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MEMORANDUM OF UNDERSTANDING
BETWEEN
THE GOVERNMENT OF THE REPUBLIC OF INDONESIA
AND
THE GOVERNMENT OF AUSTRALIA
RELATING TO THE BAPEDAL WILAYAH DENPASAR INSTITUTIONAL
STRENGTHENING PROJECT IN INDONESIA
l.
GENERAL
THIS MEMORANDUM expresses the understanding of the Government of the Republic
of Indonesia (GOI) and the Government of Australia (GOA) concerning the responsibilities
and contributions, respectively of the two Governments in regard to the BAPEDAL
Wilayah Denpasar Institutional Strengthening Project (hereafter referred to as the Project)
located at Denpasar, Bali, in Indonesia. The Project is intended to strengthen the capacity
of BAPEDAL Wilayah in Denpasar to provide institutional and technical support to
Provincial Government, sectoral agencies and community groups in its region over a period
of 5 years as further described and detailed in Annex 1 to this Memorandum (Project
Activities).
2.
EXECUTING AUTHORITIES
The Executing Authorities for this Project will be:
For the GOI: BAPEDAL Pusat.
The Australian Agency for International Development of the
Department of Foreign Affairs and Trade (AusAID).
For the GOA:
AusAID may engage suitably qualified contractors to undertake any part of its obligations
under this Memorandum.
3. DEFINITIONS
For the purpose of the Memorandum:
(a)
"Activity" means any activity established cooperatively under the Program
and utilising one of the mechanisms described in Annex 1 to this
Memorandum.
(b)
"Australian Managing Contractor" means the organisation contracted by
AusAID on behalf of the GOA to implement the Program.
(c)
"Australian Program Manager" means the designated representative m
Indonesia of the Australian Managing Contractor.
(d)
"Australian Program personnel" means Australian nationals or permanent
residents or other persons who are not nationals or permanent residents of
Indonesia who are working in Indonesia on an Activity under this
Memorandum and whose salaries or other costs are funded from the
contribution of the GOA to the Activity.
(e)
"Australian firm" means Australian or other non-Indonesian firms,
organisations, institutions, or executing agencies engaged in an Activity.
(f)
"Australi.an program supplies" means equipment, material, and other goods
supplied for the execution of development Activities under this
Memorandum, the cost of which is funded from the contribution of the GOA
to the Activity.
(g)
"Dependant" means a spouse of a member of the Australian Program
personnel and the child of a member of the Australian Program personnel
who is:
(i)
under twenty-one years of age, or
(ii)
twenty-one years of age or older and dependant on the member of
the Australian personnel for support by reason of mental or physical
incapability.
The dependant referred to above will be certified as such by the Australian
Embassy in the Republic of Indonesia.
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(h)
"Intellectual Property" will have the meaning provided for in Article 2 of the
Convention establishing the World Intellectual Property Organisation, done
at Stockholm, 14 July 1967, and will include all rights relating to plant
varieties, confidential information, circuit layouts
and semi-conductor chip products, unregistered trade marks and service
marks.
4.
(i)
"Background Intellectual Property'' means Intellectual Property that has been
developed independently of an Activity and that is made available by one of
the Participants for use in an Activity.
U)
"Foreground Intellectual Property" means Intellectual Property created in, or
as a direct result of, an Activity.
(k)
"Implementing Arrangement" means the special arrangements for
Intellectual Property concluded in accordance with Paragraph 9 of this
Memorandum.
(I)
"Participant" means any natural person or legal entity participating m an
Activity, including the GOA and the GOI.
(m)
"Personal and Household effects" means equipment and other goods
imported by members of the Australian Program Personnel for the personal
use of Australian Program personnel or their Dependants.
MANAGEMENT
Responsibility for oversight of the Project will be vested in a Project Coordinating
Committee ("the Committee"). Membership of the Committee will be jointly determined
by the GOI and GOA appointees. The GOI will appoint the chairperson of the Committee,
and nominate representatives from other participating agencies, including Department of
Home Affairs, BAPPENAS, BAPEDAL Pusat, BAPEDAL Wilayah and Cabinet
Secretariat. The GOA will appoint as Committee members the Australian team leader and
a representative of the Australian Embassy, Jakarta. The Committee will meet not less than
twice a year. Its functions will include
(a) monitoring Project implementation through six-monthly meetings;
(b) providing top-level guidance and support in implementation;
(c) endorsing Annual Plans; and
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(d) advising the two Governments on Project progress, and recommending to the
Governments changes in the Project components budget and future direction.
5.
-
CONTRIBUTIONS
The contributions of the GOA and the GOI, as estimated in the Project Design Document
(December 1998), are detailed in Annexes 3 and 4 of this Memorandum and are estimated
to value A$ 7.585 million and A$ 1.01 million respectively. The GOA will meet all
Project costs in Year 1, and will fully fund all Australian and Project personnel costs for
the duration of the Project. In Years 2-5 non-Australian/Project personnel costs will be
shared between the GOI and GOA, with contributions determined on a sliding scale as per
Annex 5, Table 1. The Disbursement of Australian contributions will be subject to the
normal Australian annual parliamentary approval of appropriations.
6.
PHASING
Project implementation will be phased. The first year of the Project will focus on
developing a firm institutional foundation, and formulating a detailed plan for the
following four years. There will be four milestones or achievements in that first year:
i
•
The first Project milestone or achievement will be a ' Corporate Plan' or statement of
the roles and functions of the BAPEDAL Wilayah;
•
The second milestone which will follow from that process will be a training needs
analysis for the Wilayah office;
•
At the same time the Team Leader, Head of BAPEDAL Wilayah and other staff will
undertake the process of visiting and establishing communications links with all
provincial and district environmental management agencies, and appropriate
community groups, in the Region. The third milestone will be a report on that activity,
outlining the methodology for ongoing communication between BAPEDAL Pusat,
BAPEDAL
Wilayah,
and
the
provincial
and
district
agencies;
•
At the end of the first year the fourth milestone will be a ' risk management and
planning ' workshop in which representatives of all relevant agencies participate, and in
which the risks to the success of the Project are identified, the responsibilities of all
stakeholders are defined, and a plan for addressing these risks is established, along with
the action learning and formal training plan for the next year of the Project.
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At the time of the workshop AusAID and BAPEDAL Pusat will undertake an assessment
of the prog ress of the Project, and if the milestones have not been achieved, or if the risks
are determined by the stakeholders to be insurmountable, will terminate the Project at that
time. If the Project is proceeding as expected, AusAID will at that time determine the
likel y needs for ongoing monitoring, review or technical advice for the remainder of the
Project.
7.
FACILITATION
The GOI will provide personnel and facilities necessary to enable Australian Program
personnel to efficiently and economically carry out Project Activities. Without limiting the
generality of this paragraph such contributions will include:
(a)
(b)
(c)
access to line agency personnel, relevant facilities and related documentation;
provision of appropriate offices and work facilities for the implementation of each
Activity;
all necessary approvals and authorities relating to each Activity.
8.
EVALUATION
A joint monitoring, review and evaluation of project implementation may be made at times
mutually arranged between, and mutually convenient to, both Governments. Such an
evaluation wi II be carried out by a joint investigation team appointed by both Governments.
9.
INTELLECTUAL PROPERTY
(a)
Unless the two Governments otherwise decide, Activities will be conducted in
accordance with Implementing Arrangements which address the matters in this
Paragraph and in Annex 6.
(b)
Implementing Arrangements will provide for the protection of Background
Intellectual Property and Foreground Intellectual Property.
(c)
The GOI and the GOA will use their best endeavours to ensure that the Participants
will be entitled to any Foreground Intellectual Property in accordance with the
provisions specified in the Implementing Arrangements which w ill be developed
taking mto account:
(i)
the intellectual contributions of each Participant;
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I
(a)
(ii)
the financial contributions of each Participant;
(iii)
the contributions of Background Intellectual Property, materials, research
effort and preparatory work of each Participant;
(iv)
the facilities provided by each Participant;
(v)
legal considerations;
(vi)
objects of study and research activities; and
(vii) such other relevant considerations as the Participants may agree upon.
Implementing Arrangements will include provision for checking and protection
against infringement of Intellectual Property rights of third parties.
(b)
Unless the GOI and the GOA otherwise decide, Implementing Arrangements will
be legally binding documents.
(c)
The GOI and the GOA will use their best endeavours to ensure that prospective
Participants in an Activity enter into a confidentiality deed with each other before
they exchange information about their Intellectual Property.
10.
PUBLIC CHARGES
The GOI will ensure that Australian development cooperation funds are not used to pay
any taxes, customs duties or any other levies imposed by the GOI, on any goods, materials,
equipment, vehicles and services purchased or acquired for, or related to, the execution of
an Activity being carried out in the Republic oflndonesia.
11.
