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Jan 2017 Contract No. ITT 1651 Sunshine Coast Regional Council
Management Agreement for Mooloolaba Beach Holiday Park XXXXX Pty Ltd
Schedule 4 - Draft Management Agreement
Contract No# ITT1651 Contract Title: Management Agreement – Mooloolaba Beach Holiday Park
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Table of Contents Conditions of Contract ............................................................................ 2 1 Interpretation 2 1.1 Definitions 2 1.2 Construction 4 1.3 Headings 5 2 Appointment 5 3 Management Period 6 3.1 Commencement 6 3.2 Termination 6 3.3 Option to renew 6 4 Acknowledgement by Manager 6 4.1 Acknowledgement by Manager 6 5 Scope of Management Services 6 5.1 Manager to carry out all Operation Services 6 5.2 Collection of Fees 7 5.3 Inspection and reports 8 5.4 Notice of damage and accidents 8 5.5 Use of defective Facilities 8 5.6 Security and safety 8 5.7 Management of tenancy arrangements with Patrons 8 6 Access 9 6.1 Access 9 6.2 Separate Contractors 9 6.3 Occupation of the Residence 9 7 Plans 10 7.1 Preparation of Fire Safety Management Plan 10 7.2 National Industry Accreditation and Management Manual 10 8 Changes to Scope of Services 10 9 Payment, adjustment of the Management Fee and security 11 9.1 Claims and payment of Management Fee 11 9.2 Unconditional Undertaking 11 10 Indemnities and insurances 12 10.1 Responsibility for care of the Facilities during the term of the Agreement 12 10.2 Indemnity 12 10.3 Insurance against public liability and third party property damage 12 10.4 Cash in transit insurance 13 10.5 Workers’ compensation insurance 13 10.6 Periods of insurance 13 10.7 Evidence of policies 13 10.8 Provisions in policies 13
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11 Default and termination 14 11.1 Notice of Default 14 11.2 Termination 14 11.3 Termination by Council for convenience 14 11.4 Termination by Contractor 15 12 Dispute avoidance and management 15 12.1 Expert determination 15 12.2 Council’s right of deduction 16 12.3 No delay to Management Services 16 13 Notices 16 13.1 General 16 13.2 How to give a communication 16 13.3 Particulars for delivery of notices 16 13.4 Communications by post 16 13.5 Communications by fax 16 13.6 Communications by email 17 13.7 After hours communications 17 13.8 Process service 17 14 Goods and services tax (GST) 17 15 Miscellaneous 18 15.1 Duty 18 15.2 Legal costs 18 15.3 Waiver and exercise of rights 18 15.4 Rights cumulative 18 15.5 Consents 18 15.6 Further steps 18 15.7 Governing law and jurisdiction 18 15.8 Assignment 18 15.9 Liability 19 15.10 Counterparts 19 15.11 Effect of execution 19 15.12 Entire understanding 19 15.13 Relationship of parties 19 15.14 Inspection of records and change of Manager 19 15.15 Audit of Facilities records 19 15.16 Purchasing procedures 19 Schedule 1 Contract details .................................................................. 20 Schedule 2 Payments ........................................................................... 21 Schedule 3 Scope of Services .............................................................. 22 1 Management of the Facilities 22 1.1 Service to the public 22 1.2 Prohibitions 22 1.3 Promotions 23 1.4 Cleaning and maintenance 23 1.5 Provision of plant equipment and consumables 24
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1.6 On-site accommodation 25 2 Provision of labour 25 3 Leave for Manager 26 4 Council to supply utilities 26 5 Specific Item Responsibilities 27 Schedule 5 Code of conduct for an expert (Code of Conduct) .............. 30 Schedule 6 Drawings ............................................................................ 31
Contract No# ITT1651 Contract Title: Management Agreement – Mooloolaba Beach Holiday Park
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Conditions of Contract
Date: ………………………… Parties Sunshine Coast Regional Council of Cnr Currie & Bury St Nambour QLD 4560 (“Council”)
XXXX Pty Ltd of …………………………………………………(“Manager”) Background A The Council wishes to retain the Manager to manage, operate and maintain the Facilities for the Management Period. B The Council has accepted the Manager’s offer to manage, operate and maintain the Facilities for the Management Period in consideration of the Manager being paid the Management Fee. C The parties now wish to record their agreement in this document. Agreed terms 1 Interpretation 1.1 Definitions In this document: Agreement means this document together with the Schedules and any written amendments to them. Authority is any: (a) government department; (b) local government council; (c) governmental or statutory authority; or (d) other body, which has a right to give any consent or impose any requirement in respect of the Management Services. Business Day means a day which is not a Saturday, Sunday or bank or public holiday in the place described in schedule 1. Event of Default means any of the following events: (a) a Insolvency Event occurs to a party;
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(b) the Manager fails to deliver the unconditional undertaking required in accordance with clause 9.2; (c) Wilful Misconduct by the Manager; (d) negligent act or negligent omission by the Manager; or (e) failure by the Manager to remedy any breach of the Agreement within the time specified in a notice to remedy that breach from the Council. It is not an Event of Default if the default on the part of the Manager is due to the occurrence of a Force Majeure Event. Earned Revenue means the amount shown in Council’s general ledger as revenue earned for the period and is determined according to accrual accounting concepts. Earned revenue for each month is reported on the monthly “Charge Report” produced by the RMS booking system and is the tax exclusive amount calculated by deducting the “Total GST” amount from the “Total Charge” amount for the month. To remove all doubt Earned Revenue is not the banking of deposits for advance bookings. Facilities means the facilities at the Site as described in schedule 1. Fees means the schedule of fees approved by the Council that are payable by the Patrons with respect to the use or occupation of the Facilities. For the avoidance of doubt, Fees shall include any GST paid by Patrons. Force Majeure Event is: (a) flood, earthquake, cyclone, malicious damage, natural disaster, sabotage, act of public enemy, war (declared or undeclared), revolution, radioactive contamination, toxic or dangerous chemical contamination; or (b) riots or civil commotions; or (c) blockades or picketing (excluding those solely between the Manager, its subcontractor, its suppliers and their respective employees), which delays or disrupts the Manager in the performance of its obligations under this Agreement, where the Force Majeure Event, delay or disruption could not have been prevented, overcome or remedied by the exercise by the Manager of a standard of care and diligence consistent with that of a prudent and competent Manager. Insolvency Event means: (a) where a summons is presented, an order made or an effective resolution is passed (and such summons, order or resolution is not withdrawn, dismissed or rescinded within five Business Days of its presentation or creation) for the winding up, insolvency, administration, reorganisation, reconstruction or dissolution of a party; (b) where a liquidator, provisional liquidator, receiver or receiver and manager, trustee, agent for a mortgagee in possession or similar officer is appointed in respect of all or any part of the assets or undertaking of that party and such appointment is not rescinded or revoked within five Business Days; (c) where pursuant to the provisions of the Corporations Act 2001 (Cth), that party is placed under official management or an inspector is appointed to investigate the affairs of that party; or
