licence agreement · gst means the goods and services tax imposed by the gst act. gst act means a...
TRANSCRIPT
[6705253: 17431143_2]
Interstate offices
Canberra Sydney
Affiliated offices around the world through the
Advoc network - www.advoc.com
Draft: 6 September 2016
Licence Agreement Royal Botanic Gardens Board ABN 36 600 553 934 and
Lawyers 140 William Street Melbourne Victoria 3000 Australia
Telephone 61 3 9258 3555 Facsimile 61 3 9258 3666
[email protected] www.maddocks.com.au
DX 259 Melbourne
[6705253: 17431143_2] page i
Contents
1. Definitions and interpretation ................................................................................................2
1.1 Definitions ..................................................................................................................2 1.2 Interpretation ..............................................................................................................5
2. Conditions Precedent .............................................................................................................5
3. Grant of Licence ......................................................................................................................6
4. Term and commencement......................................................................................................6
5. Payment by the Licensee .......................................................................................................7
5.1 Obligation to Pay .......................................................................................................7 5.2 Interest on Overdue Amounts ....................................................................................7
6. GST ...........................................................................................................................................7
7. Use of Licensed Area ..............................................................................................................8
8. Use of Board Lands ................................................................................................................8
9. Obligations of the Licensee ...................................................................................................8
9.1 Licensed Activity ........................................................................................................8 9.2 Bump-in and Bump-out periods .................................................................................9 9.3 Facilities and Structures ............................................................................................9 9.4 Catering and Other Services .................................................................................. 10 9.5 Security ................................................................................................................... 10 9.6 Vehicles .................................................................................................................. 10 9.7 Cleaning and Removal of Waste ............................................................................ 10 9.8 Employee Discount ................................................... Error! Bookmark not defined. 9.9 Licensee’s Sponsors ............................................................................................... 11 9.10 Emergency Procedures .......................................................................................... 11 9.11 Statutory Requirements .......................................................................................... 11 9.12 Compliance with Board Policy ................................................................................ 11 9.13 Noise Requirements ............................................................................................... 11
10. Communication and information ........................................................................................ 12
11. Fundraising ........................................................................................................................... 12
12. KPI’s ...................................................................................................................................... 13
13. Confidentiality ...................................................................................................................... 13
14. Insurance .............................................................................................................................. 14
14.1 Insurance ................................................................................................................ 14 14.2 Accident Compensation Indemnity ......................................................................... 14 14.3 Public and Product Liability Policies ....................................................................... 14 14.4 Proof of Currency .................................................................................................... 14
15. Assignment, subcontracting and change of control ........................................................ 15
15.1 Approval Required for Assignment ......................................................................... 15 15.2 Change in Effective Control .................................................................................... 15 15.3 Workforce Contractors ............................................................................................ 15 15.4 Effect ....................................................................................................................... 15
16. Cancellations ........................................................................................................................ 15
17. Dispute Resolution .............................................................................................................. 16
17.1 Disputes .................................................................................................................. 16 17.2 Notice of Disputes ................................................................................................... 16
[6705253: 17431143_2] page ii
17.3 Initial Dispute Resolution Meeting .......................................................................... 16 17.4 Referral of Dispute .................................................................................................. 16
18. Force Majeure ....................................................................................................................... 16
19. Termination ........................................................................................................................... 17
20. Consequences of Termination ........................................................................................... 17
21. General .................................................................................................................................. 17
21.1 Amendment............................................................................................................. 18 21.2 Entire Understanding .............................................................................................. 18 21.3 Legal Costs and Expenses ..................................................................................... 18 21.4 Jurisdiction .............................................................................................................. 18
22. Ownership of Items .............................................................................................................. 18
23. Waiver .................................................................................................................................... 18
24. Relationship and Acknowledgment ................................................................................... 18
24.1 Relationship ............................................................................................................ 18 24.2 Acknowledgment .................................................................................................... 19
25. Notices .................................................................................................................................. 19
26. Privacy................................................................................................................................... 17
Schedule 1 Plan of Licensed Area .............................................................................................1
Schedule 2 Details of Licence ....................................................................................................1
Schedule 3 Fees ...........................................................................................................................2
Schedule 4 Pro-Forma Financial Statement..............................................................................3
[6705253: 17431143_2] Licence Agreement _ Moonlight_ Final approved by G-i-C 12 September 2006
Lawyers 140 William Street Melbourne Victoria 3000 Australia
Telephone 61 3 9258 3555 Facsimile 61 3 9258 3666
[email protected] www.maddocks.com.au
DX 259 Melbourne
Interstate offices
Canberra Sydney
Affiliated offices around the world through the
Advoc network - www.advoc.com
Licence Agreement
Dated
Parties
Name Royal Botanic Gardens Board ABN 36 600 553 934
Address Birdwood Avenue, Melbourne, Victoria 3004
Facsimile
Contact
Short name the Board
Name
Address
Facsimile
Contact
Short name the Licensee
Background
A. The Board is a body corporate established under the Act and has power to enter into contracts and, subject to the approval of the Governor in Council, to grant licences in respect of the Gardens.
B. The Board has issued a Request for Tender to carry out the Licensed Activity in the Licensed Area and the Licensee has made a Tender Response which has been accepted by the Board.
C. The Board and the Licensee have agreed that the Licensee shall carry out the Licensed Activity in the Licensed Area on the terms and conditions contained in this Agreement.
D. The Licence is subject to the approval of the Governor in Council, pursuant to section 24(2)(b) of the Act.
E. The Licence is for a purpose that will promote the objectives of the Act and the functions of the Board in accordance with section 24(3) of the Act.
[6705253: 17431143_2] page 2
The parties agree
1. Definitions and interpretation
1.1 Definitions
In this Agreement:
Act means the Royal Botanic Gardens Act 1991.
