tai

E hī ake ana te atakura

He tio, he huka, he hau hū

Tīhei mauri ora.

Cease the winds from the west
Cease the winds from the south
Let the breeze blow over the land
Let the breeze blow over the ocean
Let the red-tipped dawn come with a sharpened air. 
A touch of frost, a promise of a glorious day.

 

 

 

 

 

Kate Glanville

SENIOR DEMOCRACY ADVISOR

              


                                                                                       8                                                        25 August 2020

Hutt City Council

17 August 2020

 

 

 

File: (20/921)

 

 

 

 

Report no: HCC2020/5/173

 

Three Waters Reform: Memorandum of Understanding

 

Purpose of Report

1.    The report asks Council to:

-     Sign a Memorandum of Understanding (MoU) with the Crown, agreeing to participate in the initial stage of a central/local government three waters service delivery reform programme (Appendix 1);

-     Authorise the Chief Executive to enter into the Funding Agreement, to accept a grant from the Crown to spend on operating and capital expenditure relating to three waters infrastructure and service delivery (Appendix 2).

Recommendations

That Council:

(i)        notes that in July 2020, the Government announced an initial funding package of $761 million to provide a post COVID-19 stimulus to maintain and improve water networks infrastructure, and to support a three-year programme of reform of local government water services delivery arrangements;

(ii)       notes that initial funding will be made available to those councils that agree to participate in the initial stage of the reform programme, through a Memorandum of Understanding (MoU), Funding Agreement, and approved Delivery Plan;

(iii)      notes that this initial funding will be provided in two parts: a direct allocation to individual territorial authorities, and a regional allocation and that the participating individual authorities in each region will need to agree an approach to distributing the regional allocation;

(iv)      notes that the Regional Chief Executives recommend a preferred approach to the allocation of regional funding, being the same formula as was used to determine the direct allocations to territorial authorities once the Greater Wellington Regional Council has been allocated its share as owner of bulk water assets;

(v)       agrees to enter into the MoU (Refer Appendix 1) and the Funding Agreement (Refer Appendix 2) with the Crown;

(vi)      agrees to nominate the Chief Executive as the primary point of communication for the purposes of the MoU and reform programme;

(vii)     agrees to delegate decisions about the allocation of regional funding to the Chief Executive, with the understanding that this will be based upon the formula used to calculate the direct council allocations including an allocation to the Greater Wellington Regional Council, and noting that participation by two-thirds of territorial authorities within the region is required to access the regional allocation;

(viii)    notes  that the MoU and Funding Agreement cannot be amended or modified by either party, and doing so would void these documents;

(ix)      notes that participation in this initial stage is to be undertaken in good faith, but this is a non-binding approach, and the Council can opt out of the reform process at the end of the term of the agreement;

(x)       notes that the funding will be received as a grant as soon as practicable once the signed MoU and Funding Agreement are returned to the Department of Internal Affairs, and a Delivery Plan has been supplied and approved;

(xi)      notes that the Delivery Plan must show that the funding is to be applied to operating and/or capital expenditure relating to three waters infrastructure and service delivery, and that it supports economic recovery through job creation; and maintains, increases, and/or accelerates investment in core water infrastructure renewal and maintenance.

For the reason that Council needs to be in a position to respond to the Government’s water reform programme in a timely and appropriate manner.

 

Executive Summary

2.    In July 2020, the Government announced a $761 million funding package to provide post COVID-19 stimulus to maintain, improve three waters infrastructure, support a three-year programme of reform of local government water service delivery arrangements (reform programme), and support the establishment of Taumata Arowai, the new Waters Services Regulator. $59.8 million of this funding package was allocated to the Wellington Region, with Hutt City Council’s total proposed share being $10.6 million.

3.    A Joint Central/Local Government Three Waters Steering Committee has been established to provide oversight and guidance to support progress towards reform, and to assist in engaging with local government, iwi/Māori, and other water sector stakeholders on options and proposals.

4.    The reform programme is designed to support economic recovery, and address persistent systemic issues facing the three waters sector, through a combination of:

stimulating investment, to assist economic recovery through job creation, and maintain investment in water infrastructure renewals and maintenance; and

reforming current water service delivery, into larger scale providers, to realise significant economic, public health, environmental, and other benefits over the medium to long term.

5.    Initial funding from the stimulus package is available if the Council agrees to participate in the first stage of the reform programme, through a Memorandum of Understanding (MoU), Funding Agreement, and approved Delivery Plan. The MoU must be signed by the end of August 2020, with the Funding Agreement and Delivery Plan submitted and approved by the end of September 2020.

Background

6.    Over the past three years, central and local government have been considering the issues and opportunities facing the system for regulating and managing the three waters (drinking water, wastewater, and stormwater).

7.    The   Government Inquiry into Havelock North Drinking Water – set up following the serious campylobacter outbreak in 2016 – identified widespread, systemic failure of suppliers to meet the standards required for the safe supply of drinking water to the public. It made a number of urgent and longer-term recommendations to address these significant systemic and regulatory failures.

8.    The Government’s Three Waters Review highlighted that, in many parts of the country, communities cannot be confident that drinking water is safe, or that good environmental outcomes are being achieved. This work also raised concerns about the regulation, sustainability, capacity and capability of a system with a large number of localised providers, many of which are funded by relatively small populations.

9.    The local government sector’s own work has highlighted similar issues. For example, in 2014, LGNZ identified an information gap relating to three waters infrastructure. A 2015 position paper, argued for a refresh of the regulatory framework to ensure delivery of quality drinking water and wastewater services, and outlined what stronger performance in the three waters sector would look like.

10.  Both central and local government acknowledge that there are many challenges facing the delivery of water services and infrastructure, and the communities that fund and rely on these services. These challenges include:

a.       Underinvestment in three waters infrastructure in parts of the country, and substantial infrastructure deficits. For example, it is estimated that between $300 to $570 million is required to upgrade networked drinking water treatment plants to meet drinking water standards; and up to $4 billion is required to upgrade wastewater plants to meet new consent requirements. These deficits are likely to be underestimates, given the variable quality of asset management data. 

b.       Persistent funding and affordability challenges, particularly for communities with small rating bases, or high-growth areas that have reached their prudential borrowing limits.

c.       Additional investment required to increase public confidence in the safety of drinking water, improve freshwater outcomes, and as a critical component of a collective response to climate change and increasing resilience of local communities.

11.  COVID-19 has made the situation even more challenging. Prior to COVID-19, territorial authorities were planning on spending $8.3 billion in capital over the next five years on water infrastructure. However, COVID-19 is likely to cause significant decreases in revenue in the short term. As a result, borrowing will be constrained due to lower debt limits that flow from lower revenues, and opportunities to raise revenue through rates, fees and charges will be limited.