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(d) where that party stops or suspends payments to its creditors generally or is unable, or admits its inability to pay its debts as they fall due or enters into or seeks to enter into any composition or other arrangement with its creditors. Law is: (a) Commonwealth, the State or Territory refer to in schedule 1 or local government legislation including regulations, local laws or other legislation; (b) common law; and (c) relevant Authority requirements. Manager means the Manager in schedule 1. Management Brief means: (a) Scope of Services in schedule 3; and (b) the drawings described in schedule 1. Management Fee means the fees payable by the Council to the Manager in consideration of the Manager’s performance of its obligations under this Agreement and calculated in accordance with clause 9 and schedule 2. Management Period is the period: (a) during which the Manager must maintain the Facilities; and (b) is the period described in clause 3. Management Services means the services, materials and equipment which the Manager must provide to satisfy the requirements of the Agreement. Patron means a user of the Site or the Facilities, excluding the Manager. Residence means the building identified on the drawings described in Schedule 1 in which the Manager shall reside during the term of this Agreement. Scope of Services means the scope of Management Services as set out in schedule 3. Separate Contractors means the separate contractors referred to in clause 6.2(a). Site is the land and buildings indicated in the drawings included in the Management Brief on or in which the Management Services are to be provided. Tenancy Agreement means an agreement between the Council and a Patron relating to occupation by a Patron of a long term caravan site under the Residential Tenancies and Rooming Accommodation Act 2008. Unconditional Undertaking means an unconditional undertaking in a form approved by the Council and given by a bank approved by the Council and licensed under the provisions of the Banking Act 1959 (as amended) or other financial institution approved of by the Council. Wilful Misconduct means such conduct, act or omission having substantially harmful consequences done or omitted to be done intentionally and which results from conscious indifference to the rights or welfare of those who are or may be affected. 1.2 Construction Unless expressed to the contrary, in this document:
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(a) words in the singular include the plural and vice versa; (b) any gender includes the other genders; (c) if a word or phrase is defined its other grammatical forms have corresponding meanings; (d) “includes” means includes without limitation; (e) no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it; (f) a reference to: (i) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority; (ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation; (iii) any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; (iv) an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation; (v) a right includes a benefit, remedy, discretion or power; (vi) time is to local time in the place described in schedule 1; (vii) "$" or "dollars" is a reference to Australian currency; (viii) this or any other document includes the document as novated, varied or replaced and despite any change in the identity of the parties; (ix) writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes fax transmissions; (x) this document includes all schedules and annexures to it; and (xi) a clause, schedule or annexure is a reference to a clause, schedule or annexure, as the case may be, of this document; (g) if the date on or by which any act must be done under this document is not a Business Day, the act must be done on or by the next Business Day; and (h) where time is to be calculated by reference to a day or event, that day or the day of that event is excluded. 1.3 Headings Headings do not affect the interpretation of this document.
2 Appointment The Council hereby appoints the Manager and the Manager accepts its appointment to provide the Management Services in accordance with: (a) the requirements of the Agreement; and (b) the management manual referred to in clause 7.2.
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3 Management Period 3.1 Commencement This Agreement commences on the date set out in schedule 1. 3.2 Termination This Agreement terminates on the first to occur of the following: (a) the number of years after its commencement under clause 3.1 as set out in schedule 1; or (b) the termination of this Agreement by either party in accordance with its rights under the Agreement.
3.3 Option to renew (a) Council may in its absolute discretion offer by notice in writing to the Manager prior to three (3) months before the expiry date an extension of a term of a further one year. The Manager may decline to take up the option by notice in writing to the Council within one month of the offer by Council.
4 Acknowledgement by Manager 4.1 Acknowledgement by Manager The Manager acknowledges and agrees that it has: (a) carefully examined the Management Brief and any other written information given to it; (b) examined all information relevant to the risks, contingencies and other circumstances having an effect on its obligations under the Agreement which is obtainable by making reasonable enquiries; (c) examined the Facilities, the Site and its surroundings; and (d) satisfied itself as to the correctness and sufficiency of its final proposal and that the Management Fee covers the cost of complying with all its obligations under the Agreement, and that it has satisfied itself that it can and will perform the Management Services in accordance with the terms of this Agreement in the light of these examinations and enquiries.
5 Scope of Management Services 5.1 Manager to carry out all Operation Services (a) The Manager is required to carry out the Management Services with respect to the Facilities during the Management Period. (b) Without limitation to its obligations under clause 5.1(a), the Manager must undertake the Management Services: (i) with due care and skill and to the best of the Manager’s knowledge and expertise; (ii) in accordance with all relevant Laws, awards and standards; and
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(iii) at times and in a manner which causes as little inconvenience to the Patrons and other users of the Facilities as is reasonably possible. 5.2 Collection of Fees (a) Setting of Fees (i) The Council may determine any Fees to be paid by Facilities Patrons for any service or facility offered by the Facilities. The Manager shall not, except with the consent of the Council, charge to Patrons Fees in an amount greater or less than those determined by the Council. (ii) The Council will at least annually notify the Manager of new Fees to be charged for the next year. (b) The Manager must notify the Council in writing of any variation in Fees, and the date from which such variation is to take effect e.g. accommodation packages. (c) The Manager: (i) acknowledges and agrees that all revenue earned or generated from the Facilities and the Site (including but not limited to Fees) is and remains the property of the Council; (ii) accepts its appointment as the Council’s agent for the collection of Fees; and (iii) undertakes to collect the Fees and issue an official receipt on behalf of the Council from Patrons prior to their occupation or use of the Facilities. (d) The Manager shall ensure that Patrons are only levied Fees that have been approved by the Council and shall not charge the Patrons more or less than the Fees. (e) The Manager shall ensure that any of the Fees collected by the Manager are receipted and deposited daily into a bank account nominated by the Council. (f) The Manager shall make and keep accurate records relating to: (i) the Fees collected and receipted; (ii) the deposits made into the Council bank account; and (iii) the management and operation of the Facility; and such records shall be kept and maintained in accordance with generally accepted accounting practices and principles in Australia. (g) The Council and any person directed by the Council shall have at any time the right to inspect and copy the whole or part of any records referred to in clause 5.2(f). If any such records are stored on a medium other than writing, the Manager shall make available immediately upon request such facilities as may be necessary to enable legible reproduction of the record to be produced to the Council. (h) The Manager shall cooperate with the Council when making an inspection. Cooperation shall include the explanation of all filing and costing systems and the extraction of requested categories of documentation from files upon request.