Agreement means this Licence Agreement and any Schedules and other documents annexed thereto, and includes any agreed written modifications or amendments to the Licence Agreement.
Annual Season means those periods in the Term in which the Licensed Activity may be carried out by the Licensee, being the period commencing on the second Tuesday in December and concluding on the fourth Saturday of the following March and includes any extended period granted by the Board pursuant to clause 3.4.
Board means the Royal Botanic Gardens Board established under the Act and includes the person or persons to whom the Board delegates specific functions and responsibilities for the purposes of this Agreement, as notified to the Licensee from time to time.
Board Lands means any land over which the Board has management powers by virtue of the Act.
Board’s Equipment means the fixtures, fittings and equipment the Board has on the Licensed Area and may bring on to the Licensed Area after the commencement of this Agreement and that the Licensee may bring on to the Licensed Area to replace existing Board’s Equipment.
Bond means the bond payable by the Licensee to the Board pursuant to sub-clause 5.1.1(c) and specified in Item C of Schedule 3.
Bump-in period means the period specified in Item D of Schedule 2 in which the Licensee may start to set up its operations prior to commencement of each Annual Season.
Bump-out period means the period specified in Item D of Schedule 2 in which the Licensee may dismantle its operations after completion of each Annual Season.
Business Day means any day (other than a Saturday) on which banks are open for business in Melbourne.
Business Hours means 9.00am to 5.00pm Monday to Friday, excluding days that are public holidays.
Capital Contribution means the amount payable by the Licensee to the Board pursuant to sub-clause 5.1.1(e) and specified in Item D of Schedule 3 to support the Licensed Activity through improvements to assets and infrastructure.
Code of Practice means a Code of Practice defined in, and approved under the Privacy and Data Protection Act 2014.
Commencement Date means the date the last party executes this Agreement or such other date as the parties agree in writing.
Condition Precedent means the condition stated in clause 2.1
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Condition Precedent Date means the date specified in Item G of Schedule 2.
Confidential Information means all confidential information exchanged between the parties (either before or after the date of this Agreement) for or in connection with the performance of this Agreement, including:
(a) any knowledge gained by either party about the operation of the other party's business operations;
(b) any information or document provided by a party to the other under this Agreement or which is acquired by a party and would not have been so acquired but for the performance by a party of its obligations or the enjoyment of its rights under this Agreement;
(c) any other information including information regarding costs, prices and pricing policies, volume of sales, promotional methods, identity of or information about personnel, clients or suppliers used by a party to this Agreement, or any other information of a similar confidential nature, or any information relating to any of the actual or anticipated business or affairs of a party, or of any of its clients, suppliers, consultants, licensors or licensees;
but does not include information which:
(d) is or becomes public knowledge other than by breach of this Agreement or by any other unlawful means;
(e) has been developed or acquired by a party independently of this Agreement; or
(f) is required by law to be disclosed.
Corporations Act means the Corporations Act 2001 (Cth).
Effective Control means in relation to the Licensee the:
(a) control of the composition of the board of directors of the party; or
(b) control of more than half the voting rights attaching to the shares in the party; or
(c) control of more than half the issued share capital in the party (excluding any part which carries no right to participate beyond a specified amount in the distribution of either profit or capital); or
(d) control through the acquisition by any means of a relevant interest (whether actual or deemed within the meaning of the Corporations Act) in shares of the party sufficient to allow that person either alone or jointly to exercise the control referred to in items (a), (b) or (c).
Further Term means a period of five years.
Gardens means the land defined as ‘botanic gardens’ in Part 1 of Schedule 1 to the Act.
Governmental Agency means a government or government department, a governmental, semi-governmental or judicial person or a person (whether autonomous or not) charged with the administration of any applicable law.
Gross Receipts means all amounts received or receivable by the Licensee or on its behalf (excluding GST) from the conduct of the Licensed Activity including without limitation monies received from ticket sales of any description (less booking fees), the aggregate actual or face
[6705253: 17431143_2] page 4
value of tickets distributed by the Licensee or on its behalf for fundraising or promotional events, receipts from Hire Items and from the provision of food, beverages and hospitality packages.
GST means the Goods and Services Tax imposed by the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999.
Hire Items means such items as the Licensee (or its agents or sub-contractors) offer to hire out to Invitees from time to time, including but not limited to outdoor furniture such as chairs, ‘bean beds’ and blankets.
Information Privacy Principles means the Information Privacy Principles set out in the Privacy and Data Protection Act 2014 (Vic).
Invitee means any person invited on to Board Lands by the Licensee in connection with the Licensed Activity.
KPIs means the key performance indicators agreed under clause 12.2 as varied from time to time in accordance with clause 12.4.
Licence means the Licence granted by the Board to the Licensee pursuant to clause 3.1 hereof.
Licence Fee means the base fee to be paid by the Licensee to the Board pursuant to sub-clause 5.1.1(a) and set out in Item A of Schedule 3.
Licensee’s Equipment means fixtures, fittings, fixed plant, equipment and chattels, and all tools and materials necessary for maintenance and cleaning and all other small items installed or brought on to the Licensed Area by the Licensee, other than items so installed or brought on to the Licensed Area by way of replacement of the Board’s Equipment.
Licensee’s Sponsor means any sponsor, supporter, promoter or business associate of the Licensee or the Licensed Activity.
Licensed Activity means motion picture exhibition and the other activities specified in Item A of Schedule 2.
Licensed Area means that part of the Board Lands being the area hatched in black on the Plan in Schedule 1 and any alternative area of the Board Lands agreed by the parties pursuant to clause 3.8.
Parties means the parties to this Agreement, namely the Board and the Licensee.
Policy and Protocol Manual means the Board’s manual of policies and protocols applicable to the provision of the Licensed Activity, as varied by the Board from time to time and notified in writing to the Licensee.
Schedule means a schedule to this Agreement.
Taxable Supply has the meaning contained in the GST Act.