Progress with three waters regulatory reforms

12.  Good progress is already being made to address the regulatory issues that were raised by the Havelock North Inquiry and Three Waters Review. The Government is implementing a package of reforms to the three waters regulatory system, which are designed to:

a.       Improve national-level leadership, oversight, and support relating to the three waters – through the creation of Taumata Arowai, a new, dedicated Water Services Regulator;

b.       significantly strengthen compliance, monitoring, and enforcement relating to drinking water regulation;

c.       manage risks to drinking water safety and ensure sources of drinking water are protected; and

d.      improve the environmental performance and transparency of wastewater and stormwater networks.

 

13.  The new regulator Taumata Arowai is currently being established. This new Crown entity will become responsible for drinking water regulation once a separate Water Services Bill is passed (anticipated mid 2021).

14.  However, both central and local government acknowledge that regulatory reforms alone will not be sufficient to address many of the persistent issues facing the three waters system. Reforms to service delivery and funding arrangements also need to be explored.

Discussion

15.  At the recent Central/Local Government Forum, central and local government leadership discussed the challenges facing New Zealand’s water service delivery and infrastructure, and committed to working jointly on reform. A Joint Central/Local Government Three Waters Steering Committee has been established to provide oversight and guidance to support this work.

16.  Central and local government consider it is timely to apply targeted infrastructure stimulus investment to enable improvements to water service delivery, progress service delivery reform in partnership, and ensure the period of economic recovery following COVID-19 supports a transition to a productive, sustainable economy.

17.  In July 2020, the Government announced an initial funding package of $761 million to provide post COVID-19 stimulus, support a three-year programme of reform of local government water service delivery arrangements, and support the establishment and operation of Taumata Arowai.

18.  The reform programme is designed to support economic recovery, and address persistent systemic issues facing the three waters sector, through a combination of:

a.       stimulating investment, to assist economic recovery through job creation, and maintain investment in water infrastructure renewals and maintenance; and

b.       reforming current water service delivery, into larger scale providers, to realise significant economic, public health, environmental, and other benefits over the medium to long term.

19.  While the Government’s starting intention is for publicly-owned multi-regional models for water service delivery (with a preference for local authority ownership), final decisions on a service delivery model will be informed by discussion with the local government sector and the work of the Joint Steering Committee.

Reform process and indicative timetable

20.  As noted above, this is a three-year programme to reform three waters service delivery arrangements, which is being delivered in conjunction with an economic stimulus package of Crown investment in water infrastructure. The reform programme will be undertaken in stages.

21.  The initial stage is an opt in, non-binding approach, which involves councils taking the actions and signing the documents described below (MoU, Funding Agreement, and Delivery Plan).

22.  Councils that agree to opt in by the end of August 2020 will receive a share of the initial funding package. Any further tranches of funding will be at the discretion of the Government and may depend on progress against reform objectives.

23.  An indicative timetable for the full reform programme is provided below. While this is subject to change as the reforms progress, and subject to future Government budget decisions, it provides an overview of the longer-term reform pathway.

Allocation of the Investment Package

24.  The Government has determined a notional allocation framework based on a nationally- consistent formula.

25.  The general approach to determining each authority's notional allocation is based on a formula that gives weight to two main factors:

a.    The population in the relevant council area, as a proxy for the number of water connections serviced by a territorial authority (75 per cent weighting); and

b.    The land area covered by a local authority excluding national parks, as a proxy for the higher costs per connection of providing water services in areas with low population density (25 per cent weighting).

26.  The investment package is structured into two components:

a.    A direct allocation to each territorial authority, comprising 50% of that territorial authority's notional allocation; and

b.    A regional allocation, comprising the sum of the remaining 50% of the notional allocations for each territorial authority in the relevant region.

27.  The purpose of the Government’s regional allocation is to establish collective participation by councils in the reform programme. Each regional group of councils has until 30 September to agree on how best to apportion the regional funds to the individual territorial authorities that make up the region. The Chief Executives of the Region consider that the fairest way to distribute the regional allocation is to use the same formula as the territorial authority allocation, with GWRC as owner of the bulk water network being allocated a share of the fund.

28.  On this basis, the relevant allocations for Hutt City would be:

a.    a direct allocation of $5.7M (excluding GST)

b.    and $4.9M (excluding GST) as Hutt City’s share of the regional allocation.

29.  Officers recommend delegating decisions about the allocation of regional funding to the Chief Executive, with the understanding that allocations will be made on this basis.

What actions are the Council being asked to take at this point?

30.  The initial stage of the reform programme involves three core elements:

a.    Memorandum of Understanding (Appendix 1);

b.    Funding Agreement (Appendix 2);

c.     Draft Delivery Plan (Appendix 3).

31.  Initial funding will be made available to those councils that sign the MoU, and associated Funding Agreement, and provide a Delivery Plan.

32.  This initial funding will be provided in two components: a direct allocation to individual councils, and a regional allocation. The participating councils in each region are required to agree an approach to distributing the regional allocation.

33.  The MoU is the ‘opt in’ to the first stage of the reform and stimulus programme. The MoU needs to be signed and submitted by the end of August 2020. The Funding Agreement and Delivery Plan need to be submitted by the end of September 2020, to access the stimulus funding,

34.  Councils that do not opt in by the end August 2020 deadline will not receive a share of the stimulus funding. Councils will still be able to opt in to the reform programme at a later date, but will not have access to the initial funding package, retrospectively.

Memorandum of Understanding

35.  A MoU has been developed by the Steering Group, for each council to enter into with the Crown.  This is a standardised document, which cannot be amended or modified by either party.

36.  Signing the MoU commits councils to:

a.    engage in the first stage of the reform programme – including a willingness to accept the reform objectives and the core design features set out in the MoU;

b.    the principles of working together with central government and the Steering Committee;

c.     work with neighbouring councils to consider the creation of multi-regional entities;

d.    share information and analysis on their three waters assets and service delivery arrangements.

37.  At this point, this is a voluntary, non-binding commitment. It does not require councils to commit to future phases of the reform programme, to transfer their assets and/or liabilities, or establish new water entities.

38.  The MoU is effective from the date of agreement until 30 June 2021, unless terminated by agreement or by replacement with another document relating to the reform programme.

39.  A legal opinion by Simpson Grierson, commissioned by SOLGM on behalf of the Steering Committee, advises that the MoU does not contain any explicit triggers for consultation under the Local Government Act 2002.

Funding Agreement

40.  Hutt City Council has been allocated $10.6M if it opts in to the reform programme.  This funding will be provided as a grant, which does not need to be repaid if the Council does not ultimately commit to reform at later stages of the process.

41.  The Funding Agreement is one of the mechanisms for accessing the funding package. Like the MoU, it is a standardised document, for agreement between each council and the Crown. It cannot be amended.

42.  The Funding Agreement guides the release and use of funding. It sets out:

a.         the funding amount allocated to Council;

b.         funding conditions;

c.         public accountability requirements, including the Public Finance Act;

d.         reporting milestones.

43.  While there is some local flexibility around how the funding can be applied, the Government has indicated that this investment is intended to support economic recovery, enable improvements in water service delivery, and progress the service delivery reform programme.

44.  The Funding Agreement will be supplemented by a Delivery Plan, which is the document that sets out how the grant funding is to be applied by the Council.