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(i) The Manager shall observe any collecting, banking and receipting procedures reasonably imposed and advised by the Council to the Manager from time to time with respect to the Fees and any other revenue earned from the Facilities 5.3 Inspection and reports The Manager must: (a) at least daily inspect the Facilities to determine their state of repair; and (b) give the Council reports in respect of management, maintenance and repair of the Facilities in accordance with the requirements of the Scope of Services. 5.4 Notice of damage and accidents The Manager must as soon as practicable after the occurrence of the following events or situations, give the Council a detailed written report of: (a) any serious damage to, defacement of, or serious defect or want of repair in the Facilities of which it is aware, which is visually offensive or presents a serious danger, risk or hazard; (b) any accidents involving damage to property of which it is aware which occur in relation to the Facilities; (c) any serious injury or death suffered by any persons while present at the Facilities; and (d) all action proposed to remedy that damage, defacement, defect or want of repair including the estimated time required, and if appropriate, state in that report that the replacement or repair work required exceeds the limit of the Manager’s obligations under this Agreement. 5.5 Use of defective Facilities The Manager must not allow the use of any part of the Facilities which the Manager knows is defective, unsafe or out of repair and which threatens the safety of Patrons or members of the public. 5.6 Security and safety While undertaking the Management Services under this Agreement, the Manager, its employees, agents and subcontractors must comply with all rules, directions and procedures of the Council, including those relating to security and its obligations under the Work Health and Safety Act 2011, in effect at the Site. 5.7 Management of tenancy arrangements with Patrons (a) The Manager shall be responsible for the management of the Residential Tenancy Agreements including but not limited to: (i) acting as the agent of the Council with respect to the Tenancy Agreements; (ii) not expose the Council to any allegation that it has breached the Tenancy Agreements or not complied with the requirements of any Authority or Law; (iii) ensuring that any Patrons who occupy a long term caravan site execute a Tenancy Agreement prior to occupation of a long term site, and (iv) take such reasonable and lawful steps to evict a Patron in the event that a Patron fails to comply with the terms of a Residential Tenancy Agreement.
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6 Access 6.1 Access The Council must give, or ensure the Manager has, sufficient access to the Site and the Facilities in order to allow the Manager to perform its obligations under the Agreement. 6.2 Separate Contractors (a) The Council is entitled to arrange for Separate Contractors to carry out work on or adjacent to the Site or the Facilities (but the execution of which is not included in this Agreement) concurrently with the execution by the Manager of the Management Services. All such persons including artists, special tradesmen and their assistants and workers are referred to in this document as “Separate Contractors”. (b) In respect of Separate Contractors: (i) the Council must notify the Manager in writing within two days prior to commencement of any work by Separate Contractors of the identity of Separate Contractors and their work scope and must provide the Manager with copies of any drawings, specifications and other available information relating to their work; (ii) the Council must arrange for all Separate Contractors to comply with the reasonable requirements of the Manager; (iii) the Manager must co-operate with Separate Contractors for co-ordination of their work with the Management Services as a whole and the Manager must use its best endeavours to facilitate the execution of work by Separate Contractors; (iv) without limitation to the Manager’s obligation to exercise due care, all costs properly incurred by it in providing facilities for protection for the work of Separate Contractors as may be instructed by the Council and not otherwise provided for in this Agreement will be added to the Management Fee; and (v) the Manager is not responsible for any damage to the Facilities caused by any act or default of Separate Contractors. 6.3 Occupation of the Residence (a) The Council grants to the Manager a right to occupy the Residence for the term of this Agreement, but may not otherwise sublet assign or part with possession of the Residence without the prior written consent of the Council. (b) The right to occupy the Residence ceases upon the expiry of the term of this Agreement, or upon the sooner termination of this Agreement. (c) The Manager must: (i) maintain the Residence in a good, clean and tidy condition; (ii) install a telephone facility for private calls and use that facility for those calls; and (iii) pay the telephone rental and all private calls for this facility. (d) The right to occupy the Residence does not include a right to occupy the reception area, although the Manager is required to ensure that a person is in attendance at
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the reception pursuant to this Agreement at the times provided for in this Agreement.
7 Plans 7.1 Preparation of Fire Safety Management Plan The Manager must: (a) prepare and implement a fire safety management plan for the Facilities in accordance with the requirements of the Scope of Services; (b) in relation to the fire safety management plan, submit documentation to the Council progressively as it is being developed so as to enable the review of the plan to be completed by the Council as promptly as practicable; 7.2 National Industry Accreditation and Management Manual The Manager must: (a) prepare and implement a manual for the Management Services in accordance with the Scope of Services within 60 days of the date of this Agreement; (b) submit documentation required to maintain accreditation for Mooloolaba Beach Holiday Park with the national body Caravan Industry Association of Australia (CIAA) (c) make such alterations or additions to the manual as may be directed by the Council from time to time or as may be necessary to undertake the Management Services in accordance with the requirements of the Scope of Services.
8 Changes to Scope of Services (a) The Council may change the Scope of Services. That change may increase or decrease the previous Scope of Services. (b) If the Council wishes to change the Scope of Services, the Council must give written notice to the Manager with details of the required change. (c) If the Manager receives a notice in accordance with clause 8(b), it must perform its obligations under this Agreement to manage, operate and maintain the Facilities in accordance with the changed Scope of Services. (d) If the parties are unable to agree on an adjustment to the Management Fee and the terms of schedule 2 in respect of a change to the Scope of Services, the Council must determine the amount of the adjustment (if any) that is appropriate. In making its determination, the Council must have regard to: (i) the cost of the services, work and materials to be added or omitted as a result of the change to the Scope of Services, valued where applicable on the basis of any relevant estimates included in the Manager’s tendered prices or rates and otherwise on the basis of any other appropriate data; (ii) any likely effect which the change to the Scope of Services has on the time for performance of the Management Services; and (iii) allowance for an appropriate and reasonable margin.
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(e) The Manager must not implement any changes to the Scope of Services except as directed by the Council in accordance with this clause.
9 Payment, adjustment of the Management Fee and security 9.1 Claims and payment of Management Fee (a) The Council will pay the Manager the Management Fee in accordance with schedule 2 for the provision of the Management Services. (b) Schedule 2 sets out the payments the Manager may claim for the Management Services and when it may claim them. Payment must be made within 14 business days of a claim for such payments being submitted. (c) At the expiry of the contract all guests will be “checked out” and “checked back in” on the RMS Booking system to determine earnt revenue due to the previous and incoming contractor. 9.2 Unconditional Undertaking (a) The Manager must give the Council within ten days of the date of this Agreement an Unconditional Undertaking in favour of the Council in the sum set out in schedule 1 and which is acceptable to the Council (in its absolute discretion) in both form and substance as security for the Manager’s performance of its Management obligations in accordance with the Management Brief. (b) The Council may have recourse to the Unconditional Undertaking provided in accordance with clause 9.2(a) if the Manager: (i) fails to perform its Management obligations in accordance with the Management Brief; and (ii) fails to remedy such failure within the time provided in the Council’s written notice to remedy such failure. (c) The Manager must not take any steps whatever to: (i) injunct the issuer of the Unconditional Undertaking or the Council in respect of dealing with the Unconditional Undertaking; or (ii) restrain the Council from exercising its rights under the Unconditional Undertaking. (d) Subject to the Manager’s rights under clause 9.2(b) the Council must release one half of the amount of the Unconditional Undertaking provided in accordance with clause 9.2(a) within seven days of the end of the Management Period. The Council will release the remainder of the Unconditional Undertaking within three (3) months of the end of the Management Period if the Council is reasonably satisfied that the Management Services have been carried out in accordance with the Management Brief. (e) If the Council is not reasonably satisfied that the Management Services have been carried out in accordance with the Management Brief, the Council may, at its discretion, withhold the release of the balance of the Unconditional Undertaking provided in accordance with clause 9.2(a) until such time as the Council is reasonably satisfied that such conditions have been met.