Tax Invoice has the meaning contained in the GST Act.
Tender Response means the response provided by the Licensee to the tender request by the Board issued on or about 7 September 2016 in respect of the Licensed Activity.
Term means the period specified in Item B of Schedule 2.
[6705253: 17431143_2] page 5
1.2 Interpretation
1.2.1 'person' and words importing persons include bodies corporate;
1.2.2 where a party comprises two or more persons an agreement or obligation to be performed or observed by that party binds those persons jointly and each of them severally, and a reference to that party shall be deemed to include a reference to any one or more of those persons;
1.2.3 words importing the singular include the plural and vice versa and words importing the masculine include the feminine and neuter;
1.2.4 a reference to any Act of Parliament or section thereof or schedule thereto shall be read as if the words 'or any statutory modification or re-enactment thereof or substitution therefore' were added to the reference;
1.2.5 where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
1.2.6 each party includes its successors and assigns;
1.2.7 if any day appointed or specified by this Agreement for the payment of any money falls on a Saturday, Sunday or a day on which banks are not open for business in Melbourne, the day so appointed or specified shall be deemed to be the day following the day so appointed or specified which is not in turn a Saturday, Sunday or day on which banks are not open for business in Melbourne;
1.2.8 unless a contrary intention is apparent, a reference to money including a reference to dollars and expressions preceded by the symbol '$' is a reference to the legal currency of Australia; and
1.2.9 a reference to a clause, sub-clause, Item or Schedule is a reference to a clause, sub-clause, Item or Schedule of this Agreement.
2. Condition Precedent
2.1 The operation of this Agreement and the Licence created by it are subject to and conditional upon the approval of the Governor in Council pursuant to section 24(2)(b) of the Act (the condition precedent) on or before the Condition Precedent Date.
2.2 The Board must use its reasonable endeavours to ensure that the condition precedent is satisfied by the Condition Precedent Date.
2.3 Upon request from the Licensee from time to time the Board shall provide the Licensee with any current information it has as to progress towards the satisfaction of the condition precedent.
2.4 The Board must promptly notify the Licensee if it becomes aware that:
2.4.1 the condition precedent is satisfied; or
2.4.2 the condition precedent will not be satisfied before the Condition Precedent Date.
2.5 If the condition precedent is not satisfied by the Condition Precedent Date or such later date as the Parties in writing agree, then this Agreement is automatically terminated, and neither
[6705253: 17431143_2] page 6
Party shall have any claim against the other in respect of this Agreement or the non-satisfaction of the condition precedent.
3. Grant of Licence
3.1 Subject to the terms and conditions set out in this Agreement, and subject to the satisfaction of the Condition Precedent by the Condition Precedent Date, the Board hereby grants to the Licensee an exclusive Licence to conduct the Licensed Activity in the Licensed Area during each Annual Season of the Term and at the dates and times specified in Item C of Schedule 2.
3.2 The Licensee must not carry out any activity on the Licenced Area other than the Licensed Activity.
3.3 The Licensee must not permit the Licensee’s Sponsors to carry out any activity on the Licensed Area or elsewhere on the Board Lands without the Board’s prior approval, which approval may be refused or granted at the sole discretion of the Board.
3.4 If the Licensee wishes to extend any Annual Season, it shall apply to the Board in writing for approval, specifying the desired period of extension, not less than 14 days before the end of the Annual Season. The Board’s approval may be refused or granted at the sole discretion of the Board and approval may be granted on such terms as the Board stipulates.
3.5 Any alterations to the time and dates specified in Item C of Schedule 2 must first be approved in writing by the Board.
3.6 The Board agrees to allow the Licensee and the Licensee’s employees, servants, authorised agents, contractors and sub-contractors during the Term to access the Licensed Area in accordance with the requirements of the Policy and Protocol Manual.
3.7 The Board shall not grant a permit, licence or lease in any part of the Gardens to any competitor of the Licensee in relation to the operation of the Licensed Activity during the Term. The parties acknowledge and agree that nothing in this Agreement restricts the Board from granting a permit, licence or lease to a third party for the provision of any other activities at the Gardens.
3.8 If at any time during the Term the Board wishes or is required to carry out development works on or adjacent to the Licensed Area, which, in the Board’s opinion, would render the Licensed Area unsuitable for the Licensed Activity, it will advise the Licensee accordingly. The parties agree that immediately thereafter they will confer and co-operate in good faith to agree upon an alternative area within the Board Lands upon which the Licensed Activity may be conducted for the balance of the Term or for such shorter period as is agreed. Upon agreement being reached as to the new area, that new area will become the Licensed Area for the purposes of this Agreement. If agreement is reached during an Annual Season the new area will become the Licensed Area from the conclusion of the Bump-out period at the end of that Annual Season.
4. Term and commencement
4.1 This Agreement shall commence on the Commencement Date and, subject to clause 19, shall continue for the Term.
4.2 If the Licensee desires to enter into a Further Term, the Licensee must give the Board written notice of its intention to seek a Further Term, no later than six (6) months prior to the expiration of the Term.
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4.3 If the Licensee gives notice under clause 4.2, the Board must advise the Licensee not later than two (2) months prior to the expiration of the Term, whether or not it will grant the Licensee the Further Term.
4.4 If the Board agrees to grant a Further Term, this Agreement, or if the Board so requires, a modified Agreement, will apply for the Further Term.