Delivery Plan

45.  The Delivery Plan is the other mechanism for accessing the funding package.

46.  The Delivery Plan must show that the funding allocation is to be applied to operating and/or capital expenditure relating to three waters infrastructure and service delivery, and which:

 

o   supports economic recovery through job creation; and

o   maintains, increases, and/or accelerates investment in core water infrastructure renewal and maintenance.

43    The Delivery Plan is a short-form template, which sets out:

o   a summary of the works to be funded, including location, estimated associated costs, and expected benefits/outcomes;

o   the number of people to be employed in these works;

o   an assessment of how the works support the reform objectives in the MoU;

o   reporting obligations.

44   The Delivery Plan will be supplied to Crown Infrastructure Partners (and other organisations as agreed between the Council and Crown), for review and approval. Crown Infrastructure Partners will monitor progress against the Delivery Plan, to ensure spending has been undertaken with public sector financial management requirements.

45   A draft Delivery Plan has been prepared for shareholding Councils by Wellington Water Limited.  For Hutt City Council it is proposed that funding be allocated to asset renewals ($4.2M), condition assessments ($2.1M), maintenance and service improvements ($2.0M), asset management systems and processes ($200k), Data and technology systems ($700k), water safety priorities ($1.1M) and programme delivery ($300k). Refer Appendix 3 and appendix 4 for further details.

Options

46   Council has limited options: 

a.       Sign the MoU, accept the grant funding and engage with the Government around water reform. Officers recommend this option.

b.       Elect not to sign the MoU, forgo the grant funding and look to manage three waters outside of the Government framework. 

Climate Change Impact and Considerations

47   The matters addressed in this report have been considered in accordance with the process set out in Council’s Climate Change Considerations Guide.

Consultation

48   There has been opportunity for discussion with other local authorities around the water reform process.

49   There has been no real opportunity for public consultation on this matter due to the tight timeframe. A legal opinion obtained by SOLGM advises that the MoU does not contain any explicit triggers for consultation under the Local Government Act 2002 – refer Appendix 5.

Legal Considerations

50   There are no legal considerations.

Financial Considerations

51   By signing the MOU, Council will receive $10.6M which it can use to help address a number of issues with three waters infrastructure. 

Appendices

No.

Title

Page

1

Appendix 1 : Memorandum of Understanding - Three Waters Reform

17

2

Appendix 2: Funding Agreement

25

3

Appendix 3: Draft Delivery Plan

44

4

Appendix 4: Delivery Plan Approach Prepared by Wellington Water

61

5

Appendix 5 - Simpson Grierson legal advice

67

     

 

 

 

 

 

Author: Bruce Hodgins

Strategic Advisor

 

 

 

Author: Jenny Livschitz

Chief Financial Officer

 

 

 

 

 

 

Approved By: Jo Miller

Chief Executive

 


Attachment 1

Appendix 1 : Memorandum of Understanding - Three Waters Reform

 


 


 


 


 


 


 


 


Attachment 2

Appendix 2: Funding Agreement

 

 

Funding Agreement

Between

DEPARTMENT OF INTERNAL AFFAIRS

And

[NAME OF RECIPIENT]

For

Three Waters Services Reforms

 

Agreement

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

1     Parties

The Sovereign in right of New Zealand, acting by and through the Chief Executive of the Department of Internal Affairs (DIA)

[NAME OF RECIPIENT] (Recipient)

2     Background

The New Zealand Government is undertaking a reform programme for “Three Waters” (drinking water, wastewater and stormwater) service delivery for communities (Three Waters Reform Programme).  In conjunction with the Three Waters Reform Programme, the New Zealand Government is investing in water service delivery.  The investment’s objectives are to:

1.    improve the safety and quality of drinking water services, and the environmental performance of drinking water and wastewater systems, by maintaining, increasing or accelerating investment in core water infrastructure renewals and maintenance; and

2.    support New Zealand’s economic recovery from the COVID-19 pandemic through job creation, by enabling investment to continue at a time when council revenues are uncertain and they face immediate cashflow challenges. 

The New Zealand Government has mandated DIA to manage the provision of Government funding to local authorities to support investment in water infrastructure that supports its public health and environmental management objectives.  Provision of such funding supports the objectives of the reform programme, by creating positive momentum toward reform of delivery arrangements for drinking water and wastewater services and infrastructure (with stormwater as a secondary priority). 

The New Zealand Government has also mandated Crown Infrastructure Partners Limited (CIP) to assist in managing such funding by undertaking a monitoring role. 

The Recipient is a territorial authority with statutory responsibility for delivering Three Waters services within its own district or city.  The Recipient will work collaboratively with the New Zealand Government in connection with the Three Waters Reform Programme.

DIA has agreed to contribute funding to the Recipient 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.

3     Conditions Precedent

No Funding is payable under this Agreement until DIA 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:

1.    This Agreement, duly executed by the Recipient by 30 September 2020.

2.    The Memorandum of Understanding, duly executed by the Recipient by 31 August 2020.

3.    The final Delivery Plan prepared by the Recipient, in a form approved by DIA and duly executed by the Recipient by 31 October 2020. 

A draft of the Delivery Plan must be submitted by no later than 30 September 2020 to threewaters@dia.govt.nz (copied to the Monitor) for review and comment by DIA (and/or the Monitor as its nominee).

Once DIA (or the Monitor) responds to the draft Delivery Plan, the Recipient must promptly engage with DIA (or the Monitor), seek to resolve such comments, and submit a final Delivery Plan for DIA’s approval.

The Recipient is responsible for the content of the Delivery Plan and approval by DIA for the purposes of this Agreement shall not impose any obligations on DIA in respect of the Delivery Plan other than as expressly set out in this Agreement.

These conditions precedent must either be satisfied (in the opinion of DIA) or waived by DIA (at its sole discretion) by 31 October 2020, unless a later date is agreed otherwise in writing with DIA.  In the event that they are not satisfied or waived within that time, DIA may notify the Recipient that this Agreement has not come into effect and is null and void.

4     Expenditure Programme(s)

The Recipient may only use the Funding to complete the expenditure programme(s) described in the Delivery Plan (each an Expenditure Programme).  

5     Expenditure Programme Milestones and Completion Dates

The Recipient is to complete the Expenditure Programme Milestones set out in the Delivery Plan to the satisfaction of DIA by the Completion Dates dates set out therein. 

6     End Date

The End Date is 31 March 2022, or such later date determined by DIA in its discretion. 

7     Funding

The total Funding available under this Agreement is up to NZ$[INSERT HERE] plus GST (if any).  This is the Total Maximum Amount Payable. 

The first instalment of Funding under this Agreement is subject to satisfaction of the Conditions Precedent set out in Item 3 above and receipt of a duly completed Payment Request in accordance with clause 1 of Part 2.

The balance of the Funding under this Agreement will be paid in instalments as specified in the Delivery Plan, subject to satisfaction of the conditions set out below and the other terms and conditions of this Agreement.