C LAIMS
The GOI will be responsible for dealing with any claims which may be brought by third
parties against the GOA, Australian Program personnel or Australian firms and will hold
harmless the GOA, Australian Program personnel and Australian firms in case of any
claims or liabilities resulting from this Memorandum. This provision will not relieve any
person or entity from liability from a criminal act, gross negligence, or wilful misconduct
on the part of that person or entity.
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12.
CLAIMS ARISING FROM SHORT TERM ATTACHMENTS IN
AUSTRALIA
(a)
The GOA undertakes to assume full responsibility for claims by third parties arising
from the conduct of GOI personnel while they are in Australia on short term
attachments under this Memorandum.
(b)
In return for the GOA's undertaking in paragraph (a), the GOI undertakes to
indemnify the GOA against reasonable payments made and all costs, damages and
expenses incurred by it as a result of any claims by third parties which may be
brought against such GOI personnel or the GOA, its officers or servants by any
third party arising from the conduct of such GOI personnel in Australia pursuant to
this Memorandum.
(c)
Paragraphs (a) and (b) will not apply where the liability results from a criminal act,
gross negligence or wilful misconduct on the part of that person.
13.
INCOME TAX
The income tax liability of Australian firms and Australian Program personnel will be
borne by the GOL
14.
PERSONNEL
The GOI will, in accordance with Law Number 7 of 1983 on Income Tax (as amended by
Law Number I 0 of 1994), Government Regulation Number 19 of 1995 and their
implementing regulations each as at the date of commencement of this Memorandum:
(a)
exempt the Australian Program personnel from, or bear the costs of, import
duties and other taxes imposed by the GOI on taxable goods and services or
import of taxable goods for, or related to, the execution of Activities under this
Memorandum; and
(b)
exempt Australian Program personnel from the payment of custom duties,
excise duties and other taxes in respect of bona fide Personal and Household
effects brought into the Republic of Indonesia within six months of his or her
first arrival in the Republic of Indonesia for their own use or the use of their
Dependants. In the event of theft, fire or other destruction, the exemptions
under this paragraph may be re-exercised at any time during the assignment of
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the Australian Program personnel. Australian personnel may purchase duty
free items provided that such purchases will be made from duty free stores.
15.
MOTOR VEHICLES FOR PERSONAL USE
1.
The GOI will, in accordance with Government Regulation Number 19 of 1955 and
its implementing regulations each as at the date of entry into force of this Memorandum,
exempt from, or bear the cost of, customs duties, and other taxes in respect of one locally
assembled motor vehicle purchased for an Australian Program personnel's personal use
provided that:
(a)
the Australian Program personnel is assigned in Indonesia for at least twelve
(12) months consecutively;
(b)
such motor vehicle is purchased locally within the period of six (6) months
from the date of his/her first arrival in the Republic of Indonesia; and
(c)
upon completion of his/her assignment, the motor vehicle is disposed of in
Indonesia either to a person who has the same privileges or to the agent
authorised by the GOI.
2.
In the event of fire, theft, damage or destruction, the exemptions under this Article
may be re-exercised provided the remaining assignment of the Australian Program
personnel is for at least eight (8) months.
16.
TRANSPARENCY OF LAWS
The GOI will, upon request, inform Australian firms and Australian Program personnel of
local laws and regulations which may concern them in the performance of their duties. The
GOI will notify the GOA of any changes in its law and regulations and will inform the
GOA of the application of such changes. If either Government considers it appropriate, the
two Governments will consult to find a mutually acceptable solution concerning such
changes.
17.
EQUALITY OF TREATMENT
Australian firms, Australian Program Personnel and their Dependants will be accorded no
lesser benefits, privileges and exemptions than those accorded to other non-Indonesian
firms or nationals under any other bilateral arrangement for development cooperation.
l
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18.
SECURITY
The GOI will arrange for protective services necessary to ensure the safety of:
(a)
(b)
19.
the Australian Program Personnel, their Dependants, their property;
and
Australian Program supplies.
SETTLEMENT OF DIFFERENCES
Differences which may arise relating to the interpretation or application of the provisions
of this Memorandum will be settled by means of negotiations between the GOI and the
GOA or in any other manner mutually agreed upon.
20.
AMENDMENTS
Amendments to this Memorandum may be made at any time by an arrangement in writing
between the two Governments.
21.
COMMENCEMENT
This Memorandum will take effect from the date of its signature and the Project will be
deemed to have commenced from that date. The Australian contribution to the Project and
all undertakings given herein will cease 5 years after the date of signature of this
Memorandum or on such other date as may subsequently be arranged between the two
Governments.
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ANNEXURES to this Memorandum form an integral pan of it.
IN WITNESS WHEREOF, the undersigned, duly authorised by their respective
Governments, have signed this Memorandum.
SIGNED in duplicate, at Nusa Dua - Bali on this 24th day of February in the year of one
thousand nine hundred ninety nine, in two (2) originals of the English language, both of the
texts being equally authentic.
FOR Tl IE GOVERNMENT OF
THE REPUBLIC OF INDONESIA
FOR THE GOVERNMENT OF
AUSTRALIA
Signed
Signed
ALI ALATAS
MINISTER FOR FOREIGN AFFAIRS
THE HON ALEXANDER DOWNER MP
MINISTER FOR FOREIGN AFFAIRS
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ANNEX 1
AUSTRALIA- INDONESIA DEVELOPMENT CO-OPERATION PROGRAM
BAPEDAL WILAYAH DENPASAR lNSTITUTIONAL STRENGTHENING
PROJECT
EXECUTIVE SUMMARY
Project Objective
The Project is intended to strengthen the capacity of BAPEDAL Wilayah in Denpasar to
provide institutional and technical support in environmental management to Provincial
Government, sectoral agencies and community groups in its region.
Project Origin
In 1997 the Government of Indonesia sought assistance from Australia to strengthen the
capability of its Environmental Impact Management Agency (BAPEDAL) Region II
centred in Denpasar Bali. Region II includes the Provinces of Bali, East Nusa Tenggara,
West Nusa Tenggara and East Timar. The request followed a review of the Australianfunded East Java Pollution Control Implementation Project (PCI) in February 1997 which
recommended consideration of further assistance for the newly established BAPEDAL
Wilayah Region II office based in Denpasar.
The December 1997 BAPEDAL Wilayah Denpasar Feasibility and Design Study
recommended that Australia support a five year program aimed at strengthening the ability
of BAPEDAL Region II to provide technical guidance and laboratory support to provincial
staff responsible for pollution control and environmental management.
Rationale
There is a pressing need for the development of environmental management programs in
the provinces of Bali, Nusa Tenggara Barat, Nusa Tenggara Timur and Timor Timur,
particularly the latter three. Australia has a strategic opportunity to assist the Government
of Indonesia strengthen the institutions with responsibility for managing environmental
issues at the regional and provincial levels in the Eastern Islands.
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Strengthening the ability of BAPEDAL Wilayah to act as a representative office of
BAPEDAL Pusat will support the national environmental program and provide technical
guidance within that framework for the Department of Home Affairs and other sectoral
agencies which also have environmental responsibilities.
Project Description
The overall objective of the Project is to strengthen BAPEDAL Wilayah Denpasar' s
capacity to provide institutional and technical support in environmental management to
Provincial Government, environment agencies and community groups in its region. The
Project is designed to incorporate a consultative approach, particularly in the initial stages,
as BAPEDAL Wilayah develops corporate and strategic plans. Activities associated with
developing the corporate plan will also provide opportunities to assess the viability of the
Project, given the risk of a lack of support from Home Affairs. The Project is designed
around action learning programs and local environment Projects to provide a learning
experience which also addresses specific environmental issues. These programs will be
supplemented by other off site training in order to build both organisational confidence and
technical capability in the Wilayah and in other agencies responsible for environmental
management. The BAPEDAL Wilayah Denpasar Institutional Strengthening Project
Design Document (December 1998) agreed between the GOA and GOI provides the
guiding reference for the Project.
Key features of the Project include:
•
•
•
•
•
•
Institutional strengthening and capacity building in BAPEDAL Wilayah Region II
through formal training, work attachments and on-the job-training.
Institutional strengthening of agencies at the Regional and Provincial levels of
government through the provision of practical training programs and agencies'
participation in targeted environmental improvement Projects
A focus on agencies and staff with existing responsibilities for environmental
management in anticipation of the formation of BAPEDALs at the Provincial level
(BAPEDALDA)
No dependence on the establishment of BAPEDALDAs
Integration of poverty alleviation and gender equity within environmental
improvement, training and community education activities.
Complementarity with other donor and aid projects, including Australian development
projects.
The Project is structured to include three major components:
l.
Capacity Building in BAPEDAL Wilayah
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2.
3.