5. Payment by the Licensee
5.1 Obligation to Pay
5.1.1 In consideration of the Board agreeing to grant the Licence to the Licensee, the Licensee agrees to make the following payments to the Board:
(a) the Licence Fee, which shall be paid monthly on the first day of each month during each Annual Season. In any month in which the Licensed Activity does not operate for a full calendar month, the Licence Fee for that month shall be reduced accordingly on a pro-rata basis;
(b) [other fees to be included]
(c) the Bond, which shall be paid at the commencement of each Annual Season and refunded to the Licensee at the end of that Annual Season, less any amount withheld by the Board to cover the cost of any damage to the Board Lands occurring as a consequence of the carrying on of the Licensed Activity by the Licensee and less any other amount payable to the Board by the Licensee under this Agreement that remains unpaid at the conclusion of the Annual Season. Damage may include, but is not limited to, turf decompaction of any lawns and cracked curbing;
(d) all electricity, gas, telephone or other utility charges incurred by the Board which, in the reasonable assessment of the Board, result from the conduct of the Licensed Activity within thirty (30) days of receipt of a Tax Invoice from the Board; and
(e) the Capital Contribution, which shall be paid at the commencement of each Annual Season.
5.1.2 With each monthly payment of the Licence Fee, the Licensee shall provide a fully completed written statement in the form of Schedule 4. This written statement is to be signed by the Licensee’s financial auditor.
5.2 Interest on Overdue Amounts
5.2.1 If the Licensee has not paid to the Board any amount payable under this Agreement within seven (7) days from the due date for payment, the Licensee will be liable to pay interest on the overdue amount at the rate set out in Item F of Schedule 2 from the due date for payment up to and including the date of payment.
6. GST
6.1 Expressions used in this clause have the same meaning given to those expressions in the GST Act.
[6705253: 17431143_2] page 8
6.2 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST.
6.3 Subject to clause 6.5 hereof, if GST is imposed on any Taxable Supply made under or in connection with this Agreement (a ‘GST Amount’), the recipient must pay to the supplier the GST Amount in addition to and (unless otherwise agreed) at the same time as payment for the Taxable Supply is required to be made under this Agreement.
6.4 The Licensee will add to all payments it is required to make to the Board under this Agreement the appropriate GST Amount.
6.5 Unless otherwise agreed, the recipient of a Taxable Supply will have no obligation to make any payment in respect of that Taxable Supply until the supplier has provided the recipient with a valid Tax Invoice for that Taxable Supply.
7. Use of Licensed Area
7.1 The Licensee shall comply with all requirements of the Policy and Protocol Manual and any reasonable directions given by the Board in relation to the Licensee’s use of the Licensed Area.
7.2 The Licensee shall obtain and maintain in effect, all necessary approvals and permissions, including but not limited to an occupancy permit from the City of Melbourne if required, during the Term and from all relevant Governmental Agencies, in respect of use of the Licensed Area and the exercise of any of its rights under this Agreement. The Licensee must obtain such approvals and permissions at its own cost. The Licensee agrees to reimburse the Board for any fees or charges charged by a Governmental Agency for any necessary approval or permission in the event that the Board obtains, on behalf of the Licensee, any necessary approval or permission from a Governmental Agency.
7.3 The Licensee shall comply with any notice or requirement of a Governmental Agency that affects its use of the Licensed Area.
8. Use of Board Lands
8.1 The Licensee shall comply with the requirements of the Policy and Protocol Manual in relation to any access it has to Board Lands pursuant to clause 3.6.
8.2 The Licensee shall comply with any notice or requirement of a Governmental Agency that affects its use of the Board Lands.
9. Obligations of the Licensee
9.1 Licensed Activity
9.1.1 The Licensee will carry out the Licensed Activity throughout the Term
(a) with all due care and skill
(b) to a high professional standard, and
(c) in accordance with the representations made in the Tender Response.
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9.1.2 The Licensee must throughout the Term, actively promote and take all reasonable steps to maximise attendance by Invitees at the Licensed Activity.
9.2 Bump-in and Bump-out periods
9.2.1 The Licensee shall set up for the Licensed Activity in the Licensed Area during the Bump-in period, and shall pack up the Licensed Activity during the Bump-out period in accordance with the requirements of the Policy and Protocol Manual.
9.2.2 Prior to entering the Licensed Area for the Bump-in period, the Licensee shall undertake an inspection of the Licensed Area and complete a condition report. The condition report must be submitted to the Board in accordance with the requirements of the Policy and Protocol Manual and prior to the date the Bump-in period commences.
9.2.3 At the conclusion of the Term and within seven (7) working days of completion of the Bump-out period, the Licensee shall undertake an inspection of the Licensed Area and complete a condition report. The condition report must be submitted to the Board in accordance with the requirements of the Policy and Protocol Manual.
9.3 Facilities and Structures
9.3.1 The Licensee shall not erect any structures or bring any heavy equipment including lighting and sound equipment and cables into the Licensed Area or across Board Lands, except with the approval of the Board and in accordance with the requirements of the Policy and Protocol Manual. The structures contemplated by this sub-clause include but are not limited to screen poles, box office and projection shed.
9.3.2 Without limiting the generality of the immediately preceding sub-clause, unless otherwise approved by the Board, the Licensee shall remove all items brought onto the Board Lands for the purposes of rehearsal or performance of the Licensed Activity at the end of each rehearsal or performance of the Licensed Activity.
9.3.3 It is the responsibility of the Licensee to determine the number of toilets that the Licensee is legally required to provide for the number of Invitees expected to attend sessions of the Licensed Activity throughout each Annual Season. In the event that the number of permanent toilet facilities at the Gardens is insufficient for the expected number of Invitees, the Licensee shall obtain and provide, at its own cost, sufficient temporary toilet facilities to meet the requirements of the Building Code of Australia or any other legal or building requirements regarding the number of toilets to be provided at public events. The temporary toilet facilities must meet any applicable Australian Standards or other applicable standards, regarding the quality of the facilities.
9.3.4 The Licensee shall provide disabled as well as male and female toilet facilities, and shall provide suitable access to ensure that Invitees can safely access and use all toilet facilities, whether permanent or temporary.