Each instalment of Funding under this Agreement, following payment of the first instalment, is subject to:

(a)  Receipt of a duly completed Payment Request in accordance with clause 1 of Part 2.

(b)  The Expenditure Programme(s) having commenced no later than 31 March 2021.

(c)   DIA receiving and being satisfied with the quarterly reports specified in the Key Details, together with the other information required in this Agreement.

(d)  No Termination Event, or event entitling DIA to suspend funding under this Agreement, subsisting.

(e)  Any further conditions relating to that instalment of Funding as specified in the Delivery Plan.

The first Payment Request may be submitted upon the Commencement Date occurring.  Each subsequent Payment Request may only be submitted at the same time as submission of a quarterly report in accordance with item 8 (Reporting) of the Key Details, and no more than one such Payment Request may be submitted in any Quarter, except (in each case) to the extent agreed by DIA in its sole discretion. 

8     Reporting

The Recipient will provide DIA (copied to the Monitor) with quarterly reports by the 10th Business Day following the end of each Quarter, with effect from the Commencement Date.  Each quarterly report must include the information set out below, in the standard reporting form specified by DIA.

The Recipient will also provide DIA (copied to the Monitor) with a final report by the 10th Business Day following the date on which the Expenditure Programme(s) are completed.  The final report must include the information set out below, in the standard reporting form specified by DIA.

Each report is to be in form and substance satisfactory to DIA in its sole discretion. 

Each quarterly report must include the following information:

(a)  Description and analysis of actual progress of the Expenditure Programme(s) against planned progress for the relevant Quarter;

(b)  A summary of expenditure, actual against budgeted (including underspend and cash float), for the relevant Quarter;

(c)   Plans for the next Quarter;

(d)  Forecast cashflows and forecast of the costs to complete the Expenditure Programme(s);

(e)  Any major risks arising or expected to arise with the Expenditure Programme(s), costs or performance of this Agreement, together with actual or proposed mitigations for those risks (including, where the actual Expenditure Programme(s) costs are forecast to exceed budgeted costs, how the shortfall is to be funded);

(f)   A summary of the number of jobs created, actual against expected, through people employed in the Expenditure Programme(s);

(g)  Any specific reporting requirements set out in the Delivery Plan; and

(h)  Any other information that is notified by DIA in writing to the Recipient.

The final report must include the following information:

(a)  Description and analysis of completion of the Expenditure Programme(s) against the original programme;

(b)  A summary of expenditure, actual against budgeted (including underspend), for the full Expenditure Programme(s);

(c)   Detail of the Recipient’s proposed next steps;

(d)  An update on media, marketing and communication activities for the Expenditure Programme(s);

(e)  A summary of the number of jobs created, actual against expected, through people employed in the Expenditure Programme(s);

(f)   Any specific reporting requirements set out in the Delivery Plan;  and

(g)  Any other information that is notified by DIA in writing to the Recipient.

9     Special Terms

[None] / [Special terms to be added]

 

10   Recipient’s Bank Account

[xx-xxxx-xxxxxxxx-xxx]

11   Representative

DIA’s Representative:

Name:  Allan Prangnell

Email:  threewaters@dia.govt.nz

Recipient’s Representative:  

Name: [name]

Email: [email]

12   Address for Notices

To DIA:

Three Waters Reform
Level 7, 45 Pipitea Street
Wellington 6011 

Attention: Allan Prangnell

Email: threewaters@dia.govt.nz, with a copy to legalnotices@dia.govt.nz

To the Monitor:

Attention: Anthony Wilson

Email: 3waters@crowninfrastructure.govt.nz

To the Recipient:  

[address]

Attention: [name]

Email: [email]

SIGNATURES

SIGNED by the SOVEREIGN IN RIGHT OF NEW ZEALAND acting by and through the Chief Executive of the Department of Internal Affairs or his or her authorised delegate:

 

_____________________________

Name:

Position:

Date:

SIGNED for and on behalf of [RECIPIENT NAME] by the person(s) named below, being a person(s) duly authorised to enter into obligations on behalf of the Recipient:

 

_____________________________

Name:

Position:

Date:

 

 

_____________________________

Name:

Position:

Date:

END OF PART 1

Part 2:  General Terms

1            Funding

1.1       DIA 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 that have been or will be incurred by the Recipient, and the Recipient must use the Funding solely on Eligible Costs.

1.2       The Recipient must submit a Payment Request to threewaters@dia.govt.nz and copying in DIA's Representative and the Monitor on completion of one or more Expenditure Programme Milestones specified in the Delivery Plan.  Such Payment Request must be submitted at the time specified in, and otherwise in accordance with, item 7 (Funding) in the Key Details.

1.3       Each Payment Request is to be signed by the Chief Executive 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 aggregate maximum Funding instalment amounts set out in the Delivery Plan for the Expenditure Programme Milestone(s) to which that Payment Request relates; and

(b)         contain any other information required by DIA.

1.4       Once DIA has reviewed the Payment Request and the information enclosed with it, it will request the Recipient to provide (and the Recipient will provide) a valid GST invoice complying with the Goods and Services Tax Act 1985. 

1.5       DIA is not required to pay any Funding in respect of a Payment Request:

(a)         if any Expenditure Programme Milestone(s) have not been completed by the relevant "Completion Date" specified in the Delivery Plan; 

(b)         if any reports specified in the Key Details have not been provided or are not in form and substance satisfactory to DIA in its sole discretion;

(c)         if the Conditions specified in Item 7 of the Key Details relating to that instalment have not been satisfied;

(d)         if payment will result in the Funding exceeding the "Total Maximum Amount Payable" specified in the Key Details;

(e)         if this Agreement has expired or been terminated; and/or

(f)          while the Recipient is in breach of this Agreement.

For the avoidance of doubt, DIA’s obligation to make Funding available under this Agreement is strictly subject to clause 6.2. 

1.6       Subject to the terms of this Agreement, DIA must pay each valid Payment Request by the 20th day of the month after the month the GST invoice referred to in clause 1.4 is dated, and if such day is not a Business Day, on the next Business Day.  DIA will pay the Funding to the Bank Account of the Recipient specified in Item 10 of the Key Details.

1.7       The Funding made available under this Agreement comprises grant funding and does not comprise an equity investment or loan.  It is only repayable in the specific circumstances set out in this Agreement.

1.8       DIA may, at its discretion, notify the Recipient in writing that it wishes to enter into a GST Offset Agreement in connection with the payment of GST on any Funding. The Recipient must, where applicable, take all such steps as are reasonably required to achieve that GST offset in accordance with the Goods and Services Tax Act 1985.

2            recipient’s responsibilities

Standards and compliance with laws

2.1        The Recipient must comply with all applicable laws, regulations, rules and professional codes of conduct or practice.

Expenditure Programme(s) and Contractors

2.2        The Recipient must not, without DIA’s prior written consent, make any Material Variation to the Expenditure Programme(s) (including its description and scope) as set out in the Delivery Plan.

2.3        The Recipient must ensure that the Expenditure Programme(s) 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 DIA, notified by DIA in writing from time to time.