Capacity Building for Environmental Programs in the Eastern Islands
Project Management
Component 1 - Capacity Building - BAPEDAL Wilayah
This component aims to develop BAPEDAL Wilayah ' s corporate planning process and to
improve BAPEDAL Wilayah' s technical capacity to plan and coordinate environmental
management activities in the Eastern Islands. This will give BAPEDAL Wilayah the
experience necessary to:
• plan, manage and deliver training
• plan, manage and deliver environmental programs at the provincial level
• plan, develop and monitor community education and environmental awareness programs
Component 2 - Capacity Building for Environmental Programs in the Eastern Islands
This component seeks to assist BAPEDAL Wilayah undertake its role of providing
technical guidance and laboratory support to provincial and local government agencies
responsible for environmental control and management. It will also involve community
groups in the identification of problems and the implementation of solutions.
Activities will focus on environmental issues in the following areas:
• coastal zone management, including mangroves, coral reefs and aquaculture
• marine pollution control, including hotels, beaches, oil clean ups and the national
program Pantai Lestari
• land management and rehabilitation including C-class mining, critical land, agriculture
and forestry practices
• environmental management planning including AMDAL
• urban waste management including domestic solid, domestic liquid waste and
AD IP URA
• industrial waste control including home, small and large scale industry, hazardous and
toxic waste, and PROPER PROKASIH
• water quality control including rivers, lakes, ground water and PROKASIH
• air pollution control including Langit Biru
• pollution prevention strategies including cleaner production
Component 3 - Project Management
This component will manage and coordinate Project inputs in a timely manner and within
budget. An important sub-component will be the liaison and coordination between
BAPEDAL Pusat, BAPEDAL Wilayah Region II and other BAPEDAL Wilayah offices.
The effects of this coordination effort will be reflected in the development of BAPEDAL
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ｾ＠
..
Wilayah's corporate plan (under Component 1) and Project annual plans. Of equal
importance will be liaison and coordination with other donor and aid programs in the
environment sector to avoid duplication and ensure complementarity between programs. A
strong emphasis on community involvement and education in identifying issues,
developing strategies, implementing solutions and monitoring results to maximise its
sustainability and long term effectiveness.
The Project will also extend the support provided by Australia to educational development
in the Eastern Islands through the Eastern Universities Project and previous educational
projects. This will be done through the training activities that constitute Components I and
2 of the Project, though the focus will be less academic than in previous projects. The
Project is designed to assist BAPEDAL Wilayah Region II in the improvement of staff
technical and administrative skills, while other environmental agencies at provincial and
district levels will benefit from field-based, on-the-job training designed to find solutions to
environmental problems.
Resource requirements for the Project will be consistent with the Government of
Indonesia's policy of zero growth of the civil service. The limitations on recruiting new
and more appropriately qualified staff mean that training in fundamental and practical
aspects of pollution control is extremely important.
Beneficiaries of the Project
Beneficiaries of the proposed Project include BAPEDAL Wilayah Region II, provincial
and district government agencies involved in environmental management, women and
community groups and the Eastern Islands environment. In the longer term, responsibility
and effective environmental management and control will also alleviate health and food
production problems associated with poverty, as well as addressing environmental
problems associated with small industrial activities.
Implementation
The overall responsibility for the management of the GOA inputs will be vested with an
Australian Managing Contractor (referred to as the AMC or 'the Contractor'). The AMC
will appoint a Project Director who will oversee the implementation of the Project in
Australia and Indonesia. The implementation in Indonesia will be the responsibility of the
Australian Project Team Leader, appointed by the AMC, who will be based in Denpasar.
Coordination activities in Jakarta will be the responsibility of the Environmental Project
Coordinator - Jakarta who will be based in BAPEDAL.
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Implementation of the Project will be the responsibility of the Australian long-term and
short-term advisers. The Project is to support the development of BAPEDAL Wilayah,
BAPEDAL and BAPEDALDA and associated agencies.
These agencies have
responsibility for management and enforcement. It is therefore important that the
Australian advisers are from a background and culture of enforcement and not purely
management.
Financing
The contributions of the GOA and the GOI are detailed in Annexes 3 and 4 of this
Memorandum and are estimated to value A$ 7.585 million and A$ 1.01 million
respectiveJy. Disbursement of Australian contributions will be subject to the normal
Australian annual parliamentary approval of appropriations.
15
ANNEX 2
KEY RESPONSIBILITIES
1.
Government of Indonesia
1.1
BAPEDAL Pusat as Executing Authority for the Project will have the following
key responsibilities:
(a) Securing and ensuring the disbursement of GOI contributions to the overall
Project budget, including budgets for local training, procurement, travel and
other counterpart costs;
(b) Liaison and negotiation with central agencies to determine program funding for
the cost of major works and other physical implementation costs associated with
environmental management activities to be carried out by BAPEDAL Wilayah
Denpasar (with the exception of action-learning related activities, these costs
will not be met by the Project);
(c) Releasing of counterpart BAPEDAL Pusat and Wilayah staff to participate in
Project activities including the corporate planning process, project management,
training and consultations with provincial and district environmental agencies
and community groups;
(d) Nominating the Chairperson and GOI representatives on the Project
Coordinating Committee;
( e) Sharing information on departmental activities essential to the Project capacity
building process, such as annual development project proposal lists (DUP) and
approval lists (DIP);
(f) Ensuring consultation with community groups and other stakeholders on Project
activities
(g) Ensuring integration of the Australian Project team into the BAPEDAL Wilayah
office; and
(h) Coordination and liaison between this Project and other related projects in the
environmental management field.
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2.
Government of Australia
2.1
The Australian Agency for International Development of the Department of Foreign
Affairs and Trade (AusAID) as the Executing Authority for the Project will have
the following key responsibilities:
(a) Selecting an Australian Managing Contractor (the Contractor) to provide overall
management and administration for this Project;
(b) Nominating Australian representatives on the Project Coordinating Committee;
(c) Approval of individual activities and budgets;
(d) Monitoring, reviewing and evaluating Project implementation;
( e) seeking accreditation for consultants
(f) monitoring Australian Managing Contractor performance in-country; and
(g) processing payments to the Australian Managing Contractor.
2.2
The Contractor will have responsibility for:
(a) Monitoring the performance of the Project against agreed outcomes and provide
direction to ensure its objectives are met;
(b) Providing a high level of advice to AusAID and the GOI on the risks associated
with the Project and the performance of the Project;
(c) Selecting and appointing Australian and Indonesian resources for input to the
Project;
(d) Establishing and ensuring maintenance of project management, administration,
financial and reporting systems;
(e) Directing and monitoring all aspects of the progress of the Project, including the
activities and performance of all advisers;
(f) Regularly reporting on progress against performance targets in line with
contractual requirements and constraints on delivery;
l
17
Q:fl).
(g) Where appropriate, authorise equipment and material to be supplied as part of
the Project;
(h) Preparing Annual Plans for the Project, in consultation with the Head of
BAPEDAL Wilayah;
(i) Assisting BAPEDAL Wilayah staff in providing on-the-job training to
provincial and local government staff and community groups;
(j) Assisting government agencies and community groups to undertake small
projects;
(k) Selecting and manage local professional, technical and administrative resources
for the Project; and
(1) Representing the Project on relevant coordination committees and other
mechanisms established to assist with Project implementation.
2.3
Sub-contractors
(a) Implementation of activities in accordance with specific TOR; and
(b) Liaison with the Australian Managing Contractor in regard to all matters
affecting performance and payment.
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ANNEX3
CONTRIBUTION OF THE GOVERNMENT OF AUSTRALIA
l.
Financial Contribution
1.1
The GOA will make a contribution to the Project totalling an estimated A$ 7.585
million over a five year period. Disbursements of Project funds will be subject to
the prevailing annual budget appropriations. Any changes will be notified to the
GOI. The contribution of the GOA are described below. Details of financial
contributions by the GOA and GOI are set out in Annex 5 to this Memorandum (as
agreed in the Project Design Document December 1998).
2.
Personnel
2. l
The GOA will provide accommodation, travel costs and remuneration for all
Australian and locally engaged staff assigned to the Project. The staff include:
(a) Project Director;
(b) Team Leader;
( c) Institutional Adviser;
( d) Community Development and Participation Adviser;
( e) Environment and Land Management Adviser;
(f) Necessary locally engaged staff;
(g) Short-term specialist advisers . Depending on the skills and experience of the
long term advisers, a range of short-term specialists may be required to provide
management advice and on-the-job training in the following disciplines:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
L
Agriculture
Coastal zone and marine management
Land/watershed management and soil conservation
Law enforcement
fisheries
Solid waste management
Mining
Oil spills
Road engineering
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(x)
(xi)
(xii)
Community education
Geographic Information Systems
Media.
3.
Training
3 .1
The Project design provides for maximum flexibility in the choice of training
mechanisms available under Project funding. The design provides for formal incountry short term training, workshops, seminars, conferences, developing learning
links with similar projects and in-Australia study tours, courses and work
assignments. Some of these courses and seminars will be suitable for staff from
BAPEDALDA and other Daerah.
3.2
In-Indonesia Training: In Year 1, the GOA will cover all travel, accommodation
and participation costs associated with staff participation in in-Indonesia Project
training, work shops or study tours . In Years 2-5 these costs will be shared between
the GOI and GOA, with contributions determined on a sliding scale as per Annex 5,
Table 1.