9.3.5 If the Licensee obtains temporary toilet facilities in accordance with sub-clause 9.3.3, the prior approval of the Board is required. The temporary toilet facilities are to be located in the Licensed Area (shown in Schedule 1). For this purpose, it is the Board’s intention to provide a concrete facility with direct sewer connection. If this concrete facility is unavailable prior to commencement of this Agreement or for any Annual Season, the approval of the Board is required regarding another suitable location for the temporary toilet facilities.
9.3.6 The Licensee must arrange at its own cost for the temporary toilet facilities and permanent toilet facilities at the Gardens that are commonly used by Invitees to be
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professionally cleaned after conclusion of the Licensed Activity each night during the Annual Season and prior to the reopening of the Gardens the following day.
9.4 Catering and Other Services
9.4.1 During each Annual Season, the Licensee may provide to Invitees products or services that are related to the Licensed Activity, including but not limited to Hire Items for use by Invitees, food and beverages, and the sale of merchandise related to the Licensed Activity.
9.4.2 The Licensee may arrange for the provision and sale of food and beverages for Invitees, to be available on each night that the Licensed Activity is conducted during the Term. The Licensee may sub-contract the provision of food and beverages to a catering organisation, provided that the Licensee advises the Board of the name of the catering organisation prior to the commencement of each Annual Season.
9.4.3 The Licensee shall be responsible for determining whether a Liquor Licence is required for the provision of beverages in the Licensed Area, and shall be responsible for obtaining and maintaining the Liquor Licence for the Term, if such licence is required. The Licensee shall pay all costs associated with obtaining a Liquor Licence, including any cost arising from a breach of the terms and conditions of the licence.
9.4.4 The Licensee shall ensure that all of its staff and contractors operating on Board Lands shall be clearly identified by wearing a distinct uniform.
9.5 Security
The Licensee must for each Annual Season, at its cost:
(a) meet the security standards and obligations as set out in the Policy and Protocol Manual; and
(b) engage a security services provider where necessary to meet those standards.
9.6 Vehicles
The use of any vehicles in the Gardens is strictly controlled and subject to requirements for use and access as set out in the Policy and Protocol Manual. The Licensee shall ensure that all its employees, servants, authorised agents, contractors and sub-contractors of the Licensee and the Licensee’s Sponsors comply with these provisions, but the Licensee remains responsible for the actions of such persons.
9.7 Cleaning and Removal of Waste
9.7.1 The Licensee must, at its own cost, maintain the Licensed Area at the standards of hygiene and cleanliness as required by law and in accordance with the Policy and Protocol Manual.
9.7.2 The Licensee must seek the Board’s approval prior to appointing a cleaning contractor to clean the Licensed Area.
9.7.3 The Board will procure a dumpmaster bin to be made available to the Licensee for the purpose of rubbish disposal in accordance with the Policy and Protocol Manual.
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9.7.4 The Licensee must pay to the Board an amount representing the cost incurred by the Board for waste management services provided under sub-clause 9.7.3, in the time and in the manner set out in the Policy and Protocol Manual.
9.8 Licensee’s Sponsors
9.8.1 Prior to the commencement of each Annual Season, the Licensee must advise the Board of the Licensee’s Sponsors for that Annual Season.
9.8.2 The Licensee is responsible for the acts and omissions of the Licensee’s Sponsors in relation to the Licensed Activity and must ensure that all Licensee’s Sponsors comply with all requirements of the Policy and Protocol Manual relating to use of the Licensed Area.
9.9 Emergency Procedures
The Licensee must ensure that all of the Licensee’s employees, contractors and sub-contractors are aware of and adhere to the Board’s emergency procedures.
9.10 Statutory Requirements
In the performance of the Licensed Activity, the Licensee must ensure that the Licensee’s employees, agents and contractors comply with:
(a) the requirements of any applicable legislation, including without limitation the Act and the Royal Botanic Gardens Regulations 2014, occupational health and safety requirements and heritage requirements;
(b) any relevant Australian standards or applicable codes of practice; and
(c) the requirements of any Governmental Agency (including any notice, order or direction) having jurisdiction over the Licensed Activity. Where the Licensee receives such a notice, order or direction, it must immediately provide a copy to the Board.
9.11 Compliance with Board Policy
The Licensee must itself and ensure that the Licensee’s employees understand and comply with the Board’s policies and procedures as notified by the Board to the Licensee in writing from time to time or as otherwise set out in the Policy and Protocol Manual.
9.12 Noise Requirements
In the performance of the Licensed Activity, the Licensee must, and must ensure, that the Licensee’s employees, agents and contractors comply with:
(a) the requirements of any applicable legislation, any relevant Australian standards or applicable codes of practice, and government or council regulation in relation to noise levels in relation to the conduct of the Licensed Activity.
(b) the requirements of any Governmental Agency (including any notice, order or direction) having jurisdiction over the Licensed Activity. Where the Licensee receives such a notice, order or direction, it must immediately provide a copy to the Board.
(c) any court order binding upon the Board or the Licensee in relation to the Licensed Activity.
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10. Communication and information
10.1 Throughout each Annual Season, the Licensee will meet with the appointed representative of the Board on a weekly or other basis deemed suitably convenient, to keep up to date with current events concerning the Licensed Activity and to facilitate the flow of information between the parties.
10.2 The Licensee shall provide to the Board a full contact list of employees, agents, contractors and security personnel including:
(a) the identity of the key on-site person/s responsible for the Licensed Activity; and
(b) the identity of the key off-site producer responsible for the Licensed Activity;
and provide 24-hour contact with the above persons.
10.3 The Licensee shall place information board/s at the point at which the Invitees will enter Board Lands. The board/s will indicate each Licensed Activity performance starting time, starting location, current ticket information, the name of the Licensee and contact number for Licensed Activity information, and any other relevant information. Copy, size and design of the board/s shall be subject to the approval of the Board prior to their manufacture.
10.4 During Business Hours, the Licensee may deploy information board/s on such other areas of the Board Lands as the Board approves.