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(f) In the event that such conditions have not been met within a reasonable time frame, Council may use the Unconditional Undertaking to rectify any such conditions in accordance with the Management Brief.
10 Indemnities and insurances 10.1 Responsibility for care of the Facilities during the term of the Agreement (a) From the date on which the Manager is allowed access to the Site and the Facilities until the termination of the Agreement, the Manager is responsible for care of the Facilities. (b) If any damage is caused by the Manager, it’s employees, agents or subcontractors or any employee of an agent or agreement or to any property, service or utility service in or adjacent to the Site, the Manager must promptly make good or cause to be made good, the damage at its own cost and pay any compensation payable in connection with the damage. Clause 10.1(b) does not apply to loss or damage which is a direct consequence, without fault or omission on the part of the Manager, of: (i) any negligent act or omission of the Council, or its employees, consultants or agents other than the Manager; or (ii) use or occupation of any part of the Facilities by the Council. 10.2 Indemnity (a) The Manager indemnifies the Council against any damage, expense, loss or liability suffered or incurred by the Council in respect of: (i) damage to any real or personal property; or (ii) the injury to, or death of, any person, arising in respect of the Agreement and not caused by an act or omission of the Council or its consultants or agents. (b) Clause 10.2(a) does not lessen or otherwise affect the Manager’s other obligations under the Management Brief. 10.3 Insurance against public liability and third party property damage The Manager must effect and maintain insurance (jointly in the names of the Council, the Manager and its subcontractors) approved by the Council: (a) for not less than the amount set out in schedule 1 which covers liability to the public including to the Council under clause 10.2(a) in respect of: (i) damage to any real or personal property; (ii) the injury to, or death of, any person, arising in respect to the Agreement; and (b) for not less than the amount set out in schedule 1 which covers third party property damage related to any plant or vehicles used in respect of the Agreement, and cover the activities and operations of the Manager at or in connection with the Facilities.
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10.4 Cash in transit insurance The Manager must, at the Manager’s expense effect a cash-in-transit insurance policy, noting the Council as insured persons by it in connection with the Facilities covering the entire term of this agreement, including extensions. 10.5 Workers’ compensation insurance The Manager must effect and maintain insurance which covers any damage, expense, loss or liability suffered or incurred by any person engaged in the Management Services arising: (a) by virtue of any statute relating to workers’ or accident compensation or employers’ liability; or (b) at common law. 10.6 Periods of insurance The Manager must ensure that each policy of insurance referred to in clause 10 is: (a) in force on the date the Council gives the Manager access to the Site or the Facilities; and (b) maintained until the end of the Management Period. 10.7 Evidence of policies (a) The Manager must, in respect of each insurance referred to in clause 10, give the Council: (i) certified copies of the cover notes, policies and certificates of currency no later than seven (7) days after the effecting of that policy or renewal; and (ii) other evidence of the insurances which the Council reasonably requires. (b) If the Manager does not comply with clause 10.7(a), the Council may effect the relevant insurances and deduct the premiums for them from amounts payable to the Manager or recover them as a debt due from the Manager. 10.8 Provisions in policies The Manager must ensure that: (a) each policy of insurance referred to in clause 10 contains a provision approved by the Council that requires the insurer to notify the Council (in writing) whenever the insurer gives the Manager a notice of cancellation or any other notice in respect of the policy; (b) each policy of insurance referred to in clause 10.3 provides that: (i) all insurance agreements and endorsements (with the exception of limits of liability) operate as if there was a separate policy of insurance covering the Council, the Manager and its subcontractors; and (ii) failure by any insured to observe and fulfil the terms of the policy does not prejudice the insurance in regard to any other insured; (c) the insurer waives all rights, remedies or relief to which it might become entitled by way of subrogation against the Council; and (d) full compliance with the claims procedure under all insurance policies are followed, and must supply details to advise the Council of the progress of any claim.
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11 Default and termination 11.1 Notice of Default (a) Except in the case of an Insolvency Event, where a party commits or permits to occur an Event of Default (Defaulting Party) then the other party (NonDefaulting Party) may not take any steps to terminate the Agreement unless it has served on the Defaulting Party a written notice (Default Notice). The Default Notice must: (i) describe the Event of Default in sufficient detail to allow the Defaulting Party to understand the nature of the Event of Default; (ii) describe the time period (which must not be less than ten days) within which the Defaulting Party must: (A) remedy the Event of Default; or (B) produce and commence to implement (to the reasonable satisfaction of the Non-Defaulting Party) a plan to remedy the Event of Default. (b) In the case of the acceptance of a plan by the Non-Defaulting Party in accordance with clause 11.1(a)(ii)(B), the Default Notice is suspended pending the remedying of the Event of Default in accordance with that plan. If the Defaulting Party at any time fails to comply with the plan, then the suspension of the Default Notice will be lifted automatically and the Non-Defaulting Party will be entitled to terminate the Agreement without further notice to the Defaulting Party. (c) In the case of an Event of Default which comprises an Insolvency Event, the NonDefaulting Party is not obliged to issue a Notice of Default prior to terminating the Agreement. (d) Even if a right to terminate the Agreement has not arisen, the Non-Defaulting Party is entitled to damages in respect of any Event of Default by the Defaulting Party. (e) Where a party’s right of termination may not be exercised by reason of it being in default under this Agreement, as provided in clause 11.2, that party is entitled to damages and rights of set off in respect of a default by the other party under the Agreement. 11.2 Termination If either party commits an Event of Default then, subject to the provisions of clause 11.1 having been satisfied, the other party may (provided it is not in default under this Agreement) terminate the Agreement by notice in writing to the party in default. 11.3 Termination by Council for convenience Without limitation to any of the Council’s other rights and powers under this Contract, if the Council intends to: (a) develop the Site; (b) change or alter the use of the Site; or (c) sell, transfer, lease or licence the Site to a third party; then upon 28 days written notice to the Manager it may terminate the Contract. Upon receipt of such notice the Manager must remove its equipment from the Site, must otherwise cease the performance of its obligations under the Contract and must
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endeavour to mitigate any expense or losses that it or any subcontractor may incur or has incurred in relation to its obligations under the Contract. If the Council terminates the Contract under this clause then the Council is liable to pay the Manager the total of: (a) for Management Services undertaken prior to the date of termination, the amount which would have been payable if the Contract had not been terminated and the Manager had made a progress claim on the date of termination; (b) subject to the obligation of the Manager to mitigate its costs and expenses, the cost of plant, equipment or materials reasonably ordered by the Manager for the work under the Contract, which the Manager is liable to accept, but only if the plant, equipment or materials become the property of the Council upon payment; and (c) all retention moneys and security. 11.4 Termination by Contractor In the event that the Contractor is unable to perform their duties under this contract due to any incapacity, illness or other cause then they may terminate this contract upon giving to Council six (6) month’s prior written notice of termination of this agreement.