2.4        The Recipient must use reasonable endeavours to ensure that the Expenditure Programme Milestones are completed by the relevant “Completion Date” specified in the Delivery Plan.

2.5        The Recipient is responsible for the acts and omissions of any contractors and subcontractors. 

2.6        The Recipient must ensure (and will procure that the head contractor when engaging with any other contractor ensures) that all agreements it enters into with any contractors or any other party in connection with the Expenditure Programme(s) 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 DIA with reasonable evidence of compliance with this clause 2.6 in response to any request by DIA from time to time.

Information Undertakings

2.7        The Recipient must provide DIA with the reports specified in the Key Details, in accordance with the timeframes and reporting requirements set out in the Key Details. 

2.8        The Recipient must provide DIA with any other information about the Expenditure Programme(s) requested by DIA within the timeframe set out in the request.

2.9        The Recipient must promptly notify DIA if:

(a)         the Recipient (or any of its personnel or contractors) becomes aware of, or subject to, a Conflict of Interest; or

(b)         the Recipient becomes aware of any matter that could reasonably be expected to have an adverse effect on an Expenditure Programme and any related programme, or result in a Termination Event or a breach of any term of this Agreement by the Recipient,

and if requested by DIA must promptly provide DIA with its plan to mitigate and manage such Conflict of Interest or such matter. 

2.10      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 DIA or the New Zealand Government.  The Recipient must keep DIA informed of any matter known to the Recipient which could reasonably be expected to have such an effect.

2.11      The parties acknowledge and agree that CIP (or any other Monitor) may, to the extent directed by DIA, undertake a reviewing and monitoring role under this Agreement, including by:

(a)         reviewing and confirming satisfaction with the Delivery Plan and with the reports specified in the Key Details;

(b)         seeking, reviewing and confirming satisfaction with further information from the Recipient; and

(c)         making recommendations to DIA and the New Zealand Government in respect of the Funding and the Agreement.

The Recipient agrees that all its communications and correspondence under this Agreement may be made with DIA or, to the extent directed by DIA, the Monitor. 

Funding, records and auditors

2.12      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.

2.13      The Recipient must keep full and accurate records (including accounting records) of the Expenditure Programme(s) and retain them for at least 7 years after the last payment of Funding under this Agreement.  The Recipient must permit DIA (or any auditor nominated by DIA) to inspect all records relating to the Expenditure Programme(s) and must allow DIA and/or the auditor access to the Recipient's premises, systems and personnel for the purposes of this inspection. DIA shall bear any third party costs arising from such inspection, unless the inspection reveals a breach of this Agreement, in which case the Recipient shall bear such costs.

Reform

2.14      The Recipient agrees to work constructively together with DIA and the New Zealand Government to support the objectives of the Three Waters Reform Programme pursuant to the Memorandum of Understanding.  The parties acknowledge that the undertaking set out in this clause 2.14 is intended to be non-binding.

3            intellectual property

3.1        DIA acknowledges that the Recipient and its licensors own all pre-existing intellectual property which they contribute to the Expenditure Programme(s), and all new intellectual property which they create in the course of the Expenditure Programme(s).

3.2        The Recipient grants an irrevocable, perpetual, royalty-free, sub-licensable licence to DIA and the Monitor to use all reports, documents, information and other materials created or provided by the Recipient to DIA or the Monitor under or in connection with the Expenditure Programme(s) and this Agreement.

3.3        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 3.2 without infringing the intellectual property rights of any third party.

4            TERM AND TERMINATION

4.1        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 DIA has provided written notice to the Recipient that the Conditions Precedent specified in the Key Details have either been satisfied (in the opinion of DIA) or waived by DIA (at its sole discretion).

4.2        This Agreement will remain in force until the End Date, unless terminated in accordance with this Agreement.

4.3        DIA can terminate this Agreement with immediate effect, by giving notice to the Recipient, at any time:

(a)         while DIA reasonably considers that the Recipient has become or is likely to become insolvent;

(b)         while the Recipient is subject to the appointment of a liquidator, receiver, manager or similar person in respect of any of its assets or a Crown Manager or Commission is appointed in respect of the Recipient under Part 10 of the Local Government Act 2002;

(c)         if the Expenditure Programme(s) have not commenced by 31 March 2021; or

(d)         while 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 has provided DIA with information in connection with or under this Agreement that (whether intentionally or not) is materially incorrect or misleading, and/or omits material information;

(iii)        DIA reasonably considers that this Agreement or an Expenditure Programme has caused, or may cause, DIA and/or the New Zealand Government to breach any legal obligations (including its international trade obligations);

(iv)        the Recipient abandons an Expenditure Programme;

(v)         the Recipient is involved in any intentional or reckless conduct which, in the opinion of DIA, has damaged or could damage the reputation, good standing or goodwill of DIA or the New Zealand Goverment, 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 DIA's satisfaction; or

(vii)       any change in law, regulations or other circumstances materially affects DIA's ability to perform its obligations under this Agreement.

4.4        However, where DIA considers that a Termination Event set out in clause 4.3(d) can be remedied, DIA 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 DIA.

4.5        On expiry or termination of this Agreement, where the aggregate of (a) the total Funding paid under this Agreement and (b) any other money received or allocated by the Recipient, in each case to carry out an Expenditure Programme, exceeds the amount required to perform the Expenditure Programme, the Recipient must upon request refund to DIA the excess amount. 

4.6        At any time DIA may recover the amount of any Funding that has been spent or used other than in accordance with this Agreement, or not applied to Eligible Costs by the End Date, 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. 

4.7        Clauses 1.5, 2.1, 2.12, 2.13, 3, 4, 5, 6, 7, 8, 9, 10 and 11 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.

5            WARRANTIES and undertakings

5.1        The Recipient warrants that, in the course of its activities in connection with the Expenditure Programme(s), it will not infringe any intellectual property or other rights of any contractor or any other third party.

5.2        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, and it has complied with the Local Government Act 2002 in entering into this Agreement;

(b)         the Recipient is solvent and is not subject to the appointment of a liquidator, receiver, manager or similar person in respect of any of its assets or to the appointment of a Crown Manager or Commission under Part 10 of the Local Government Act 2002;

(c)         all information and representations disclosed or made to DIA 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 DIA as to any material matter;

(d)         it has disclosed to DIA all matters known to the Recipient (relating to the Expenditure Programme(s), the Recipient or its personnel) that could reasonably be expected to have an adverse effect on the reputation, good standing or goodwill of DIA or the New Zealand Government; and

(e)         it is not aware of any material information that has not been disclosed to DIA which may, if disclosed, materially adversely affect the decision of DIA whether to provide the Funding.

5.3        The Recipient warrants that:

(a)         the Funding has been or will be applied solely to Eligible Costs; and

(b)         the Expenditure Programme(s) will take into account the parties’ shared intention to:

(i)          support economic recovery through job creation; and

(ii)         maintain, increase and/or accelerate investment in core water infrastructure renewals and maintenance,

and such warranty will be deemed to be repeated continuously so long as this Agreement remains in effect by reference to the facts and circumstances then existing.