3.3
In-Australia Training: For the duration of the Project, the GOA will pay for the
travel, accommodation and per diems for all Indonesian participants on in-Australia
Project training, work shops or study tours. The GOA will provide airfares and
allowances, at current AusAID rates, to participants to enable them to travel to
Australia and cover the costs of living.
3.4
Selection of candidates to be involved in overseas training will be done through
BAPEDAL' s training selection process.
4.
Procurement, Maintenance and Project Management
4. l
In Year 1 of the Project, the GOA will provide funding to the Contractor for all
vehicles, maintenance, equipment and materials to be allocated and used in
accordance with the Project Design Document. This will include additional airconditioning, office upgrading, and new communications and office equipment
required to support the Project team and equipment at the BAPEDAL Wilayah
Region II office in Denpasar.
4.2
In Years 2-5 equipment costs will be shared between the GOI and GOA, with
contributions determined on a sliding scale as per Annex 5, Table 1. Shared costs
will include procurement of equipment and maintenance on new vehicles and
computers provided under the Project. Vehicle use will be shared between GOI
staff and Project team members.
20
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ANNEX4
CONTRIB UTION OF THE GOVERNMENT OF THE REPUBLIC OF INDONESIA
l.
Financial Contribution
I. I
The contribution of the GOI is estimated in the Project Design Document to value
A$ I. 01 million and is described below. Details of the apportionment of financial
contributions by the GOA and GOI are set out in Annex 5 to this Memorandum (as
agreed in the Project Design Document December 1998).
2.
Personnel
2. I
The GOI will nominate a Counterpart Team Leader at BAPEDAL Wilayah
Denpasar who will work closely with the Australian Project team. However, it is
expected that this position will not be required to act in the Project role on a fulltime basis. BAPEDAL Pusat will nominate an Environmental Project Coordinator
- Jakarta who will be responsible for coordination activities in Jakarta. Other
counterpart staffing requirements will be identified during Year 1 of the Project and
agreed between the GOI and GOA before the commencement of Year 2. The
Project will not impose a requirement for additional GOI personnel resources.
3.
Tra ining
3.1
In-Indonesia Training: The GOI will provide the following in-kind contributions in
full for the duration of the Project:
3.2
(a)
appropriately located and furbished training facilities, free of rent and other
charges;
(b)
counterpart trainers and/or training participants for the delivery of courses
and other Project related training activities;
(c)
Project training-related utility charges; and
(d)
incidental costs associated with in-Australia training, including passport
formalities, provision of exit permits and provision of FISKAL exemptions
for all participants.
Australia will meet all other Project training costs in Year 1 of the Project. In Years
2-5 these other costs will be shared between the GOI and GOA, with contributions
determined on a sliding scale as per Annex 5, Table I, including travel,
22
4.3
The GOA will also fund the costs of overall project management in accordance with
the Project Design Document and the Contract.
21
accommodation and per diems for all participants on in-Indonesia Project training,
action learning demonstration exercises, seminars and workshops.
4.
Procurement and Maintenance
4. l
The GOA will meet all procurement and maintenance costs associated with the
Project in Year 1. In Years 2-5 these costs will be shared between the GOI and
GOA, with contributions determined on a sliding scale as per Annex 5, Table 1.
Shared costs will include procurement of equipment and maintenance on Projectprocured vehicles and computers.
5.
Office Accommodation and Services
5.1
The GOI will meet all costs associated with the following office and services
expenses for the full duration of the Project:
a) reasonable office space for the Project headquarters in the BAPEDALDA
Wilayah Region II office;
b) utilities charges and rent for office accommodation;
c) operation and maintenance costs of existing GOI vehicles used for Project
purposes; and
d) costs associated with the Project Coordinating Committee meetings, including
salaries of GOI staff involved and venues for meetings. This also includes
attendance fees, food and beverages for other Project-related meetings.
5.2
I
The GOI will also disseminate relevant information about training opportunities and
other Project activities.
23
ANNEX 5
ACTIVITY COST ESTIMATES
5.1
The GOA will meet all costs of Australian Project personnel for the duration
of the Project. As Project partners, the GOA and GOI will share the costs of
the remaining Project cost components (that is, procurement, training and
other costs), as scheduled in Table 1. The GOA will meet all Project costs in
Year 1 of the Project. Over the period Year 2 to Year 5 of the Project, the
GOI's contribution to Project costs (with the exception of Australian
personnel) will be introduced through progressive phasing.
The GOI
contribution will commence at 20 per cent of non-personnel costs, including
office telephone and electricity costs in Year 2; 40 per cent in Year 3; 60 per
cent in Year 4; and 80 per cent in Year 5.
5.2
During Year I of the Project the Contractor will clearly identify all proposed
GOI and GOA contributions for Years 2-5 for consideration at the Planning
and Risk Management Workshop to be convened by AusAID and BAPEDAL
Pusat at the end of Year 1 of the Project.
5.3
The estimated cost of the Project are:
Total GOA contribution (est.): A$ 7.585 million
Total GOI contribution (est.): A$ l.01 million
Total (est.):
A$ 8.593 million
TABLE 1: Detailed Estimates of Total Activity Cost
Year 1
Year 2
Year 3
Year4
Year 5
Total
100
0
100
0
100
80
20
100
0
60
40
100
0
40
60
100
0
20
80
100
0
62
38
754.00 1295.33
0.00
0.00
200.40
246.90
0.00
61.73
210.08
300.13
0.00
75.03
67.20
53.76
0.00
150.20
1231.68 2046.33
1295.33
0.00
56.43
37.62
189.10
126.07
40.32
190.57
1771.76
1295.33
0.00
37.62
56.43
126.07
189.10
26.88
285.85
1771.76
1295.33
0.00
18.81
75.25
63.03
252.13
13.44
381.14
1771.76
5935.33
0.00
560.17
231.03
888.42
642.33
201.60
1007.76
8593.28
Contributions bl£ Government
Australian Percentage Personnel
Indonesian Percentage Personnel
Australian Percentage Other Elements
Indonesian Percentage Other Elements
Australian Contribution Personnel
Indonesian Contribution Personnel
Australian Contribution Procu rement
Indonesian Contribution Procurement
Austra lian Contribution Training
Indonesian Contribution Training
Australian Contribution Other
Indonesian Contribution Total
Total Project
0
ANNEX 6
PROTECTION, OWNERSHIP AND ALLOCATION OF INTELLECTUAL
PROPERTY BY PARTICIPANTS IN ACTIVITIES UNDER THIS
MEMORANDUM
1.
This Annex provides an indication of the Intellectual Property issues that
should be addressed by Participants in the Implementing Arrangements.
2.
Notwithstanding anything stated or implied in this Annex, it is the sole
responsibility of prospective and actual Participants to take all necessary steps,
including obtaining expert professional advice, to ensure that their legal and
commercial positions are adequately protected and to ensure adequate legal
and physical protection for Background Intellectual Property and Foreground
Intellectual Property.
3.
Implementing Arrangements should contain clauses that :
(a)
specify appropriate procedures for checking(i)
prior to the commencement of the Activity; and
(ii)
as appropriate during the Activity;
for third party Intellectual Property that might:
be infringed by the Participants while carrying out
Activities; or
infringe Intellectual Property
Implementing Arrangement.
(b)
(c)
created
under
the
identify each Participant's Background Intellectual Property and:
(i)
the nature of the protection that has been or needs to be,
accorded to that Background Inteilectual Property; and
(ii)
the nature of any third party rights restricting the use of
Background Intellectual Property;
specify appropriate procedures for:
(i)
identifying;
(ii)
determining ownership of; and
(iii)
protecting;
Foreground Intellectual Property;
(d)
specify appropriate procedures for approving the conditions on which
each Participant may be licensed to use Foreground Intellectual
Property for its own non-commercial purposes (which purposes
exclude sub-licensing and commercial purposes such as manufacturing
and having manufactured) and for commercial purposes;
(e)
specify appropriate clauses allowing a Participant to be licensed to use
another Participant's Background Intellectual Property when it is
reasonably necessary for the commercial use of Foreground
Intellectual Property;
(f)
specify appropriate procedures for licensing third parties to use
Foreground Intellectual Property, including where such use requires
access to another Participant's Background Intellectual property and
the conditions upon which a licence to the Background Intellectual
Property will be granted;
(g)
specify appropriate procedures for approval by all the Participants,
prior to
disclosure, of the public disclosure of information
through publications, seminars or any other means;
(h)
specify the rights and obligations of visiting researchers involved in
the Activity and particularly in relation to Intellectual Property created
by them during their work in the Activity;
(i)
nominate the governing law of the implementing Arrangement; and
(j)
specify appropriate procedures for the resolution of disputes, including
international commercial arbitration.