10.5 The Licensee shall not print, publish or distribute any advertisements, pamphlets, programs or other publications regarding the Licensed Activity unless they have first been approved by the Board.
10.6 The Licensee is permitted to use additional signage to promote the Licensed Activity, provided that such signage and its location has been approved by the Board, is in accordance with the provisions of the Policy and Protocol Manual and has received the approval of any relevant Governmental Agency, including Heritage Victoria and the City of Melbourne. It is the responsibility of the Licensee to obtain such approval from the relevant Governmental Agency.
10.7 The Licensee agrees that, at the Board’s request, prior to each nightly screening of the Licensed Activity in the Term, and any Further Term under sub-clause 4.3, it shall screen an advertisement, including images, promoting the Royal Botanic Gardens Victoria and its activities and highlights. The advertisement shall be produced by the Board at its own expense and shall not exceed thirty (30) seconds’ duration. The Licensee shall not charge the Board any fees for the screening of the advertisement.
10.8 The Licensee agrees to the Board including in the listings for the Royal Botanic Gardens Victoria in the ‘White Pages’ telephone directory (hard copy and website), a listing for an external telephone number for the Licensee, in order to deflect telephone calls from the Royal Botanic Gardens Victoria reception. The Licensee agrees to reimburse the Board for the cost of the listing within thirty (30) days of receipt of a Tax Invoice from the Board.
11. Fundraising
11.1 The Licensee agrees to conduct at least one session of the Licensed Activity during each Annual Season of the Term as a fundraiser for the Royal Botanic Gardens Victoria (‘the Fundraiser Session’), with all profits from the Fundraiser Session to be given by the Licensee to the Board, in recognition of the Board’s not for profit status. The Licensee agrees to market the Fundraiser Session by mutual agreement with the Board, and acknowledges and
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agrees that the Board may also market and advertise the Fundraiser Session independently of the Licensee’s marketing and advertising.
11.2 The Licensee agrees to provide the Board with a minimum of two (2) months’ written notice of the date of the Fundraiser Session. The Board reserves the right to have input into the decision of which film will be screened at the Fundraiser Session, and the Licensee agrees to advise the Board of the proposed film for the Fundraiser Session prior to the printing of the Licensed Activity program and advertising material for each Annual Season.
12. KPIs
12.1 The Licensee must at all times comply with the KPIs contained in the Policy and Protocol Manual.
12.2 Prior to commencement of the first Annual Season, the Board and the Licensee will undertake good faith negotiations to establish further KPIs that will apply from the commencement of the first Annual Season and throughout the Term. The agreed further KPIs are contained in or will be annexed to the Policy and Protocol Manual.
12.3 If the parties are unable to agree on further KPIs by the start of the first Annual Season, then the Board may set such further KPIs as it considers reasonable.
12.4 The Licensee acknowledges and agrees that the KPIs may be adjusted from time to time, after the first Annual Season, to take account of changes in the Licensed Activity arising from implementation of the Board’s corporate plans for development of the Gardens. The KPIs will not be adjusted unless there is appropriate consultation between the Licensee and the Board.
12.5 The Licensee must comply with the KPIs and provide to the Board any reports required by the KPIs in the form and at the times set out in the KPIs.
13. Confidentiality
13.1 The terms and conditions of this Agreement and the Confidential Information are confidential and may not be disclosed by a party without the prior written consent of the other party except if such disclosure is:
(a) for the purposes of and required by this Agreement;
(b) in the case of Confidential Information, by the party who owns the Confidential Information;
(c) as required by any law, stock exchange, judicial or parliamentary body or Governmental Agency; or
(d) by way of disclosure to a party’s professional advisors, for the purpose of obtaining advice, who have agreed to keep the material and information confidential.
13.2 Each party must ensure that its employees, contractors and sub-contractors, servants and agents comply with this clause.
13.3 This clause will survive the termination of this Agreement for any reason.
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14. Insurance
14.1 Insurance
The Licensee must take out and maintain throughout the Term, insurance for:
(a) accident compensation complying with the provisions of the Accident Compensation Act 1985 (Vic) for the Licensee’s staff engaged in the provision of some or all of the Licensed Activity as outlined in clause 14.2; and
(b) public and product liability covering any liability for death or bodily injury arising out of or in connection with the provision of the Licensed Activity by the Licensee and the Licensee’s staff as outlined in clause 14.3.
14.2 Accident Compensation Indemnity
The Licensee shall be responsible for and shall indemnify and keep indemnified the Board from and against all claims, actions, suits, demands and injuries that may occur as a consequence of or arise out of this Agreement, or that are incidental to or arise out of the exercise or attempted exercise by the Licensee or its servants, agents or Invitees of any rights granted by the Board pursuant to this Agreement, including but without limiting the generality of the foregoing:
(a) loss, damage or injury from any cause whatsoever to property or persons caused or contributed to by the use of the Board Lands by the Licensee;
(b) loss, damage or injury from any cause whatsoever to property or persons within or outside the Board Lands occasioned or contributed to by any act, omission, neglect, breach or default of the Licensee; or
(c) any loss or damage (including loss of profits) to any person (including the Board) as a result of cancellations of performances, or of failure to perform the Licensed Activity or due directly or indirectly to cutting short the period during which the Licensed Activity is carried on or any failure on the part of the Licensee to meet its financial obligations to third parties or otherwise to comply with the terms of this Agreement except in relation to a negligent act or omission of the Board or its servants.
14.3 Public and Product Liability Policies
14.3.1 The Licensee agrees to maintain a Public and Product Liability Policy of insurance for the Term for an amount not less than that set out in Item E of Schedule 2 and such policy shall be in the joint names of the Licensee and the Board.
14.3.2 The Licensee must give notice in writing to the Board immediately if:
(a) a notice of cancellation or other notice is given under the Public and Product Liability Policy; and
(b) the Licensee does not renew, or pay a premium for, the Public and Product Liability Policy.