5.4        DIA warrants that, as at the date of this Agreement, 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.

5.5        The Recipient acknowledges that DIA has entered into this Agreement in reliance on these warranties and undertakings.

5.6        The Recipient acknowledges and agrees that DIA has made no warranty or representation that any funding or financial support is or will be available to the Recipient in respect of the Expenditure Programme(s), other than the Funding. 

6            liability

6.1        The maximum liability of DIA 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. 

6.2        The Recipient undertakes to pay any and all cost overruns of the Expenditure Programme(s) and any funding shortfall, and DIA and the New Zealand Government have no obligations or responsibility whatsoever in respect of such cost overruns and funding shortfall and accept no financial risk in the Expenditure Programme(s). 

6.3        DIA is not liable for any claim under or in connection with this Agreement or the Expenditure Programme(s), 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.

7            CONFIDENTIALITY

7.1        Subject to clause 7.2 and 7.3, 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, contractors or advisors with a need to know, so long as the relevant personnel, contractors and advisors 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, contractors or advisors 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)         DIA 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 DIA removes all information that is commercially sensitive to the Recipient from the relevant work.

7.2        The Recipient acknowledges and agrees that nothing in this Agreement restricts DIA’s ability to:

(a)         discuss, and provide all information in respect of, any matters concerning the Recipient, the Expenditure Programme(s) or this Agreement with any Minister of the Crown, the Monitor, 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 contractor's names, the amount and duration of the Funding and a brief description of the Expenditure Programme(s), on websites; in media releases; general announcements and annual reports.

7.3        The Recipient acknowledges that:

(a)         the contents of this Agreement (including the Delivery Plan); and

(b)         information provided to DIA and the Monitor (including the reports specified in the Key Details),

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 under the Official Information Act 1982 to withhold it. 

7.4        DIA acknowledges that the Recipient is subject to the Local Government Official Information and Meetings Act 1987 and that its confidentiality obligations under this clause 7 are subject to its compliance with that Act.

8            media and communications

8.1        Before making any media statements or press releases (including social media posts) regarding this Agreement and/or DIA’s involvement with the Expenditure Programme(s), the Recipient will consult with DIA, and will obtain DIA’s prior approval to any such statements or releases. 

8.2        The Recipient will refer any enquiries from the media or any other person about the terms or performance of this Agreement to DIA’s Representative.

8.3        The Recipient will acknowledge the New Zealand Government as a source of funding in all publications (including any digital presence) and publicity regarding the Expenditure Programme(s) in accordance with funding acknowledgement guidelines agreed with DIA. The Recipient must obtain DIA’s approval of the form and wording of the acknowledgement prior to including the acknowledgement in the publication or publicity (as the case may be).

8.4        The Recipient does not have the right to enter into any commitment, contract or agreement on behalf of DIA or any associated body, or to make any public statement or comment on behalf of DIA or the New Zealand Government.

8.5        All correspondence with DIA under this clause 8 must be directed to DIA’s Representative and copied to threewaters@dia.govt.nz and the Monitor.

9            DISPUTES

9.1        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 9 (Dispute Notice).  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.

9.2        If the matter cannot be amicably settled within 20 Business Days after the date of the Dispute Notice then, at the request in writing of either party, the matter in respect of which the Dispute has arisen must be submitted, together with a report describing the nature of such matter, to the Representatives (or, if no such Representatives have been appointed, the respective Chief Executives of the parties) (together the Dispute Representatives). 

9.3        Within 20 Business Days after the receipt of a request under clause 9.2, one individual (who does not act in his or her professional capacity as legal counsel for either party) selected by each of the Dispute Representatives, must make a presentation of no longer than 30 minutes to each of the Dispute Representatives (which may be by telephone or remotely), who will then attempt in good faith to reach a common decision within a half-day.  The decision of the Dispute Representatives is binding on the parties.

9.4        In the case of a Dispute, if the Dispute Representatives have not met within 20 Business Days of receiving a request in accordance with clause 9.2, or if they fail to reach a common decision within the stated time period, either party may by notice in writing to the other party refer the Dispute to be referred to mediation before a single mediator appointed by the parties.  Each party will bear its own costs of mediation and the costs of the mediator will be divided evenly between the parties.

9.5        If the parties are unable to agree on the appointment of a mediator within 5 Business Days of the notice requiring the Dispute to be referred to mediation, a mediator may be appointed at the request of any party by the Arbitrators’ and Mediators’ Institute of New Zealand Inc.

9.6        If the Dispute is not resolved within 20 Business Days of referral to mediation, the parties may commence court proceedings without further participation in any mediation.

9.7        Nothing in this clause 9 will prevent either party from seeking urgent interim relief from a court (or other tribunal) of competent jurisdiction. 

10         Representatives

10.1      All matters or enquiries regarding this Agreement must be directed to each party's Representative (set out in the Key Details). 

10.2      Each party may from time to time change the person designated as its Representative on 10 Business Days' written notice to the other Party.  Any such change will also take effect as a change of the relevant Representative for the purposes of the Memorandum of Understanding.

11         general

11.1      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.

11.2      The Recipient agrees to execute and deliver any documents and to do all things as may be required by DIA to obtain the full benefit of this Agreement according to its true intent.

11.3      No legal partnership, employer-employee, principal-agent or joint venture relationship is created or evidenced by this Agreement.

11.4      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. 

11.5      No amendment to this Agreement will be effective unless agreed in writing and signed by both parties. 

11.6      The Recipient may not assign or transfer any of its contractual rights or obligations under this Agreement, except with DIA's prior written approval.

11.7      DIA may assign or transfer any of its contractual rights or obligations under this Agreement without the Recipient's prior approval.  DIA may at any time disclose to a proposed assignee or transferee any information which relates to, or was provided in connection with, the Recipient, the Expenditure Programme(s) or this Agreement.

11.8      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.

11.9      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.

11.10    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.

11.11    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.

11.12    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.

11.13    This Agreement may be executed in any number of counterparts (including duly electronically signed, 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.  This Agreement is intended to constitute a binding and enforceable agreement in accordance with its terms. 

END OF PART 2

Part 3:  Definitions and Construction


Defined terms

In this Agreement, unless the context requires otherwise, terms defined in the Agreement have the meaning set out therein and:

Authorisation means:

(a)       any consent, authorisation, registration, filing, lodgement, agreement, notarisation, certificate, permission, licence, approval, authority or exemption from, by or with a governmental agency or required by any law (including any consent under the Resource Management Act 1991); or

(b)       in relation to anything which will be fully or partly prohibited or restricted by law if a governmental agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.

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.

Commencement Date has the meaning given in clause 4.1 of Part 2.

Completion Date is the date that the relevant Expenditure Programme Milestone is to be completed by the Recipient, described in the Delivery Plan, and includes any amendment to the date which may be agreed in writing (including by email but only when DIA’s Representative expressly confirms in writing that they have received approval of the change from the correct DIA delegation holder) between the parties from time to time.