BETWEEN
THE GOVERNMENT OF THE REPUBLIC OF INDONESIA
AND
THE GOVERNMENT OF AUSTRALIA
RELATING TO THE BAPEDAL WILAYAH DENPASAR INSTITUTIONAL
STRENGTHENING PROJECT IN INDONESIA
l.
GENERAL
THIS MEMORANDUM expresses the understanding of the Government of the Republic
of Indonesia (GOI) and the Government of Australia (GOA) concerning the responsibilities
and contributions, respectively of the two Governments in regard to the BAPEDAL
Wilayah Denpasar Institutional Strengthening Project (hereafter referred to as the Project)
located at Denpasar, Bali, in Indonesia. The Project is intended to strengthen the capacity
of BAPEDAL Wilayah in Denpasar to provide institutional and technical support to
Provincial Government, sectoral agencies and community groups in its region over a period
of 5 years as further described and detailed in Annex 1 to this Memorandum (Project
Activities).
2.
EXECUTING AUTHORITIES
The Executing Authorities for this Project will be:
For the GOI: BAPEDAL Pusat.
The Australian Agency for International Development of the
Department of Foreign Affairs and Trade (AusAID).
For the GOA:
AusAID may engage suitably qualified contractors to undertake any part of its obligations
under this Memorandum.
3. DEFINITIONS
For the purpose of the Memorandum:
(a)
"Activity" means any activity established cooperatively under the Program
and utilising one of the mechanisms described in Annex 1 to this
Memorandum.
(b)
"Australian Managing Contractor" means the organisation contracted by
AusAID on behalf of the GOA to implement the Program.
(c)
"Australian Program Manager" means the designated representative m
Indonesia of the Australian Managing Contractor.
(d)
"Australian Program personnel" means Australian nationals or permanent
residents or other persons who are not nationals or permanent residents of
Indonesia who are working in Indonesia on an Activity under this
Memorandum and whose salaries or other costs are funded from the
contribution of the GOA to the Activity.
(e)
"Australian firm" means Australian or other non-Indonesian firms,
organisations, institutions, or executing agencies engaged in an Activity.
(f)
"Australi.an program supplies" means equipment, material, and other goods
supplied for the execution of development Activities under this
Memorandum, the cost of which is funded from the contribution of the GOA
to the Activity.
(g)
"Dependant" means a spouse of a member of the Australian Program
personnel and the child of a member of the Australian Program personnel
who is:
(i)
under twenty-one years of age, or
(ii)
twenty-one years of age or older and dependant on the member of
the Australian personnel for support by reason of mental or physical
incapability.
The dependant referred to above will be certified as such by the Australian
Embassy in the Republic of Indonesia.
2
(h)
"Intellectual Property" will have the meaning provided for in Article 2 of the
Convention establishing the World Intellectual Property Organisation, done
at Stockholm, 14 July 1967, and will include all rights relating to plant
varieties, confidential information, circuit layouts
and semi-conductor chip products, unregistered trade marks and service
marks.
4.
(i)
"Background Intellectual Property'' means Intellectual Property that has been
developed independently of an Activity and that is made available by one of
the Participants for use in an Activity.
U)
"Foreground Intellectual Property" means Intellectual Property created in, or
as a direct result of, an Activity.
(k)
"Implementing Arrangement" means the special arrangements for
Intellectual Property concluded in accordance with Paragraph 9 of this
Memorandum.
(I)
"Participant" means any natural person or legal entity participating m an
Activity, including the GOA and the GOI.
(m)
"Personal and Household effects" means equipment and other goods
imported by members of the Australian Program Personnel for the personal
use of Australian Program personnel or their Dependants.
MANAGEMENT
Responsibility for oversight of the Project will be vested in a Project Coordinating
Committee ("the Committee"). Membership of the Committee will be jointly determined
by the GOI and GOA appointees. The GOI will appoint the chairperson of the Committee,
and nominate representatives from other participating agencies, including Department of
Home Affairs, BAPPENAS, BAPEDAL Pusat, BAPEDAL Wilayah and Cabinet
Secretariat. The GOA will appoint as Committee members the Australian team leader and
a representative of the Australian Embassy, Jakarta. The Committee will meet not less than
twice a year. Its functions will include
(a) monitoring Project implementation through six-monthly meetings;
(b) providing top-level guidance and support in implementation;
(c) endorsing Annual Plans; and
3
(d) advising the two Governments on Project progress, and recommending to the
Governments changes in the Project components budget and future direction.
5.
-
CONTRIBUTIONS
The contributions of the GOA and the GOI, as estimated in the Project Design Document
(December 1998), are detailed in Annexes 3 and 4 of this Memorandum and are estimated
to value A$ 7.585 million and A$ 1.01 million respectively. The GOA will meet all
Project costs in Year 1, and will fully fund all Australian and Project personnel costs for
the duration of the Project. In Years 2-5 non-Australian/Project personnel costs will be
shared between the GOI and GOA, with contributions determined on a sliding scale as per
Annex 5, Table 1. The Disbursement of Australian contributions will be subject to the
normal Australian annual parliamentary approval of appropriations.
6.
PHASING
Project implementation will be phased. The first year of the Project will focus on
developing a firm institutional foundation, and formulating a detailed plan for the
following four years. There will be four milestones or achievements in that first year:
i
•
The first Project milestone or achievement will be a ' Corporate Plan' or statement of
the roles and functions of the BAPEDAL Wilayah;
•
The second milestone which will follow from that process will be a training needs
analysis for the Wilayah office;
•
At the same time the Team Leader, Head of BAPEDAL Wilayah and other staff will
undertake the process of visiting and establishing communications links with all
provincial and district environmental management agencies, and appropriate
community groups, in the Region. The third milestone will be a report on that activity,
outlining the methodology for ongoing communication between BAPEDAL Pusat,
BAPEDAL
Wilayah,
and
the
provincial
and
district
agencies;
•
At the end of the first year the fourth milestone will be a ' risk management and
planning ' workshop in which representatives of all relevant agencies participate, and in
which the risks to the success of the Project are identified, the responsibilities of all
stakeholders are defined, and a plan for addressing these risks is established, along with
the action learning and formal training plan for the next year of the Project.
4
At the time of the workshop AusAID and BAPEDAL Pusat will undertake an assessment
of the prog ress of the Project, and if the milestones have not been achieved, or if the risks
are determined by the stakeholders to be insurmountable, will terminate the Project at that
time. If the Project is proceeding as expected, AusAID will at that time determine the
likel y needs for ongoing monitoring, review or technical advice for the remainder of the
Project.
7.
FACILITATION
The GOI will provide personnel and facilities necessary to enable Australian Program
personnel to efficiently and economically carry out Project Activities. Without limiting the
generality of this paragraph such contributions will include:
(a)
(b)
(c)
access to line agency personnel, relevant facilities and related documentation;
provision of appropriate offices and work facilities for the implementation of each
Activity;
all necessary approvals and authorities relating to each Activity.
8.
EVALUATION
A joint monitoring, review and evaluation of project implementation may be made at times
mutually arranged between, and mutually convenient to, both Governments. Such an
evaluation wi II be carried out by a joint investigation team appointed by both Governments.
9.
INTELLECTUAL PROPERTY
(a)
Unless the two Governments otherwise decide, Activities will be conducted in
accordance with Implementing Arrangements which address the matters in this
Paragraph and in Annex 6.
(b)
Implementing Arrangements will provide for the protection of Background
Intellectual Property and Foreground Intellectual Property.
(c)
The GOI and the GOA will use their best endeavours to ensure that the Participants
will be entitled to any Foreground Intellectual Property in accordance with the
provisions specified in the Implementing Arrangements which w ill be developed
taking mto account:
(i)
the intellectual contributions of each Participant;
5
I
(a)
(ii)
the financial contributions of each Participant;
(iii)
the contributions of Background Intellectual Property, materials, research
effort and preparatory work of each Participant;
(iv)
the facilities provided by each Participant;
(v)
legal considerations;
(vi)
objects of study and research activities; and
(vii) such other relevant considerations as the Participants may agree upon.
Implementing Arrangements will include provision for checking and protection
against infringement of Intellectual Property rights of third parties.
(b)
Unless the GOI and the GOA otherwise decide, Implementing Arrangements will
be legally binding documents.
(c)
The GOI and the GOA will use their best endeavours to ensure that prospective
Participants in an Activity enter into a confidentiality deed with each other before
they exchange information about their Intellectual Property.
10.
PUBLIC CHARGES
The GOI will ensure that Australian development cooperation funds are not used to pay
any taxes, customs duties or any other levies imposed by the GOI, on any goods, materials,
equipment, vehicles and services purchased or acquired for, or related to, the execution of
an Activity being carried out in the Republic oflndonesia.
11.
C LAIMS
The GOI will be responsible for dealing with any claims which may be brought by third
parties against the GOA, Australian Program personnel or Australian firms and will hold
harmless the GOA, Australian Program personnel and Australian firms in case of any
claims or liabilities resulting from this Memorandum. This provision will not relieve any
person or entity from liability from a criminal act, gross negligence, or wilful misconduct
on the part of that person or entity.