12 Dispute avoidance and management 12.1 Expert determination (a) Any dispute which arises between the Council and the Manager in respect of the Facilities or the Management Brief must be: (i) dealt with in accordance with this clause 12; and (ii) determined by an independent expert in the relevant field agreed upon and appointed jointly by the Council and the Manager. (b) If the Council and the Manager cannot agree on that appointment within seven days, it must be made, on the application of either party, by the President or other senior officer for the time being of the Institute of Arbitrators and Mediators Australia or his nominee. (c) The dispute may only be referred to an expert by written notice signed by both the Manager and the appropriate representative for the Council. (d) The expert determination must be made in accordance with the rules for expert determination in schedule 4. (e) The expert must act in accordance with the code of conduct for expert determination in schedule 5. (f) The decision of that expert is made as an expert and not as an arbitrator and is final and binding of the parties except where that decision requires adjustment to the Management Fee or other payment of more than the amount set out in schedule 1. (g) The Council and the Manager must share equally the costs incurred by the expert in making the determination.
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(h) Any amount payable under this Agreement which is not subject to a dispute may not be withheld because of a dispute about other issues. The Council may withhold any amount which is the subject of a dispute. (i) If a dispute which arises between the Council and the Manager in respect of the Facilities or the Management Brief is not determined three (3) months of it being submitted to expert determination in accordance with clause 12.1(a), either party may commence litigation in respect of that dispute. 12.2 Council’s right of deduction The Council may deduct, from moneys payable to the Manager, any money payable to the Council as a result of an expert determination. 12.3 No delay to Management Services Despite the existence of a dispute as contemplated by clause 12, the Manager must: (a) continue to execute the Management Services; and (b) perform its other obligations under the Agreement.
13 Notices 13.1 General A notice, demand, certification, process or other communication relating to this document must be in writing in English and may be given by an agent of the sender. 13.2 How to give a communication In addition to any other lawful means, a communication may be given by being: (a) personally delivered; (b) left at the party’s current address for notices; (c) sent to the party’s current address for notices by pre-paid ordinary mail or, if the address is outside Australia, by pre-paid airmail; (d) sent by fax to the party’s current fax number for notices; or (e) sent by email to the party’s relevant email address. 13.3 Particulars for delivery of notices (a) The particulars for delivery of notices are initially those set out in schedule 1. (b) Each party may change its particulars for delivery of notices by notice to each other party. 13.4 Communications by post Subject to clause 13.6, a communication is given if posted: (a) within Australia to an Australian address, three Business Days after posting; or (b) in any other case, ten Business Days after posting. 13.5 Communications by fax Subject to clause 13.7, a communication is given if sent by fax, when the sender’s fax machine produces a report that the fax was sent in full to the addressee. That report is conclusive evidence that the addressee received the fax in full at the time indicated on that report.
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13.6 Communications by email Subject to clause 13.7; a communication is given if sent by email, when the sender has clicks send and does not receive a delivery failure notification message from the email server. 13.7 After hours communications If a communication is given: (a) after 5.00 pm in the place of receipt; or (b) on a day which is a Saturday, Sunday or bank or public holiday in the place of receipt, it is taken as having been given at 9.00 am on the next day which is not a Saturday, Sunday or bank or public holiday in that place. 13.8 Process service Any process or other document relating to litigation, administrative or arbitral proceedings relating to this document may be served by any method contemplated by this clause 13 or in accordance with any applicable law.
14 Goods and services tax (GST) (a) Terms used in this clause have the meaning given to them in the A New Tax System (Goods and Services Tax) Act 1999. (b) Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this document are inclusive of GST at the rate of 10%. If the rate of GST is varied, the consideration payable for any supply under this Agreement will be varied to reflect the change of rate and any reduction in any other tax, duty or statutory charge connected with the rate change. (c) The recipient’s obligation to pay the GST component of the consideration is subject to it receiving a valid tax invoice in respect of the supply at or before the time of payment. (d) If at any time an adjustment event arises in respect of any supply made by a party under this document, the supplier must issue an adjustment note to the recipient in respect of the supply and a corresponding adjustment must be made between the parties in respect of any amount paid to that party by the other party and payments to give effect to the adjustment must be made. (e) If this document requires a party to pay for, reimburse or contribute to any expense, loss or outgoings (reimbursable expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense plus any GST payable by the other party. (f) The recipient can withhold from payment it is to make to the supplier such amount required by the Taxation Administration Act 1953.
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15 Miscellaneous 15.1 Duty (a) The Manager is liable for and must pay all duty (including any fine or penalty except where it arises from default by the other party) on or relating to this document, any document executed under it or any dutiable transaction evidenced or effected by it. (b) If a party other than the Manager pays any duty (including any fine or penalty) on or relating to this document, any document executed under it or any dutiable transaction evidenced or effected by it, the Manager must pay that amount to the paying party upon demand. 15.2 Legal costs Except as expressly stated otherwise in this document, each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under this document. 15.3 Waiver and exercise of rights (a) A single or partial exercise or waiver by a party of a right relating to this document does not prevent any other exercise of that right or the exercise of any other right. (b) A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right. 15.4 Rights cumulative Except as expressly stated otherwise in this document, the rights of a party under this document are cumulative and are in addition to any other rights of that party. 15.5 Consents Except as expressly stated otherwise in this document, a party may conditionally or unconditionally give or withhold any consent to be given under this document and is not obliged to give its reasons for doing so. 15.6 Further steps Each party must promptly do whatever any other party reasonably requires of it to give effect to this document and to perform its obligations under it. 15.7 Governing law and jurisdiction (a) This document is governed by and is to be construed in accordance with the laws applicable in the place set out in schedule 1. (b) Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the place set out in schedule 1 and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts. 15.8 Assignment (a) A party must not assign or deal with any right under this document without the prior written consent of the other parties. (b) Any purported dealing in breach of this clause is of no effect.
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15.9 Liability An obligation of two or more persons binds them separately and together. 15.10 Counterparts This document may consist of a number of counterparts and, if so, the counterparts taken together constitute one document. 15.11 Effect of execution This document is not binding on any party unless it or a counterpart has been duly executed by, or on behalf of, each person named as a party to the document. 15.12 Entire understanding (a) This document embodies the entire understanding and agreement between the parties as to the subject matter of this document. (b) All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this document are merged in and superseded by this document and are of no effect. No party is liable to any other party in respect of those matters. (c) No oral explanation or information provided by any party to another: (i) affects the meaning or interpretation of this document, or (ii) constitutes any collateral agreement, warranty or understanding between any of the parties. 15.13 Relationship of parties This document is not intended to create a partnership, joint venture, employee-employer or agency relationship between the parties. 15.14 Inspection of records and change of Manager (a) The Manager shall, if requested by the Council, at any reasonable time within six months prior to the expiry of this Agreement, allow the Council and any person or persons who propose to tender for or are otherwise interested in a management contract for a term after the expiration of this agreement to inspect the Facilities. (b) Where the Council appoints a new Manager at the expiry of the term of this agreement, the Manager shall, if requested by the Council, at any reasonable time within one month prior to the expiry of this agreement, allow the Council and the new Manager to inspect the Facilities and any books and records of the Facilities, and facilitate in good faith the familiarisation of the new Manager with the management of the Facilities, without charge. 15.15 Audit of Facilities records On 1 July of each year during the term of this Agreement, the Manager must make available to the Council all books of record for the preceding year to enable the Council to make an audit of those books and records and calculate the remuneration. 15.16 Purchasing procedures The Manager must adhere to any purchasing policies adopted by the Council. The Manager is responsible for the purchasing of operational goods and services within the specified annual budget.
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Schedule 1 Contract details
Place for Business Days (Clause 1)
Sunshine Coast, Queensland
Manager (Clause 1) XXXXXXX Pty Ltd Facilities (Clause 1) Mooloolaba Beach Holiday Park as identified and described in the Management Brief State or Territory (Clause 1) Queensland Drawings (Clause 1) As described in schedule 7 Place for local time (Clause 1.2(vii)) Sunshine Coast, Queensland Date of Commencement (Clause 3.1) 1 July 2017 Termination – number of years (Clause 3.2 and 3.3) 1 years + one 12 month extension at discretion by Council Amount of Unconditional Undertaking (Clause 9.2) $20,000 Amounts of Insurance (Clause 10.3(a) and (b)) Public Liability Insurance: $20,000,000 Third Party Property: $5,000,000 Limit for Expert Determination (Clause 12.1(f)) $100,000 Particulars for Delivery of Notices (Clause 13.3) Council: Attn: Coordinator Holiday Parks Sunshine Coast Regional Council Locked Bag 72 Sunshine Coast Mail Centre QLD 4560 Manager: ……… ………………………………. Pty Ltd …………………………….. Qld 4558 Governing Law (Clause 15.8) Queensland
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Schedule 2 Payments
At the end of each month the Manager will submit to the Council Officer a detailed report, satisfactory to the Council Officer, showing the occupancy of the park and an income report “Charge Report“ produced from the computerised booking system “RMS”. The Manager will also submit a tax invoice detailing the agreed percentage of earned revenue for the previous month.
… % of the earned revenue of the caravan and camping sites (exclusive of GST)
If the Council Officer is satisfied that the claim is true and correct, Council will pay the manager within fourteen (14) business days after receipt of the claim, the invoiced amount.
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Schedule 3 Scope of Services 1 Management of the Facilities The Manager shall manage the Facilities and the use of the Facilities by Patrons and members of the public in accordance with all laws, local law and regulations, and subject at all times to the terms of this Agreement. 1.1 Service to the public The Manager must ensure that for each day of the term of this Agreement: (a) the reception is open to the public from 7.30 am until 7.00 pm; during the months of December and January, and for Fridays and Saturdays for the months of October, November, February, March and all public holiday long weekends and Queensland school holiday periods. Christmas Day is excepted when the reception shall be open to the public for any 2 hours between 9.00 am and 12 noon. (b) the reception is open to the public from 7.30am until 6.00 pm, during the months of February, March, April ,May, June, July, August, September, October and November and other periods not included in clause 1.1(a) above (c) the reception telephone is attended from 7.30 am until 8.30 pm; (d) a telephone answering machine is in operation when the reception telephone is not attended; (e) the after hours communication system ("the buzzer system") is operative for 24 hours each day, and any emergency calls are appropriately responded to whenever made, and any late booking or late arrival calls are responded to until 8.30 pm each night; (f) All three (3) amenity buildings are open for use at all times, other than when being cleaned; (g) collect fees from Patrons and issue receipts using the computerised booking system; (h) control the placement on the Facilities of all Patrons at tent or caravan sites and the Manager has the authority of the Council to direct any Patron as to the occupation of any site; (i) ensure that the Manager or a person on behalf of the Manager offers to accompany each Patron to the nominated accommodation site, and place the Patron’s caravan on the nominated site (if applicable); (j) ensure that all Patrons and persons using the Facilities do so in a manner so as not to cause undue noise, or interfere in any other way with other persons reasonably using the Facilities; and (k) ensure that staff employed by the Manager are equipped at all times with such form of local communication system as allows contact to and from the office. 1.2 Prohibitions The Manager must not without the written consent of the Council: (a) set up, or permit the installation of vending machines or coin operated appliances;
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(b) install or permit any person to set up a stall for the sale of goods, refreshments or services; (c) engage in the hiring, sub-letting or sale of any moveable dwelling; (d) conduct at or from the Facilities, any business activity (whether that business caters for Patrons of the Facilities or otherwise) other than the business of managing the Facilities as provided for in this agreement; and (e) approve the sale of permanent or storage caravans to be sold and remain on-site The Council’s approval may be subject to any conditions determined by the Council. 1.3 Promotions The Manager must: (a) ensure the professional presentation in the reception area of brochures, pamphlets, maps, booklets and similar material prepared for the purpose of promoting all or part of the Sunshine Coast; (b) display, and issue on request, the Sunshine Coast Holiday Parks brochure ; (c) prepare and submit an annual marketing plan to be approved by Council. (d) attend each year a minimum of one trade show as agreed by Council to assist in operating a trade stand for the promotion of the caravan and camping industry. (e) Maintain membership of the park with Family Parks Australia and attend, or be represented at, the Family Parks Australia annual conference. 1.4 Cleaning and maintenance The Manager must, at the Manager’s expense except as otherwise specified: (a) ensure that all facilities including showers, toilets, bathrooms and laundries, camp kitchens, BBQ’s and recreation facilities are cleaned and maintained as may be necessary and in any event on a daily basis provided that the equipment and consumables required for such cleaning and maintenance shall be provided by the Manager at the expense of Manager; (b) ensure all amenity buildings are available for use by patrons at all times other than when being cleaned. (c) ensure that the Facilities and any improvements on the Facilities, (including without limiting the generality of this, all buildings, on-site accommodation, fences and recreational equipment are kept) and maintained in a safe, and tidy condition to the reasonable satisfaction of the Council’s representative, at all times. The Council shall provide, at the Council’s expense, the materials required by the Manager to perform this service. The Manager shall, at the Manager’s expense provide all labour required; (d) ensure that all lawns are watered, fertilised, top dressed, aerated, edged and mowed (and clippings collected), and that trees, shrubs and gardens are fertilised, watered and trimmed as reasonably necessary. Unless otherwise approved by the Council, lawns shall be mowed and edges trimmed as may be necessary and not less frequently than once every ten days in the months from October to April, and not less frequently than once every twenty days in the months from May to September;
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(e) where occupancy levels exceed 75% of full capacity ensure that all amenities are cleaned twice daily; (f) ensure the orderly placement of garbage and recycling bins and maintain and clean and disinfect bins on a weekly basis. Collection costs from Sunshine Coast Waste services shall be met by the Council; (g) ensure that all necessary minor repairs are performed as required from time to time and in a proper and workmanlike manner; (h) permit the Council at any time to make any repairs, improvements or alterations to the Facilities, its buildings, appliances, reception or other buildings; (i) ensure that all proposals for the making of improvements or alterations to the Facilities buildings (including the reception) are approved by the Council before any work is commenced; (j) provide a facility to shred and compost garden trimmings if required; (k) notify the Council at the earliest possible time of any defect in any goods, plant, property or equipment used on or in connection with the Facilities; and (l) maintain the nature strip and footpaths within the road reservations bounding the Facilities to the edge of the kerb and gutter, to present a tidy and pleasant appearance to the Facilities extremity. Works include mowing the grassed areas, garden maintenance, removal of litter and rubbish and general cleaning works. The Manager shall provide all materials, plant and labour required to perform these tasks at the Manager’s expense. The Manager is under no obligation to make any structural repairs or alterations to any buildings on the Facilities, but the Manager must notify the Council promptly of any events or circumstances which may necessitate the making of such repairs or alterations. 1.5 Provision of plant equipment and consumables The Manager must provide, at the Manager’s expense: (a) all labour for cleaning and maintenance; (b) all plant and equipment required for the day-to-day operations and cleaning and maintenance of the Facilities; (c) an item of plant or equipment (subject to the approval of the Council’s representative) capable of placing caravans on site; (d) all consumable goods used in the cleaning and maintenance of the grounds/buildings and recreational facilities in the Facilities including petrol, oils, mower blades for plant and cleaning equipment and weed sprays, top soil and fertilizers for lawns; (e) maintenance of all plant and equipment either owned by or hired by or used by the Manager; (f) all small tools; (g) The existing Facilities business telephone number (07) 5446 1474 is to remain in operation at all times, and the Manager has no right to alter, transfer or cancel the number without the written permission of Council;
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(h) staff uniforms in accordance with the Sunshine Coast Holiday Parks Branding Guidelines and approved by Council’s representative; and (i) all amenities cleaning agents, chemicals, toilet paper, paper towels and equipment. If the Manager wishes equipment or services to be supplied or operated by third parties in order to carry out services required to be carried out by the Manager under this Agreement, the Manager must obtain the prior written approval of the Council, and the cost of provision of those services and equipment shall be met by the Manager. 1.6 On-site accommodation (a) The Council may, at any time, place on the Facilities on-site accommodation or facilities of any type for rental. If it does so, the Manager must manage that accommodation in accordance with the terms of this Agreement. (b) Where on-site accommodation is let for occupation by Patrons, the Manager shall clean that accommodation thoroughly as soon as possible after the Patrons have vacated, and in any event on the same day as they have vacated. (c) The manager to arrange at Council’s expense the hire of linen for use in the onsite accommodation. (d) The manager to arrange at Manager’s expense the provision of complimentary tea and coffee making consumables for the on-site accommodation.
2 Provision of labour (a) The Manager must supply at the Manager's expense all labour (either by employment or contract) necessary for the proper management, operation, cleaning, repair and maintenance of the Facilities. The Manager shall provide to the Council from time to time as requested, evidence of the Manager’s expenditure on labour for the management, operation, repair and maintenance of the Facilities. (b) If the Council directs the Manager to perform any cleaning, repair or maintenance work on the Facilities which the Manager is required to perform at the Manager’s cost pursuant to this Agreement and the Manager is unable to supply the necessary labour, within a reasonable time, the Council may employ any necessary labour. The cost to the Council of performing that work, and any reasonable on-costs shall be paid by the Manager to the Council. The Council may off-set the amount required to be paid by the Manager pursuant to this paragraph against any payments to be made to the Manager under this Agreement. (c) The Manager must at the Manager’s cost: (i) within seven (7) days of the employment of any person notify the Council in writing of the name, date of birth and address of that person, as well as particulars of that person's duties; (ii) ensure that all employees are suitably attired in uniforms with name tag when working, and that all the employees behave courteously to Patrons and the public;
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(iii) ensure that any employees are paid at the rates of pay provided for in any relevant legislation, industrial award, or enterprise agreement; (iv) ensure that all statutory requirements in relation to the employment of those persons are complied with, including without limiting the foregoing, workers' compensation requirements, superannuation requirements, taxation requirements, and payroll tax requirements; (v) keep at all times proper records to enable the Council to ascertain that all statutory requirements are complied with, and provide to the Council access to those records on reasonable request; (vi) before employing any person, require that that person produce to the Manager (and produce to the Council on request) a certificate from a medical practitioner showing that the person is in a sufficient state of health to perform the intended work activities; (vii) provide to the Council forthwith upon the commencement of this Agreement, and at any time reasonably requested by the Council, certificates from a medical practitioner showing that all persons engaged in the performance of this Agreement are in a sufficient state of health to perform the intended work activities; and (viii) the Manager and at least one other staff member shall possess, or give an undertaking to obtain within three months of awarding of the contract, a current first aid certificate.
3 Leave for Manager (a) The Manager may take reasonable holidays but they are not to exceed more than six (6) continuous weeks per year. (b) Unless otherwise approved by the Council annual leave shall not be taken during Queensland or New South Wales School holidays, or other peak periods. (c) Any relief staff engaged to manage the Facilities during the periods of absence of the Manager shall be approved of in writing by the Council prior to their engagement.
4 Council to supply utilities (a) The Council shall, at the Council’s expense, supply all electricity, gas and water as is required for the operation of the Facilities, and shall meet all rates, taxes and rentals payable in respect of the Facilities. (b) Washing machines and driers are provided by a separate contract arranged by Council.
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5 Specific Item Responsibilities The following table outlines the particular responsibilities of the Council and the Manager.
Council Contract Manager Group / bulk advertising- including Site maps and brochures Local advertising and separate Mooloolaba Beach Holiday Park advertising- over and above the group/ bulk advertising by Council Computer equipment hardware (e.g. Computers and printers) Printer consumables (ink cartridges, paper) Computer software, EFTPOS merchant facilities and booking systems Stationery, paper, pens and paper All cleaning items and toilet paper (2 ply) Street lighting and Electricity supply accounts Fluorescent tubes & light bulbs Security patrol contractor Staff uniforms and name tags Waste bin collection fees Waste bin placement and cleaning Rates and Water supply fees and other Utility costs including LPG (Gas) Water meter readings as required Laundry equipment – Washing machines and driers serviced by separate contract Amenity consumables – including liquid soap, toilet paper, cleaning equipment, cleaning agents and chemical supplies and toilet paper (2 ply). Business Licence, ie Accommodation Park Local Law annual licence fee. Comply with Local Law regulations Asset Management and Maintenance – including internal roadways, buildings, electrical services, trees. Includes engaging tradesman for repairs, maintenance and improvements Mowers and all gardening and lawn equipment and vehicles. Fire services, including extinguisher servicing Recreational equipment Website, internet service and office telephone Personal telephone Membership of Caravan Parks Association of Qld Membership of Family Parks Australia and purchase of loyalty cards and revenue from card sales Subscription to Caravan Industry Association of Australia (CIAA) Amenity building washroom services, including sanitary bins and sharp containers Pest Control
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Schedule 4 - Rules for the expert determination process 1 Commencement The expert determination process (Process) must commence with the acceptance by the expert of the appointment to act to determine the dispute or difference in accordance with these Rules and the Code of Conduct for an expert (Code of Conduct). 2 Written submissions 2.1 Within 14 days of the date of the commencement of the Process, the party initiating the Process (Party 1) must provide to the other party (Party 2) or its nominee and the expert a statement of the dispute or difference, any agreed statement of facts and a written submission on the dispute or difference in support of Party 1's contention. 2.2 Within 21 days thereafter Party 2 or its nominee must provide to Party 1 and the expert a written response to the written submission of Party 1. 2.3 If, upon the application of Party 1, the expert considers it appropriate, Party 1 may make a written response to the response of Party 2 under clause 2.2 above within the time allowed by the expert and a copy of such written response must be provided by Party 1 to Party 2. 2.4 If, upon the application of Party 2, the expert considers it appropriate, Party 2 may make a written response to the response of Party 1 under clause 2.3 above within the time allowed by the expert and a copy of such written response must be provided by Party 2 to Party 1. 2.5 If the expert decides further information or documentation is required for the determination of the dispute or difference the expert may: (a) require a further written submission or documents from either or both parties, giving each party a reasonable opportunity to make a written response to the other's submission; and (b) call a conference between the parties and the Expert in accordance with clause 3 below. 3 Conference 3.1 When the expert determines that a conference between the parties is necessary, the expert is responsible for arranging the conference at a venue and time convenient for the parties and must notify them accordingly. 3.2 At least seven days prior to the conference, the expert must inform the parties of the matters to be addressed at it. 3.3 At the time and place notified for any conference the parties must appear before the expert to make representations on the matters the subject of the conference. 3.4 The expert in conducting the conference is not bound by the rules of evidence. 3.5 At a conference either party may have legal or other representation. 3.6 The conference must be held in private. 3.7 Transcripts of the conference proceedings will be taken and be available to the expert and the parties if so required by either party.
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3.8 All proceedings and submissions relating to the Process must be kept confidential between the parties and the expert. Information must not be divulged to any other party, at any time or in any circumstances except with the prior written consent of the parties or as may be required by law or in order to enforce the determination of the expert. 4 The determination 4.1 As expeditiously as possible after the receipt of the submissions or after any conference and, in any event not later than 3 months after the commencement of the Process unless the time has been extended by agreement between the parties, the expert must determine the dispute or difference between the parties and notify such determination in writing to the parties. The expert must give a brief statement of his or her reasons for the determination to the parties. 4.2 Where the determination made by the expert contains: (a) a clerical mistake; (b) an error arising from an accidental slip or omission; (c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter; or (d) a defect of form; the expert must correct the determination. 5 Termination 5.1 Subject to clause 4.2, the Process concludes when the expert has notified his or her determination to the parties. 5.2 The Process will be terminated if the expert becomes unable to conclude the Process by reason of illness, death, mental incapacity or failure to act and in any such event the provisions of the Contract relating to the determination of disputes or differences by an expert will apply. 6 Costs 6.1 Each party bears its own costs of the Process and must share equally the costs of the expert and the Process. 6.2 If directed to do so by the expert, both parties must deposit security for costs at the commencement of the Process. 6.3 Where the Process is terminated prior to the determination of the dispute or difference each party bears its own costs of the process so far. The costs of the expert and of the Process must be borne equally by the parties. 7 Miscellaneous Unless otherwise stated, these Rules may be modified only by agreement of the parties and of the expert.
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Schedule 5 Code of conduct for an expert (Code of Conduct)
1. The function of the expert is to make a determination on the dispute or difference in accordance with the Rules, this Code of Conduct, and the letter of appointment of the expert. 2. The expert will receive the written submissions and responses of the parties in accordance with the procedures specified in the Rules and may require such further information or documentation from the parties as he or she thinks is necessary for the determination of the dispute or difference in accordance with the procedures specified in the Rules (Schedule 4). 3. The expert must decide whether a conference between the parties and the expert is necessary for receiving further information on any specified matter(s). If such a conference is thought to be necessary, the expert must inform the parties of the precise subject matter(s) of the hearing and must hear representations only on these matter(s). 4. The expert is not bound by the rules of evidence and may receive information at any conference in any manner the expert thinks fit as long as at all times, the requirements of procedural fairness are met. 5. The expert must disclose all information and documents received from either party to the other party. Where a party fails to make a written submission or appear at any conference after having received due notice, the expert may proceed with the Process. Save as provided above, no consultation must take place other than in the presence of both parties. 6. The expert must reach his or her determination on the basis of the information received from the parties and on the basis of his or her own expertise. The decision must be reached as an expert and not as an arbitrator. The expert's determination must be made as expeditiously as possible and in any event no later than 3 months after the commencement of the Process, unless the time is extended by agreement between the parties. The determination and a brief statement of the reasons for the determination, signed by the expert, must be notified to the parties in writing promptly. 7. The expert must respect the confidentiality of all information received either through written submissions or oral proceedings. Information acquired through the Process must not be divulged to any other body except with the prior written consent of the parties. 8. If the expert becomes aware of any circumstances that might reasonably be considered to affect adversely the expert’s capacity to act independently or impartially, the expert must inform the parties immediately. The expert must in such circumstances terminate the proceedings, unless the parties agree otherwise.
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Schedule 6 Drawings
Lot 100 SP 236883
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Executed as an Agreement.
This Agreement is signed for and on behalf of SUNSHINE COAST REGIONAL COUNCIL by
Signature: ………………………………………….. Name : ………………………………………….. Position: ………………………………………….. Who warrants that he/she is duly authorised to sign for Sunshine Coast Regional Council.
In the presence of …………………………………………..
This Agreement is executed by ………………..Services Pty Ltd Pty Ltd ACN ……………..in accordance with Section 127 of the Corporations Act 2001:
Signature: ………………………………………….. Name: ………………………………………….. Position: Director
Signature: ………………………………………….. Name: ………………………………………….. Position: Director/Secretary