14.4 Proof of Currency
The Licensee agrees that a copy of the currently maintained Public and Product Liability Policy of insurance required to be taken out by it under sub-clause 14.1 be provided to the Board at least four (4) days prior to the Term Commencement Date, and that a copy of the current policy schedule be provided at least four (4) days prior to the commencement of each Bump-in period.
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15. Assignment, subcontracting and change of control
15.1 Approval Required for Assignment
The Licensee must not assign or sub-contract the benefit of the Agreement or any Licence issued to it under this Agreement or grant any sub-Licence to any third party without the prior written consent of the Board.
15.2 Change in Effective Control
The Licensee acknowledges and agrees that a change of Effective Control of the Licensee, whether such change is within or beyond the control of the Licensee, constitutes a deemed assignment of this Agreement. The Licensee will have no claim or right to any compensation for loss of business or income in the event of such termination by the Board.
15.3 Workforce Contractors
Nothing in clause 15.1 precludes the Licensee from using individual independent contractors engaged as a normal part of its workforce.
15.4 Effect
If the Licensee breaches this clause the Board may terminate the Agreement upon not less than ten (10) days’ written notice to the Licensee.
16. Cancellations
16.1 The Licensee shall provide information covering cancellation of performances of the Licensed Activity to the public via all ticketing agents and shall communicate such information to Invitees when they purchase their tickets.
16.2 The Licensee shall provide an information telephone line which provides the public with advice on the Licensed Activity including performance dates and times, ticket prices, entry gate/s and what to do in the case of cancellation due to bad weather. The number of the information telephone line shall be featured prominently on the Licensee’s website, the website of any ticketing agent and all of the Licensee’s advertising material for the Licensed Activity.
16.3 The Director reserves the right to cancel performances of the Licensed Activity if, in his or her view, high winds or other uncontrollable conditions will cause a hazard to the public. The Licensee shall have no claim for any loss, cost, expense or liability whatsoever which may arise as a result of the Director exercising his or her rights under this sub-clause.
16.4 The Licensee shall provide staff at entrance gates to the Licensed Area to assist the public if a performance of the Licensed Activity is cancelled.
16.5 In the event of a cancellation, the Licensee will provide "Performance Cancelled" signs that attach to information board/s or gate/s with relevant instructions about refunds, exchanges, and where to find staff of the Licensee on duty. The signs shall be placed at D-Gate and on the Box Office erected by the Licensee in the Licensed Area and as otherwise agreed between the parties.
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17. Dispute Resolution
17.1 Disputes
If a dispute arises between the parties to this Agreement out of or in connection with this Agreement (including any dispute as to breach or termination of the Agreement or any claim in tort, in equity or pursuant to any statute) a party shall not, except where the party seeks urgent interlocutory relief, commence any court or arbitration proceedings relating to the dispute unless it has complied with the following sub-clauses of this clause 17.
17.2 Notice of Disputes
Where a party considers that a Dispute has arisen it will give a written notice to the other party as soon as reasonably practicable setting out:
(a) the nature of the Dispute; and
(b) the party’s proposed resolution of the Dispute.
17.3 Initial Dispute Resolution Meeting
In the event of a Dispute arising to which sub-clause 17.1 applies, within five (5) Business Days of a notice being given under clause 17.2 the Director/Chief Executive Officer of each party shall meet and shall make all reasonable endeavours to negotiate a resolution of the Dispute acceptable to both parties.
17.4 Referral of Dispute
In the event that the parties are unable to resolve a Dispute themselves within fourteen (14) days of the parties having become aware of the existence of the Dispute, the parties agree that they will appoint a mediator to assist them in resolving the Dispute. The mediator is to be appointed by mutual agreement of the parties or, if the parties are unable to agree on a suitable person, the mediator shall be appointed by the President of the Law Institute of Victoria or a successor organisation. The parties must meet at least once in the presence of the mediator, such meeting to occur within twenty-eight (28) days of the parties having become aware of the existence of the Dispute. The costs of any mediator are to be borne equally by the parties.
18. Force Majeure
18.1 No failure or omission by the parties hereto in performance of any obligation under this Agreement shall be a breach of this Agreement, nor create any liability, if the same shall arise from any cause or causes beyond the control of the relevant party, including but not limited to the following, which for the purpose of this Agreement shall be regarded as being beyond the control of the party in question:
(a) acts of God;
(b) acts or omissions of any government, any rules, regulations or orders issued by any government authority or by any officers, department, agency or instrumentality thereof;
(c) the unavailability of utility services such as electricity, gas and water (otherwise than by reason of any act or omission of the party seeking to rely on the relevant service); and
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(d) fire, storm, lightning, flood, earthquake, acts of the public enemy, war, rebellion, insurrection, riot, invasion, strikes and lockouts.
18.2 A party seeking to rely upon this clause must promptly advise the other party by notice in writing of the details of the relevant event. Where the relevant event continues or subsists for a period of thirty (30) days or more, then the other party may, by notice in writing to the party seeking to rely upon this clause, terminate this Agreement.
19. Termination
19.1 The Board may terminate this Agreement immediately:
(a) if the Licensee becomes subject to any form of insolvency administration; or
(b) if the Licensee ceases carrying on a business; or
(c) if any court order is made against the Board which requires it to cease the Licensed Activity or which imposes conditions upon the conduct of the Licensed Activity which the Board considers unreasonable.
19.2 Either party may terminate this Agreement if the other party fails to comply with or observe any of the provisions of this Agreement and, where that failure is capable of remedy, the other party fails to remedy such failure within thirty (30) days of notice specifying the failure and requiring it to be remedied.
20. Consequences of Termination
Upon the expiration or sooner termination of this Agreement for any reason the Licensee shall:
(a) cease to undertake the Licensed Activity and any activities incidental thereto;
(b) cease to use or occupy the Licensed Area, except as necessary to give effect to any obligation arising under this Agreement; and
(c) remove the Licensee’s Equipment from the Board Lands.
21. Privacy
21.1 The Licensee shall be bound by the Information Privacy Principles with respect to any act done or practice engaged in by the Licensee for the purposes of this Agreement, in the same way and to the same extent as the Board would have been bound by the Information Privacy Principles in respect of that act or practice had it been directly done or engaged in by the Board.
21.2 The Licensee may seek to discharge its duty to comply with the Information Privacy Principles (as specified in sub-clause 21.1) by complying with a code of practice that is:
(a) approved under the Privacy and Data Protection Act 2014; and
(b) binding on the Licensee with respect to its activities under this Agreement.
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22. General
22.1 Amendment
This document may only be varied or replaced by a document duly executed by the parties.
22.2 Entire Understanding
This Agreement contains the entire understanding between the parties as to the subject matter contained in it. All previous agreements, representations, warranties, explanations and commitments, expressed or implied, affecting this subject matter are superseded by this document and have no effect.
22.3 Legal Costs and Expenses
Each party must pay its own legal costs and expenses in relation to the negotiation, preparation and execution of this document and other documents referred to in it, unless expressly stated otherwise.
22.4 Jurisdiction
This Agreement takes effect and is governed by and shall be construed in accordance with laws from time to time in force in the State of Victoria and by their execution of this Agreement, each of the parties irrevocably submits to the jurisdiction of the Courts of that State.
23. Ownership of Items
23.1 At the expiration of each Annual Season during the Term, the Licensee shall, unless the Board agrees to the contrary, remove all of the fixtures, fittings and other property owned by the Licensee during the Bump-out period.
23.2 If the Licensee fails to comply with clause 22.1 within seven (7) working days of the expiration or earlier determination of each Bump-out period during the Term, such items shall, at the option of the Board, become the property of the Board which may keep or dispose of the same in any manner that it thinks fit, and in such event no compensation shall be payable to the Licensee in respect thereof.
24. Waiver
A waiver by the Board of a breach by the Licensee of any obligation or provision in this Agreement or a Licence whether express or implied, shall not operate as a waiver of another or continuing breach of the same or of any other obligation or provision in this Agreement or a Licence, whether express or implied.
25. Relationship and Acknowledgment
25.1 Relationship
Nothing in this Agreement contained referred to or implied shall constitute a partnership between the parties hereto.
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25.2 Acknowledgment
The Licensee expressly acknowledges and agrees that the rights conferred on the Licensee by this Agreement are those of Licensee only, and that this Agreement shall not create or be construed as creating any form of tenancy or other right or interest in the Licensed Area or any other part of the Board Lands other than the rights specifically granted in this Agreement.
26. Notices
26.1 Any notice, consent or other communication that a party may be required or may wish to give to another party under this Agreement must be given in writing to:
Board: Executive Director Corporate Royal Botanic Gardens Victoria Private Bag 2000 South Yarra VIC 3141 Fax: (03) 9252 2413
Licensee: Fax:
26.2 Any notice, consent or instrument given or served in accordance with this Agreement is deemed to have been received:
(a) in the case of an instrument given or served by post to an address in the same country in which it is posted, three (3) Business Days following the day of posting by pre-paid post;
(b) in the case of an instrument given or served by hand, on the day of delivery if it is delivered on a Business Day, or on the next Business Day if it is delivered on a day which is not a Business Day;
(c) in the case of an instrument given or served by facsimile, on the day of confirmed successful transmission if it is transmitted on a Business Day, or on the next Business Day if it is transmitted on a day which is not a Business Day; or
(d) in the case of an instrument given or served by electronic means, on the day it is sent if it is sent on a Business Day, or on the next Business Day if it is sent on a day which is not a Business Day
but always subject to the rule that any notice, consent or instrument received after 5:00 pm (local time in the place of receipt) will be deemed received on the next Business Day.
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EXECUTED as an Agreement. Executed in Victoria by the ) ROYAL BOTANIC GARDENS ) BOARD by being signed, sealed and ) delivered by ) ……………………………………... ………………………………………… SIGNATURE OF BOARD MEMBER SIGNATURE OF BOARD MEMBER ……………………………………… …………………………………………. NAME OF BOARD MEMBER NAME OF BOARD MEMBER Executed by …….. in accordance with s 127(1) of the Corporations Act 2001:
) )
............................................................................ .................................................................................. Signature of Director Signature of Director/Company Secretary ............................................................................ .................................................................................. Print full name Print full name Pursuant to section 24(2)(b) of the Royal Botanic Gardens Act 1991 (Vic), the Governor in Council approves the granting of this Licence. ................................................................................. ................................................................................. Witness
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Schedule 1 Plan of Licensed Area
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Schedule 2 Details of Licence ITEM A Licensed Activity: Outdoor cinema exhibition and directly related ancillary activities. ITEM B Term: From the Commencement Date until seven days after the end of the
Bump-out period of the fifth Annual Season. ITEM C Hours of conduct Tuesday to Sunday inclusive from 5.30pm to midnight. of Licensed Activity
ITEM D
Bump-in period: Three weeks prior to the first day of each Annual Season.
Bump-out period: Two weeks from the last day of each Annual Season.
ITEM E Public Liability Insurance: $20,000,000 for any one occurrence. ITEM F Interest Rate on Late Payments:
The rate fixed from time to time in accordance with section 2 of the Penalty Interest Rates Act 1983 (Vic) and published in the Victorian Government Gazette.
ITEM G Condition Precedent Date to be inserted
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Schedule 3 Fees
ITEM A Licence Fee ITEM B Other Fees ITEM C Bond: for each Annual Season. ITEM D Capital Contribution:
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Schedule 4 Pro-Forma Financial Statement