6
12.
CLAIMS ARISING FROM SHORT TERM ATTACHMENTS IN
AUSTRALIA
(a)
The GOA undertakes to assume full responsibility for claims by third parties arising
from the conduct of GOI personnel while they are in Australia on short term
attachments under this Memorandum.
(b)
In return for the GOA's undertaking in paragraph (a), the GOI undertakes to
indemnify the GOA against reasonable payments made and all costs, damages and
expenses incurred by it as a result of any claims by third parties which may be
brought against such GOI personnel or the GOA, its officers or servants by any
third party arising from the conduct of such GOI personnel in Australia pursuant to
this Memorandum.
(c)
Paragraphs (a) and (b) will not apply where the liability results from a criminal act,
gross negligence or wilful misconduct on the part of that person.
13.
INCOME TAX
The income tax liability of Australian firms and Australian Program personnel will be
borne by the GOL
14.
PERSONNEL
The GOI will, in accordance with Law Number 7 of 1983 on Income Tax (as amended by
Law Number I 0 of 1994), Government Regulation Number 19 of 1995 and their
implementing regulations each as at the date of commencement of this Memorandum:
(a)
exempt the Australian Program personnel from, or bear the costs of, import
duties and other taxes imposed by the GOI on taxable goods and services or
import of taxable goods for, or related to, the execution of Activities under this
Memorandum; and
(b)
exempt Australian Program personnel from the payment of custom duties,
excise duties and other taxes in respect of bona fide Personal and Household
effects brought into the Republic of Indonesia within six months of his or her
first arrival in the Republic of Indonesia for their own use or the use of their
Dependants. In the event of theft, fire or other destruction, the exemptions
under this paragraph may be re-exercised at any time during the assignment of
7
the Australian Program personnel. Australian personnel may purchase duty
free items provided that such purchases will be made from duty free stores.
15.
MOTOR VEHICLES FOR PERSONAL USE
1.
The GOI will, in accordance with Government Regulation Number 19 of 1955 and
its implementing regulations each as at the date of entry into force of this Memorandum,
exempt from, or bear the cost of, customs duties, and other taxes in respect of one locally
assembled motor vehicle purchased for an Australian Program personnel's personal use
provided that:
(a)
the Australian Program personnel is assigned in Indonesia for at least twelve
(12) months consecutively;
(b)
such motor vehicle is purchased locally within the period of six (6) months
from the date of his/her first arrival in the Republic of Indonesia; and
(c)
upon completion of his/her assignment, the motor vehicle is disposed of in
Indonesia either to a person who has the same privileges or to the agent
authorised by the GOI.
2.
In the event of fire, theft, damage or destruction, the exemptions under this Article
may be re-exercised provided the remaining assignment of the Australian Program
personnel is for at least eight (8) months.
16.
TRANSPARENCY OF LAWS
The GOI will, upon request, inform Australian firms and Australian Program personnel of
local laws and regulations which may concern them in the performance of their duties. The
GOI will notify the GOA of any changes in its law and regulations and will inform the
GOA of the application of such changes. If either Government considers it appropriate, the
two Governments will consult to find a mutually acceptable solution concerning such
changes.
17.
EQUALITY OF TREATMENT
Australian firms, Australian Program Personnel and their Dependants will be accorded no
lesser benefits, privileges and exemptions than those accorded to other non-Indonesian
firms or nationals under any other bilateral arrangement for development cooperation.
l
8
18.
SECURITY
The GOI will arrange for protective services necessary to ensure the safety of:
(a)
(b)
19.
the Australian Program Personnel, their Dependants, their property;
and
Australian Program supplies.
SETTLEMENT OF DIFFERENCES
Differences which may arise relating to the interpretation or application of the provisions
of this Memorandum will be settled by means of negotiations between the GOI and the
GOA or in any other manner mutually agreed upon.
20.
AMENDMENTS
Amendments to this Memorandum may be made at any time by an arrangement in writing
between the two Governments.
21.
COMMENCEMENT
This Memorandum will take effect from the date of its signature and the Project will be
deemed to have commenced from that date. The Australian contribution to the Project and
all undertakings given herein will cease 5 years after the date of signature of this
Memorandum or on such other date as may subsequently be arranged between the two
Governments.
9
ANNEXURES to this Memorandum form an integral pan of it.
IN WITNESS WHEREOF, the undersigned, duly authorised by their respective
Governments, have signed this Memorandum.
SIGNED in duplicate, at Nusa Dua - Bali on this 24th day of February in the year of one
thousand nine hundred ninety nine, in two (2) originals of the English language, both of the
texts being equally authentic.
FOR Tl IE GOVERNMENT OF
THE REPUBLIC OF INDONESIA
FOR THE GOVERNMENT OF
AUSTRALIA
Signed
Signed
ALI ALATAS
MINISTER FOR FOREIGN AFFAIRS
THE HON ALEXANDER DOWNER MP
MINISTER FOR FOREIGN AFFAIRS
10
q.fr1-
ANNEX 1
AUSTRALIA- INDONESIA DEVELOPMENT CO-OPERATION PROGRAM
BAPEDAL WILAYAH DENPASAR lNSTITUTIONAL STRENGTHENING
PROJECT
EXECUTIVE SUMMARY
Project Objective
The Project is intended to strengthen the capacity of BAPEDAL Wilayah in Denpasar to
provide institutional and technical support in environmental management to Provincial
Government, sectoral agencies and community groups in its region.
Project Origin
In 1997 the Government of Indonesia sought assistance from Australia to strengthen the
capability of its Environmental Impact Management Agency (BAPEDAL) Region II
centred in Denpasar Bali. Region II includes the Provinces of Bali, East Nusa Tenggara,
West Nusa Tenggara and East Timar. The request followed a review of the Australianfunded East Java Pollution Control Implementation Project (PCI) in February 1997 which
recommended consideration of further assistance for the newly established BAPEDAL
Wilayah Region II office based in Denpasar.
The December 1997 BAPEDAL Wilayah Denpasar Feasibility and Design Study
recommended that Australia support a five year program aimed at strengthening the ability
of BAPEDAL Region II to provide technical guidance and laboratory support to provincial
staff responsible for pollution control and environmental management.
Rationale
There is a pressing need for the development of environmental management programs in
the provinces of Bali, Nusa Tenggara Barat, Nusa Tenggara Timur and Timor Timur,
particularly the latter three. Australia has a strategic opportunity to assist the Government
of Indonesia strengthen the institutions with responsibility for managing environmental
issues at the regional and provincial levels in the Eastern Islands.
11
q.WJ __
Strengthening the ability of BAPEDAL Wilayah to act as a representative office of
BAPEDAL Pusat will support the national environmental program and provide technical
guidance within that framework for the Department of Home Affairs and other sectoral
agencies which also have environmental responsibilities.
Project Description
The overall objective of the Project is to strengthen BAPEDAL Wilayah Denpasar' s
capacity to provide institutional and technical support in environmental management to
Provincial Government, environment agencies and community groups in its region. The
Project is designed to incorporate a consultative approach, particularly in the initial stages,
as BAPEDAL Wilayah develops corporate and strategic plans. Activities associated with
developing the corporate plan will also provide opportunities to assess the viability of the
Project, given the risk of a lack of support from Home Affairs. The Project is designed
around action learning programs and local environment Projects to provide a learning
experience which also addresses specific environmental issues. These programs will be
supplemented by other off site training in order to build both organisational confidence and
technical capability in the Wilayah and in other agencies responsible for environmental
management. The BAPEDAL Wilayah Denpasar Institutional Strengthening Project
Design Document (December 1998) agreed between the GOA and GOI provides the
guiding reference for the Project.
Key features of the Project include:
•
•
•
•
•
•
Institutional strengthening and capacity building in BAPEDAL Wilayah Region II
through formal training, work attachments and on-the job-training.
Institutional strengthening of agencies at the Regional and Provincial levels of
government through the provision of practical training programs and agencies'
participation in targeted environmental improvement Projects
A focus on agencies and staff with existing responsibilities for environmental
management in anticipation of the formation of BAPEDALs at the Provincial level
(BAPEDALDA)
No dependence on the establishment of BAPEDALDAs
Integration of poverty alleviation and gender equity within environmental
improvement, training and community education activities.
Complementarity with other donor and aid projects, including Australian development
projects.
The Project is structured to include three major components:
l.
Capacity Building in BAPEDAL Wilayah
12
2.
3.