Conditions means the conditions to the payment of a Funding instalment as specified in Item 7 of the Key Details.

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 (excluding the Delivery Plan) are not Confidential Information.  

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 DIA under this Agreement; or

(ii)        the interests of the Recipient in relation to this Agreement and/or the procuring of the Expenditure Programme(s); 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 Expenditure Programme(s) in accordance with this Agreement.

Delivery Plan means the delivery plan setting out the scope of the Expenditure Programme(s) to which Funding is to be applied, based on the template provided by and in the form approved by DIA and executed by DIA and the Recipient. 

Eligible Costs means the actual costs that have been or will be reasonably incurred by the Recipient on or after the Commencement Date and no later than the End Date to deliver an Expenditure Programme in accordance with the Delivery Plan.

Expenditure Programme Milestone means, in respect of an Expenditure Programme, a milestone for that Expenditure Programme, as set out in the Delivery Plan. 

Funding means the funding or any part of the funding (as the context requires) payable by DIA to the Recipient in accordance with the terms of this Agreement, as described in the Key Details.

GST Offset Agreement means a deed of assignment between DIA as Assignor and the Recipient as Assignee providing for the offset of the amount of GST in accordance with the Goods and Services Tax Act 1985.

Key Details means Part 1 of this Agreement.

Memorandum of Understanding means the memorandum of understanding relating to Three Waters Services Reform between DIA and the Recipient, in the form provided by DIA. 

Material Variation means, in respect of an Expenditure Programme, any variation which on its own or together with any other variation or variations results in, or is likely to result in the budgeted expenditure (taking into account all variations) being exceeded or an Expenditure Programme being materially delayed, or any variation that materially amends the scope, specifications or function of an Expenditure Programme.

Monitor means CIP, or any other entity appointed by DIA in its sole discretion to assist in managing the Funding by undertaking a monitoring role. 

Payment Request means a request submitted to DIA by the Recipient seeking payment of Funding substantially in the form set out in the Schedule to this Agreement.

Quarter means a financial quarter, being a three monthly period ending on 30 June, 30 September, 31 December or 31 March.

Termination Event means any one or more of the events or circumstances set out in clause 4.3.

Construction

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, the Key Details will prevail over Part 2, and Part 2 will prevail over the Delivery Plan;

Precedence with Memorandum of Understanding:  if there is any conflict between this Agreement and the Memorandum of Understanding, then unless specifically stated otherwise, this Agreement will prevail;

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:          DEPARTMENT OF INTERNAL AFFAIRS

Dated:  [•]

PAYMENT REQUEST

1.         We refer to the Funding Agreement dated [•] 2020 between [•] as recipient (Recipient) and the Department of Internal Affairs (DIA) (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 clauses 1.2 and 1.3 of the Agreement.

3.         Each of the Expenditure Programme Milestones that have been completed are:

[insert description of each of Expenditure Programme Milestones completed, including the date of completion]

4.         The amount of Funding requested is $[•] plus GST if any. 

5.         The Funding requested in this Payment Request has been or will be required to meet the Eligible Costs.

6.         We enclose with this Payment Request:

(a)         a breakdown / total transaction listing of total Eligible Costs that have been or will be incurred to deliver the completed Expenditure Programme Milestone(s);

(b)         the conditions to the applicable Expenditure Programme Milestone(s) as set out in the Funding Agreement and the Delivery Plan;

(c)         a quarterly report; and *Note: (c) is not applicable for the first Payment Request, or where DIA has agreed under item 7 of the Key Terms that a Payment Request does not need to be provided alongside a quarterly report  

(d)         any other reasonable information or evidence requested by DIA or the Monitor in relation to Eligible Costs that have been incurred or will be incurred.

7.         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.

By and on behalf of the Recipient by

NAME OF RECIPIENT

_______________________
Chief Executive

 

_______________________
Authorised Officer


Attachment 3

Appendix 3: Draft Delivery Plan

 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


Attachment 4

Appendix 4: Delivery Plan Approach Prepared by Wellington Water

 


 


 


 


 


 


Attachment 5

Appendix 5 - Simpson Grierson legal advice

 


 


 


 


 


 


Hutt City Council

12 August 2020

 

 

 

File: (20/896)

 

 

 

 

Report no: HCC2020/5/18

 

Community Funding Panel Appointments

 

 

 

 

Purpose of Report

1.    The purpose of this report is for Council to appoint city-wide Councillors and Alternates to the four new Community Funding Panels, note the appointments made by the Community Funding Panel Subcommittees, and appoint the Chairs of the Community Funding Panels for an initial term.

 

Recommendations

That Council:

(i)        appoints a city-wide Councillor and an Alternate city-wide Councillor to each of the four Community Funding Panels;

(ii)       notes the appointment of the following people as members of the Central Community Funding Panel – Councillor David Bassett, Ms Catherine Chapman, Mr Matt Claridge; Mr Wayne Gazley, Ms Prabha Ravi and
Ms Ailsa Webb;

(iii)      notes the appointment of the following people as members of the Eastern Community Funding Panel – Councillor Andy Mitchell, Ms Christine Fagan, Mr Dion Howard; Ms Liz Pa’u, Mr Luke Qin and Mr Noel Woods;

(iv)      notes the appointment of the following people as members of the Northern Community Funding Panel – Councillor Leigh Sutton, Mr Dave Gillespie, Ms Janette Granville; Ms Barbara Hay, Ms Twiggy Johnston and Ms Kamiria (Mid) Thomas-Savelio;

(v)       notes the appointment of the following people as members of the Western Community Funding Panel – Councillor Chris Milne, Mr George Collins,
Ms Sarah Harris; Mr Chris Parkin, Mr Mark Rahman and Ms Elaine Richardson;

(vi)      appoints a member of each Community Funding Panel to be the Chair for an initial six month period, following which each Panel will elect its own Chair;  

(vii)     notes the delegations to the Community Funding Panels attached as Appendix 1; and

(viii)    notes that a Powhiri has been scheduled at 7pm on 26 August 2020 to welcome the members of the Community Funding Panels.

For the reason that Community Funding Panels are considered an important component of local democracy in those Wards without Community Boards, in order to assist their communities with local projects and initiatives.

 

Background

2.    At its meeting held on 26 May 2020 Council resolved that Community Funding Panels would continue for the 2019-2022 triennium, and that their role would be that of community funders focused on supporting local projects and initiatives.

3.    At a subsequent Council meeting held on 30 June 2020, Council agreed on the recruitment process to be followed and amended the delegations to reflect membership and quorum requirements for the new Panels.

Discussion

4.    Applications for membership of the new Community Funding Panels closed on 31 July 2020, and a total of 38 applications were received (nine from the Central Ward, 14 from the Eastern Ward, nine from the Northern Ward and six from the Western Ward).

5.    A Community Funding Panel Subcommittee comprising the Mayor, Deputy Mayor, Councillor Briggs and the relevant Ward Councillor was given delegated authority to appoint Community Funding Panel members for the 2019-2022 triennium.