Capacity Building for Environmental Programs in the Eastern Islands
Project Management
Component 1 - Capacity Building - BAPEDAL Wilayah
This component aims to develop BAPEDAL Wilayah ' s corporate planning process and to
improve BAPEDAL Wilayah' s technical capacity to plan and coordinate environmental
management activities in the Eastern Islands. This will give BAPEDAL Wilayah the
experience necessary to:
• plan, manage and deliver training
• plan, manage and deliver environmental programs at the provincial level
• plan, develop and monitor community education and environmental awareness programs
Component 2 - Capacity Building for Environmental Programs in the Eastern Islands
This component seeks to assist BAPEDAL Wilayah undertake its role of providing
technical guidance and laboratory support to provincial and local government agencies
responsible for environmental control and management. It will also involve community
groups in the identification of problems and the implementation of solutions.
Activities will focus on environmental issues in the following areas:
• coastal zone management, including mangroves, coral reefs and aquaculture
• marine pollution control, including hotels, beaches, oil clean ups and the national
program Pantai Lestari
• land management and rehabilitation including C-class mining, critical land, agriculture
and forestry practices
• environmental management planning including AMDAL
• urban waste management including domestic solid, domestic liquid waste and
AD IP URA
• industrial waste control including home, small and large scale industry, hazardous and
toxic waste, and PROPER PROKASIH
• water quality control including rivers, lakes, ground water and PROKASIH
• air pollution control including Langit Biru
• pollution prevention strategies including cleaner production
Component 3 - Project Management
This component will manage and coordinate Project inputs in a timely manner and within
budget. An important sub-component will be the liaison and coordination between
BAPEDAL Pusat, BAPEDAL Wilayah Region II and other BAPEDAL Wilayah offices.
The effects of this coordination effort will be reflected in the development of BAPEDAL
13
ｱｭ
ｾ＠
..
Wilayah's corporate plan (under Component 1) and Project annual plans. Of equal
importance will be liaison and coordination with other donor and aid programs in the
environment sector to avoid duplication and ensure complementarity between programs. A
strong emphasis on community involvement and education in identifying issues,
developing strategies, implementing solutions and monitoring results to maximise its
sustainability and long term effectiveness.
The Project will also extend the support provided by Australia to educational development
in the Eastern Islands through the Eastern Universities Project and previous educational
projects. This will be done through the training activities that constitute Components I and
2 of the Project, though the focus will be less academic than in previous projects. The
Project is designed to assist BAPEDAL Wilayah Region II in the improvement of staff
technical and administrative skills, while other environmental agencies at provincial and
district levels will benefit from field-based, on-the-job training designed to find solutions to
environmental problems.
Resource requirements for the Project will be consistent with the Government of
Indonesia's policy of zero growth of the civil service. The limitations on recruiting new
and more appropriately qualified staff mean that training in fundamental and practical
aspects of pollution control is extremely important.
Beneficiaries of the Project
Beneficiaries of the proposed Project include BAPEDAL Wilayah Region II, provincial
and district government agencies involved in environmental management, women and
community groups and the Eastern Islands environment. In the longer term, responsibility
and effective environmental management and control will also alleviate health and food
production problems associated with poverty, as well as addressing environmental
problems associated with small industrial activities.
Implementation
The overall responsibility for the management of the GOA inputs will be vested with an
Australian Managing Contractor (referred to as the AMC or 'the Contractor'). The AMC
will appoint a Project Director who will oversee the implementation of the Project in
Australia and Indonesia. The implementation in Indonesia will be the responsibility of the
Australian Project Team Leader, appointed by the AMC, who will be based in Denpasar.
Coordination activities in Jakarta will be the responsibility of the Environmental Project
Coordinator - Jakarta who will be based in BAPEDAL.
14
ｱＮｾ＠
.. ·
Implementation of the Project will be the responsibility of the Australian long-term and
short-term advisers. The Project is to support the development of BAPEDAL Wilayah,
BAPEDAL and BAPEDALDA and associated agencies.
These agencies have
responsibility for management and enforcement. It is therefore important that the
Australian advisers are from a background and culture of enforcement and not purely
management.
Financing
The contributions of the GOA and the GOI are detailed in Annexes 3 and 4 of this
Memorandum and are estimated to value A$ 7.585 million and A$ 1.01 million
respectiveJy. Disbursement of Australian contributions will be subject to the normal
Australian annual parliamentary approval of appropriations.
15
ANNEX 2
KEY RESPONSIBILITIES
1.
Government of Indonesia
1.1
BAPEDAL Pusat as Executing Authority for the Project will have the following
key responsibilities:
(a) Securing and ensuring the disbursement of GOI contributions to the overall
Project budget, including budgets for local training, procurement, travel and
other counterpart costs;
(b) Liaison and negotiation with central agencies to determine program funding for
the cost of major works and other physical implementation costs associated with
environmental management activities to be carried out by BAPEDAL Wilayah
Denpasar (with the exception of action-learning related activities, these costs
will not be met by the Project);
(c) Releasing of counterpart BAPEDAL Pusat and Wilayah staff to participate in
Project activities including the corporate planning process, project management,
training and consultations with provincial and district environmental agencies
and community groups;
(d) Nominating the Chairperson and GOI representatives on the Project
Coordinating Committee;
( e) Sharing information on departmental activities essential to the Project capacity
building process, such as annual development project proposal lists (DUP) and
approval lists (DIP);
(f) Ensuring consultation with community groups and other stakeholders on Project
activities
(g) Ensuring integration of the Australian Project team into the BAPEDAL Wilayah
office; and
(h) Coordination and liaison between this Project and other related projects in the
environmental management field.
16
2.
Government of Australia
2.1
The Australian Agency for International Development of the Department of Foreign
Affairs and Trade (AusAID) as the Executing Authority for the Project will have
the following key responsibilities:
(a) Selecting an Australian Managing Contractor (the Contractor) to provide overall
management and administration for this Project;
(b) Nominating Australian representatives on the Project Coordinating Committee;
(c) Approval of individual activities and budgets;
(d) Monitoring, reviewing and evaluating Project implementation;
( e) seeking accreditation for consultants
(f) monitoring Australian Managing Contractor performance in-country; and
(g) processing payments to the Australian Managing Contractor.
2.2
The Contractor will have responsibility for:
(a) Monitoring the performance of the Project against agreed outcomes and provide
direction to ensure its objectives are met;
(b) Providing a high level of advice to AusAID and the GOI on the risks associated
with the Project and the performance of the Project;
(c) Selecting and appointing Australian and Indonesian resources for input to the
Project;
(d) Establishing and ensuring maintenance of project management, administration,
financial and reporting systems;
(e) Directing and monitoring all aspects of the progress of the Project, including the
activities and performance of all advisers;
(f) Regularly reporting on progress against performance targets in line with
contractual requirements and constraints on delivery;
l
17
Q:fl).
(g) Where appropriate, authorise equipment and material to be supplied as part of
the Project;
(h) Preparing Annual Plans for the Project, in consultation with the Head of
BAPEDAL Wilayah;
(i) Assisting BAPEDAL Wilayah staff in providing on-the-job training to
provincial and local government staff and community groups;
(j) Assisting government agencies and community groups to undertake small
projects;
(k) Selecting and manage local professional, technical and administrative resources
for the Project; and
(1) Representing the Project on relevant coordination committees and other
mechanisms established to assist with Project implementation.
2.3
Sub-contractors
(a) Implementation of activities in accordance with specific TOR; and
(b) Liaison with the Australian Managing Contractor in regard to all matters
affecting performance and payment.
18
ANNEX3
CONTRIBUTION OF THE GOVERNMENT OF AUSTRALIA
l.
Financial Contribution
1.1
The GOA will make a contribution to the Project totalling an estimated A$ 7.585
million over a five year period. Disbursements of Project funds will be subject to
the prevailing annual budget appropriations. Any changes will be notified to the
GOI. The contribution of the GOA are described below. Details of financial
contributions by the GOA and GOI are set out in Annex 5 to this Memorandum (as
agreed in the Project Design Document December 1998).
2.
Personnel
2. l
The GOA will provide accommodation, travel costs and remuneration for all
Australian and locally engaged staff assigned to the Project. The staff include:
(a) Project Director;
(b) Team Leader;
( c) Institutional Adviser;
( d) Community Development and Participation Adviser;
( e) Environment and Land Management Adviser;
(f) Necessary locally engaged staff;
(g) Short-term specialist advisers . Depending on the skills and experience of the
long term advisers, a range of short-term specialists may be required to provide
management advice and on-the-job training in the following disciplines:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
L
Agriculture
Coastal zone and marine management
Land/watershed management and soil conservation
Law enforcement
fisheries
Solid waste management
Mining
Oil spills
Road engineering
19
(x)
(xi)
(xii)
Community education
Geographic Information Systems
Media.
3.
Training
3 .1
The Project design provides for maximum flexibility in the choice of training
mechanisms available under Project funding. The design provides for formal incountry short term training, workshops, seminars, conferences, developing learning
links with similar projects and in-Australia study tours, courses and work
assignments. Some of these courses and seminars will be suitable for staff from
BAPEDALDA and other Daerah.
3.2
In-Indonesia Training: In Year 1, the GOA will cover all travel, accommodation
and participation costs associated with staff participation in in-Indonesia Project
training, work shops or study tours . In Years 2-5 these costs will be shared between
the GOI and GOA, with contributions determined on a sliding scale as per Annex 5,
Table 1.
3.3
In-Australia Training: For the duration of the Project, the GOA will pay for the
travel, accommodation and per diems for all Indonesian participants on in-Australia
Project training, work shops or study tours. The GOA will provide airfares and
allowances, at current AusAID rates, to participants to enable them to travel to
Australia and cover the costs of living.
3.4
Selection of candidates to be involved in overseas training will be done through
BAPEDAL' s training selection process.
4.
Procurement, Maintenance and Project Management
4. l
In Year 1 of the Project, the GOA will provide funding to the Contractor for all
vehicles, maintenance, equipment and materials to be allocated and used in
accordance with the Project Design Document. This will include additional airconditioning, office upgrading, and new communications and office equipment
required to support the Project team and equipment at the BAPEDAL Wilayah
Region II office in Denpasar.
4.2
In Years 2-5 equipment costs will be shared between the GOI and GOA, with
contributions determined on a sliding scale as per Annex 5, Table 1. Shared costs
will include procurement of equipment and maintenance on new vehicles and
computers provided under the Project. Vehicle use will be shared between GOI
staff and Project team members.
20
ｱ Ｎｾ Ｍ
ANNEX4
CONTRIB UTION OF THE GOVERNMENT OF THE REPUBLIC OF INDONESIA
l.
Financial Contribution
I. I
The contribution of the GOI is estimated in the Project Design Document to value
A$ I. 01 million and is described below. Details of the apportionment of financial
contributions by the GOA and GOI are set out in Annex 5 to this Memorandum (as
agreed in the Project Design Document December 1998).
2.
Personnel
2. I
The GOI will nominate a Counterpart Team Leader at BAPEDAL Wilayah
Denpasar who will work closely with the Australian Project team. However, it is
expected that this position will not be required to act in the Project role on a fulltime basis. BAPEDAL Pusat will nominate an Environmental Project Coordinator
- Jakarta who will be responsible for coordination activities in Jakarta. Other
counterpart staffing requirements will be identified during Year 1 of the Project and
agreed between the GOI and GOA before the commencement of Year 2. The
Project will not impose a requirement for additional GOI personnel resources.
3.
Tra ining
3.1
In-Indonesia Training: The GOI will provide the following in-kind contributions in
full for the duration of the Project:
3.2
(a)
appropriately located and furbished training facilities, free of rent and other
charges;
(b)
counterpart trainers and/or training participants for the delivery of courses
and other Project related training activities;
(c)
Project training-related utility charges; and
(d)
incidental costs associated with in-Australia training, including passport
formalities, provision of exit permits and provision of FISKAL exemptions
for all participants.
Australia will meet all other Project training costs in Year 1 of the Project. In Years
2-5 these other costs will be shared between the GOI and GOA, with contributions
determined on a sliding scale as per Annex 5, Table I, including travel,
22
4.3
The GOA will also fund the costs of overall project management in accordance with
the Project Design Document and the Contract.
21
accommodation and per diems for all participants on in-Indonesia Project training,
action learning demonstration exercises, seminars and workshops.
4.
Procurement and Maintenance
4. l
The GOA will meet all procurement and maintenance costs associated with the
Project in Year 1. In Years 2-5 these costs will be shared between the GOI and
GOA, with contributions determined on a sliding scale as per Annex 5, Table 1.
Shared costs will include procurement of equipment and maintenance on Projectprocured vehicles and computers.
5.
Office Accommodation and Services
5.1
The GOI will meet all costs associated with the following office and services
expenses for the full duration of the Project:
a) reasonable office space for the Project headquarters in the BAPEDALDA
Wilayah Region II office;
b) utilities charges and rent for office accommodation;
c) operation and maintenance costs of existing GOI vehicles used for Project
purposes; and
d) costs associated with the Project Coordinating Committee meetings, including
salaries of GOI staff involved and venues for meetings. This also includes
attendance fees, food and beverages for other Project-related meetings.
5.2
I
The GOI will also disseminate relevant information about training opportunities and
other Project activities.
23
ANNEX 5
ACTIVITY COST ESTIMATES
5.1
The GOA will meet all costs of Australian Project personnel for the duration
of the Project. As Project partners, the GOA and GOI will share the costs of
the remaining Project cost components (that is, procurement, training and
other costs), as scheduled in Table 1. The GOA will meet all Project costs in
Year 1 of the Project. Over the period Year 2 to Year 5 of the Project, the
GOI's contribution to Project costs (with the exception of Australian
personnel) will be introduced through progressive phasing.
The GOI
contribution will commence at 20 per cent of non-personnel costs, including
office telephone and electricity costs in Year 2; 40 per cent in Year 3; 60 per
cent in Year 4; and 80 per cent in Year 5.
5.2
During Year I of the Project the Contractor will clearly identify all proposed
GOI and GOA contributions for Years 2-5 for consideration at the Planning
and Risk Management Workshop to be convened by AusAID and BAPEDAL
Pusat at the end of Year 1 of the Project.
5.3
The estimated cost of the Project are:
Total GOA contribution (est.): A$ 7.585 million
Total GOI contribution (est.): A$ l.01 million
Total (est.):
A$ 8.593 million
TABLE 1: Detailed Estimates of Total Activity Cost
Year 1
Year 2
Year 3
Year4
Year 5
Total
100
0
100
0
100
80
20
100
0
60
40
100
0
40
60
100
0
20
80
100
0
62
38
754.00 1295.33
0.00
0.00
200.40
246.90
0.00
61.73
210.08
300.13
0.00
75.03
67.20
53.76
0.00
150.20
1231.68 2046.33
1295.33
0.00
56.43
37.62
189.10
126.07
40.32
190.57
1771.76
1295.33
0.00
37.62
56.43
126.07
189.10
26.88
285.85
1771.76
1295.33
0.00
18.81
75.25
63.03
252.13
13.44
381.14
1771.76
5935.33
0.00
560.17
231.03
888.42
642.33
201.60
1007.76
8593.28
Contributions bl£ Government
Australian Percentage Personnel
Indonesian Percentage Personnel
Australian Percentage Other Elements
Indonesian Percentage Other Elements
Australian Contribution Personnel
Indonesian Contribution Personnel
Australian Contribution Procu rement
Indonesian Contribution Procurement
Austra lian Contribution Training
Indonesian Contribution Training
Australian Contribution Other
Indonesian Contribution Total
Total Project
0
ANNEX 6
PROTECTION, OWNERSHIP AND ALLOCATION OF INTELLECTUAL
PROPERTY BY PARTICIPANTS IN ACTIVITIES UNDER THIS
MEMORANDUM
1.
This Annex provides an indication of the Intellectual Property issues that
should be addressed by Participants in the Implementing Arrangements.
2.
Notwithstanding anything stated or implied in this Annex, it is the sole
responsibility of prospective and actual Participants to take all necessary steps,
including obtaining expert professional advice, to ensure that their legal and
commercial positions are adequately protected and to ensure adequate legal
and physical protection for Background Intellectual Property and Foreground
Intellectual Property.
3.
Implementing Arrangements should contain clauses that :
(a)
specify appropriate procedures for checking(i)
prior to the commencement of the Activity; and
(ii)
as appropriate during the Activity;
for third party Intellectual Property that might:
be infringed by the Participants while carrying out
Activities; or
infringe Intellectual Property
Implementing Arrangement.
(b)
(c)
created
under
the
identify each Participant's Background Intellectual Property and:
(i)
the nature of the protection that has been or needs to be,
accorded to that Background Inteilectual Property; and
(ii)
the nature of any third party rights restricting the use of
Background Intellectual Property;
specify appropriate procedures for:
(i)
identifying;
(ii)
determining ownership of; and
(iii)
protecting;
Foreground Intellectual Property;
(d)
specify appropriate procedures for approving the conditions on which
each Participant may be licensed to use Foreground Intellectual
Property for its own non-commercial purposes (which purposes
exclude sub-licensing and commercial purposes such as manufacturing
and having manufactured) and for commercial purposes;
(e)
specify appropriate clauses allowing a Participant to be licensed to use
another Participant's Background Intellectual Property when it is
reasonably necessary for the commercial use of Foreground
Intellectual Property;
(f)
specify appropriate procedures for licensing third parties to use
Foreground Intellectual Property, including where such use requires
access to another Participant's Background Intellectual property and
the conditions upon which a licence to the Background Intellectual
Property will be granted;
(g)
specify appropriate procedures for approval by all the Participants,
prior to
disclosure, of the public disclosure of information
through publications, seminars or any other means;
(h)
specify the rights and obligations of visiting researchers involved in
the Activity and particularly in relation to Intellectual Property created
by them during their work in the Activity;
(i)
nominate the governing law of the implementing Arrangement; and
(j)
specify appropriate procedures for the resolution of disputes, including
international commercial arbitration.