6.    The Subcommittee assessed the candidates on their ability to:

a.    Demonstrate a real commitment and passion to their local community;

b.    Provide clear evidence of a connection or strong networks with local community groups and residents;

c.     Live in the ward they seek to work for or alternatively be able to demonstrate clear connections/commitment to that community; and

d.    Demonstrate an interest in local body matters and/or including an interest in standing for Council in the future.

7.    In addition the Subcommittee, in making its final decisions on Panel membership, took into account the following:

a.    Applicants’ professional skills; and

b.    Existing membership of community groups, e.g. Residents’ Associations, Marae, School Boards etc.


                                                                      75

8.    Having completed its assessment, the Subcommittee agrees that the people named in this report’s recommendations be appointed to the Community Funding Panels.

9.    Council is asked to appoint the Chairs of each Panel for an initial six month term, following which each Panel will elect its own Chair. 

10.  The delegations to the Community Funding Panels have been amended in accordance with the resolutions of the 26 May and 30 June 2020 Council meetings and are attached for information as Appendix 1.

Climate Change Impact and Considerations

11.  Climate change impacts are not considered relevant to consideration of this report which deals with an administrative matter.  

Consultation

12.  No consultation is required on this matter.

Legal Considerations

13.  Clauses 30 (1)(a) and (3), Part 1 of Schedule 7 of the Local Government Act 2002, deal with the ability of a local authority to appoint the committees, subcommittees and other subordinate decision-making bodies that it considers appropriate. Clause 32 (1) provides for the local authority to make delegations to a committee or other subordinate decision-making body.

Financial Considerations

14.  Community Funding Panel members (excluding councillors) will each receive an annual honorarium of $750 to cover expenses. The key responsibility of the Panels is to manage the Local Community Projects Fund and Community Engagement Fund. $120,000 per triennium, less the honorarium, has been budgeted for each Panel to spend on local community projects. The Community Engagement Fund is for smaller local activities and events and amounts to 40 cents per resident within the Ward boundaries. These amounts have been budgeted in Council’s Annual Plan.

 

Appendices

No.

Title

Page

1

Community Funding Panels Delegations, Guidelines and Criteria 2020-2023

77

    

 

 

 

 

 

 

 

Author: Joyanne Stevens

Contractor


                                                                      76

 

 

 

 

 

 

Reviewed By: Kathryn Stannard

Head of Democratic Services

 

 

 

Reviewed By: Wendy Moore

Head of Strategy and Planning

 

 

 

Approved By: Anna Welanyk

Director Transformation and Resources

 

 

 


Attachment 1

Community Funding Panels Delegations, Guidelines and Criteria 2020-2023

 

Community Funding Panels Delegations, Guidelines and Criteria 2020-2023

 

Membership:  7

 

5 community representatives, 1 Ward Councillor and a city-wide Councillor, with Alternate city-wide Councillors appointed to attend Community Funding Panel meetings as required or in the absence of the sitting city-wide Councillor.

 

Quorum:                              4 (to include a City Councillor)

Meeting Cycle:                  When required

Reports to:                         Community and Environment Committee (yearly)

 

This document records functions and responsibilities of Community Funding Panels (‘the Panels’). 

 

Purpose

 

The role of the Panels is that of community funders focused on supporting local projects and initiatives in their communities.

 

Function

 

·    Allocate and manage a Local Community Projects Fund.  

·    Allocate and manage the local Community Engagement Fund for the Central, Eastern, Northern and Western Wards to assist and support local community events and initiatives. L

 

Guidelines and criteria for Local Community Projects Funds:

 

·    To be used to fund one or more local community projects per triennium.

·    Projects are to develop community assets that are not able to be funded in Council’s Long Term Plan and/or Annual Plan.  

·    Community assets include, but are not limited to, playgrounds, street furniture, public art, tree planting, lighting, safety improvements, way finding, signage, improvements to existing public places and facilities.  These community assets should be in public spaces.

·    The development of new assets needs to be in accordance with Council strategies, policies and plans.

·    Where on-going maintenance and or other costs are required after completion, these need to be provided for.  This may be by way of formal agreement with the relevant division of Council.

·    Approval of spending must be by resolution of the Panels.

·    A report must be submitted, at the end of each financial year, to the Community and Environment Committee, detailing expenditure over the year.

Criteria for the panels to manage the Local Community Projects Fund:

·    See attached Appendix 1 for the internal process that must be followed to ensure appropriate officers receive information on projects and can provide feedback.

·    Projects must be supported by officers if there are on-going maintenance or other costs post completion.

·    Each Panel will agree and determine a process for determining how projects will be identified and how funding decisions will be made.

Criteria for the panels to manage the Community Engagement Fund

·    The fund is for local activities and events that directly benefit the communities concerned. 

·    To be eligible for funding the organisation must be a charitable trust or an incorporated society and the activity must take place within the Hutt. 

·    Panels may choose to allocate the entire fund in one funding round or they can have two funding rounds per annum.   An appropriate assessment sheet is used by members when determining which organisation(s) should receive funding.

·    The funds can be used towards the hire of equipment, advertising costs, purchasing food for a specific event.  Operational costs cannot be applied for.   

·    Council’s Community Funding Advisor is available to support and assist community groups when making applications through the Council’s online grants system.

Standing orders:

 

Hutt City Council’s Standing Orders apply, subject to the provisions for meeting quorum and decision making required to allocate and manage the Local Community Projects Fund and Community Engagement Fund.

 

Informal meetings and administration:

·    Where funding decisions are not being made, the Panels are encouraged to meet informally. 

·    Council’s Democratic Services Division will support each Panel by way of formal meeting administration, co-ordination and governance advice.

·    A senior member of Council’s staff will support each Panel.

CHAIRS

Chairs will be recommended to Council, following establishment of the Panels, for an initial period, following which the Panel will elect its Chair for the remainder of the triennium.  It is preferred that Councillors are not Chairs, although this is possible should no other panel member be able to commit to the role.

 

·    Organisations that are granted funding are responsible for completing an accountability form to report on the funds spent.

Appendix 1 - Checklist for Local Community Projects Fund

Attach project description/application to this checklist and email to relevant Manager(s).

 

Council Managers to complete:

 

1.      Do you support this project?  Yes or No (please circle)

2.      Do you have any initial concerns with this project?

3.      What needs to be taken into account when the panel is considering this project for funding? (bylaws, consents):

4.      Do you deem this to be a new asset? Yes or No (please circle)

If yes, does it align with Council’s strategic, policies or plans?

If no, why not?

 

5.      Is there budget set aside for this project?  Yes or No (please circle)

If yes, please state what year this funding will be made available:

Can you liaise with this group in your planning stages of this project, for their input
Yes or No (please circle)

If no, why not?

6.      Can this project be funded through Council’s Long Term Plan? Yes or No (please circle)

If no, why not:

7.      Will there be a maintenance budget, or other costs post completion, that need to be factored into this project? Yes or No (please circle)

If yes, please advise the amount required: