PUBLIC TRANSPORT CORPORATION
("PTC")
- and -
READING PROPERTIES PTY LTD ACN 071 195 429
("Developer")
- and -
MACKIE GROUP PTY LTD ACN 006 524 456
("Mackie")
AGREEMENT
1
TABLE OF CONTENTS
Clause Page
RECITALS................................................................................. 1
1. DEFINITIONS AND INTERPRETATION.................................................. 2
1.1 DEFINITIONS............................................................. 2
1.2 INTERPRETATION.......................................................... 8
1.3 CONTENTS AND HEADINGS................................................... 9
1.4 PRECEDENCE.............................................................. 9
2. GENERAL OBLIGATIONS............................................................. 9
2.1 DEVELOPER'S OBLIGATIONS................................................. 9
2.2 PTC'S OBLIGATIONS....................................................... 10
2.3 INDEPENDENCE OF DEVELOPER............................................... 11
2.4 ASSIGNMENT.............................................................. 11
2.5 EXERCISE OF PTC'S POWERS................................................ 11
3. NON DEVELOPMENT OBLIGATIONS..................................................... 12
3.1 CAR PARK AGREEMENT...................................................... 12
3.2 SECTION 173 AGREEMENT................................................... 12
3.3 LICENCE FOR ACCESS...................................................... 12
4. ENGAGEMENT OF CONSULTANTS....................................................... 12
4.1 DEVELOPER'S CONSULTANTS................................................. 12
4.2 PERIOD OF ENGAGEMENT.................................................... 12
4.3 NO DIMINISHING OF RESPONSIBILITY........................................ 12
5. PROJECT DOCUMENTATION........................................................... 12
5.1 DEVELOPMENT OF PROJECT DOCUMENTATION.................................... 12
5.2 SUBMISSION OF DOCUMENTATION TO PTC'S REPRESENTATIVE..................... 12
5.3 APPROVAL OF DOCUMENTATION BY PTC'S REPRESENTATIVE....................... 13
5.4 DOCUMENTATION TO BE INCORPORATED INTO THE CONTRACT...................... 13
5.5 COPIES OF DOCUMENTATION................................................. 13
6. PROGRAMME AND REVIEW OF CONSTRUCTION PROGRESS................................... 13
6.1 DEVELOPER TO PREPARE PROGRAMME.......................................... 13
6.2 FORM OF PROGRAMME....................................................... 13
6.3 APPROVAL OF PROGRAMME BY PTC'S REPRESENTATIVE........................... 14
6.4 MEETINGS AND REPORTS.................................................... 14
6.5 CONSTRUCTION PROGRAMME REVIEW PROCESS................................... 14
7. THE SITE........................................................................ 15
7.1 DEVELOPER'S OBLIGATIONS................................................. 15
7.2 DEVELOPER'S WARRANTIES AND ACKNOWLEDGMENTS.............................. 15
7.3 ACCESS TO THE SITE...................................................... 16
7.4 ACCESS TO MAKE GOOD..................................................... 16
7.5 ACCESS FOR PTC'S REPRESENTATIVE......................................... 17
7.6 ACCESS TO ADJOINING PTC LAND............................................ 17
7.7 SITE CONDITIONS......................................................... 17
7.8 SITE ESTABLISHMENT AND CLEANING......................................... 17
7.9 CHANGES TO SITE......................................................... 18
7.10 CONDITION OF THE LAND................................................... 18
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8. SUBCONTRACTS.................................................................... 19
8.1 SUBCONTRACTING.......................................................... 19
8.2 DEVELOPER'S RESPONSIBILITY.............................................. 19
9. ROLE OF PTC'S REPRESENTATIVE.................................................... 19
9.1 AGENT OF PTC............................................................ 19
9.2 PTC'S REPRESENTATIVE'S AUTHORITY........................................ 19
9.3 EMPLOYMENT OF OTHERS ON DEVELOPER'S DEFAULT............................. 20
10. EXECUTION OF THE WORKS.......................................................... 20
10.1 SCOPE OF THE WORKS...................................................... 20
10.2 PROVISION OF MATERIALS AND LABOUR....................................... 20
10.3 CONSTRUCTION METHODS AND QUALITY ASSURANCE.............................. 21
10.4 SUPERVISION............................................................. 21
10.5 REQUIREMENTS OF AUTHORITIES............................................. 21
10.6 SETTING OUT INFORMATION................................................. 21
10.7 SETTING OUT THE WORKS................................................... 22
10.8 MATERIALS AND WORKMANSHIP............................................... 22
10.9 OPENING UP THE WORKS.................................................... 23
10.10 QUALITY OF WORK AND MATERIALS........................................... 23
11. PTC SAFETY AWARENESS............................................................ 24
11.1 SAFETY AWARENESS TRAINING COURSE........................................ 24
11.2 DEVELOPER TO NOMINATE PERSONNEL......................................... 25
11.3 COMPLIANCE WITH SAFEWORKING INSTRUCTIONS................................ 25
11.4 SAFEWORKING INSTRUCTIONS PRESENTATIONS.................................. 25
12. GENERAL ENGINEERING AND OPERATIONAL CONDITIONS.................................. 25
12.1 COMPLIANCE WITH GENERAL ENGINEERING AND OPERATIONAL CONDITIONS.......... 25
12.2 NOTICE OF ABSOLUTE OCCUPATIONS.......................................... 25
12.3 PTC NOT LIABLE.......................................................... 26
12.4 DEVELOPER TO NOTIFY RELEVANT AUTHORITIES................................ 26
12.5 PTC FLAGMEN............................................................. 26
12.6 ABSOLUTE OCCUPATION DAMAGE.............................................. 26
12.7 PTC COSTS............................................................... 26
12.8 CHANGES TO PROGRAMME.................................................... 27
13. PTC INFRASTRUCTURE.............................................................. 27
13.1 PTC INFRASTRUCTURE WORKS MODIFICATIONS.................................. 27
13.2 PTC INFRASTRUCTURE WORKS................................................ 27
14. TIME............................................................................ 27
14.1 NOTIFICATION OF DELAYS.................................................. 27
14.2 NOTICE OF CLAIMED EXTENSION............................................. 28
14.3 PTC'S REPRESENTATIVE'S DETERMINATION.................................... 28
14.4 CONDITION PRECEDENT TO EXTENSION OF TIME................................ 28
14.5 PRACTICAL COMPLETION.................................................... 28
14.6 DEFECTS LIABILITY PERIOD................................................ 29
14.7 DEVELOPER TO RECTIFY.................................................... 29
14.8 TIME FOR MAKING GOOD.................................................... 30
14.9 SUBMISSION OF CERTIFICATES, SURVEY PLANS AND OPERATING DOCUMENTS........ 30
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15. INDEMNITIES AND INSURANCE....................................................... 30
15.1 DEVELOPER'S INDEMNITY................................................... 30
15.2 DEVELOPER'S INSURANCE................................................... 30
15.3 INSURANCE REQUIREMENTS.................................................. 31
15.4 INSURANCE CONDITIONS FOR JOINT POLICIES................................. 32
15.5 COPIES OF POLICIES...................................................... 32
15.6 PAYMENT OF PREMIUMS..................................................... 32
15.7 CERTIFICATES OF CURRENCY................................................ 32
16. BANK GUARANTEE.................................................................. 32
16.1 DEVELOPER TO PROVIDE BANK GUARANTEE..................................... 32
16.2 TERMINATION OF CONTRACT................................................. 32
16.3 RELEASE OF BANK GUARANTEE............................................... 33
16.4 RELEASE OF DEFECTS GUARANTEE............................................ 33
16.5 DRAWDOWN................................................................ 33
16.6 PTC'S OTHER RIGHTS NOT PREJUDICED....................................... 33
16.7 REPLACEMENT BANK GUARANTEE.............................................. 33
17. DEFAULT AND TERMINATION......................................................... 34
17.1 DEFAULT EVENTS.......................................................... 34
17.2 OCCURRENCE OF DEFAULT EVENT............................................. 34
17.3 CURE PERIOD............................................................. 34
17.4 EXTENSION TO CURE PERIOD................................................ 34
17.5 REMEDIES FOR DEFAULT EVENTS............................................. 35
17.6 RIGHTS AND LIABILITIES OF THE PARTIES FOLLOWING TERMINATION BY PTC...... 36
17.7 WAIVER.................................................................. 37
18. ASSIGNMENT OF INTEREST BY MACKIE................................................ 37
19. CONSENT BY PTC.................................................................. 37
20. DISPUTE RESOLUTION.............................................................. 37
21. NOTICES......................................................................... 38
21.1 NOTICE REQUIREMENTS..................................................... 38
21.2 NOTICES ON PTC'S REPRESENTATIVE......................................... 39
21.3 TIME OF EFFECT OF NOTICE................................................ 39
21.4 RECEIPT OF NOTICE....................................................... 39
21.5 NOTICES TO US PARENT.................................................... 39
21.6 FAILURE TO SERVE NOTICE................................................. 39
22. COSTS........................................................................... 39
22.1 LEGAL COSTS............................................................. 39
22.2 COSTS ON DEFAULT........................................................ 39
23. MISCELLANEOUS................................................................... 40
23.1 CERTIFICATE............................................................. 40
23.2 EXERCISE OF RIGHTS...................................................... 40
23.3 SINGLE OR PARTIAL EXERCISE.............................................. 40
23.4 FAILURE OR DELAY IN EXERCISE............................................ 40
23.5 NO LIABILITY............................................................ 40
23.6 WAIVER AND VARIATION.................................................... 40
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23.7 WAIVER DOES NOT EXTEND TO ANOTHER....................................... 40
23.8 ACCEPTANCE OF PAYMENT................................................... 40
23.9 SUPERVENING LEGISLATION................................................. 40
23.10 REMEDIES CUMULATIVE..................................................... 41
23.11 SET-OFF................................................................. 41
23.12 REDUCTION OF AMOUNT PAYABLE............................................. 41
23.13 INDEMNITIES............................................................. 41
23.14 ENFORCEMENT OF INDEMNITY................................................ 41
23.15 FURTHER ASSURANCES...................................................... 41
23.16 ANTECEDENT BREACHES AND OBLIGATIONS..................................... 41
23.17 ENTIRE AGREEMENT........................................................ 41
24. SEVERABILITY.................................................................... 42
25. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS.............................. 42
25.1 GOVERNING LAW........................................................... 42
25.2 JURISDICTION............................................................ 42
25.3 SERVICE OF PROCESS...................................................... 42
26. GOOD FAITH...................................................................... 42
SCHEDULE 1
STANDARDS FOR PTC WORKS.................................................................. 44
SCHEDULE 2
PUBLIC TRANSPORT CORPORATION GENERAL CRITERIA
for Developments at Railway Locations
Railway Operations and Engineering Design and Construction Aspects
ENG-AD-STD-0001. Dated 29.7.97........................................................... 45
SCHEDULE 3
PROCEDURES FOR CONTRACTORS WORKING ON PUBLIC TRANSPORT CORPORATION'S
Property and Facilities.................................................................. 46
SCHEDULE 4
SITE PLAN - BEVERIDGE WILLIAMS (JOB NO: MSM-576)......................................... 47
SCHEDULE 5
CAR PARK AGREEMENT....................................................................... 48
SCHEDULE 6
Reading Development Plans (McGauran Soon Plans).......................................... 49
SCHEDULE 7
PTC INFRASTRUCTURE WORKS................................................................. 50
SCHEDULE 8
SECTION 173 AGREEMENT.................................................................... 51
SCHEDULE 9
PTC SITE SPECIFIC REQUIREMENTS........................................................... 52
SCHEDULE 10
LICENCE FOR CARPARKING (CLAUSE 2.2B)..................................................... 53
SCHEDULE 11
LICENCE FOR ACCESS TO ADJACENT PTC LAND (CLAUSE 3.3)..................................... 54
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APPENDIX
ITEM 1 PUBLIC TRANSPORT CORPORATION
ITEM 2 DEVELOPER
READING PROPERTIES PTY LTD ACN 071 195 429
ITEM 3 PTC'S REPRESENTATIVE
MANAGER, COMMERCIAL DEVELOPMENT SERVICES, BAYSIDE TRAINS PUBLIC
TRANSPORT CORPORATION
ITEM 4 SITE
LAND ADJACENT TO FRANKSTON RAILWAY STATION
(REFERENCE PLAN ATTACHED)
ITEM 5 COMMENCEMENT DATE
THE DATE OF THIS AGREEMENT
ITEM 6 DATE FOR PRACTICAL COMPLETION
36 MONTHS FROM THE COMMENCEMENT DATE
ITEM 7 DEFECTS LIABILITY PERIOD
12 MONTHS FROM DATE OF PRACTICAL COMPLETION OF PTC INFRASTRUCTURE WORKS
ITEM 8 BANK GUARANTEE
AMOUNT $5 MILLION
ITEM 9 NOTICE REQUIREMENTS
PTC -
LEVEL 10
589 COLLINS STREET
MELBOURNE 3000
ATTN. MANAGER, COMMERCIAL DEVELOPMENT SERVICES BAYSIDE TRAINS
TELEPHONE: 9619 1990
FAX: 9619 1979
DEVELOPER -
READING PROPERTIES PTY LTD
6 BAY STREET
PORT MELBOURNE 3207
TELEPHONE: (03) 9646 1955
FAX: (03) 9646 1185
6
AND
READING ENTERTAINMENT INC -
ONE PENN SQUARE WEST
30 SOUTH FIFTEENTH STREET
PHILADELPHIA PA 19102-4813
ATTENTION: MR JAMES WUNDERLE
BUS.TEL: 215 569 5166
BUS. FAX: 215 569 2862
E-MAIL: 103424,3310
MACKIE -
MACKIE GROUP PTY LTD
11-13 CRANBOURNE ROAD
FRANKSTON 3199
TELEPHONE: (03) 9781 4066
FAX: (03) 9783 1157
ITEM 10 DEFECTS GUARANTEE
$50,000.00
THIS Agreement is made on 28th day of May 1998.
BETWEEN :
PUBLIC TRANSPORT CORPORATION of 589 Collins Street,
Melbourne, Victoria, 3000 (PTC)
and
READING PROPERTIES PTY LTD ACN 071 195 429 of Level 9,
66 Hunter Street, Sydney, New South Wales (DEVELOPER)
and
MACKIE GROUP PTY LTD ACN 006 524 456 of 11-13 Cranbourne Road, Frankston,
Victoria (MACKIE)
RECITALS
A. PTC is or is entitled to be registered as proprietor of the Land, as
successor to the State Transport Authority under the Transport Act 1983.
B. Under the Brief PTC requested the registration of interest of developers
for the development of the Site referred to in the PFFA at the Frankston
Railway Station.
C. PTC and Mackie entered into the PFFA.
D. PTC, the Developer and Mackie entered into the Heads of Agreement to
enable the Developer and Mackie to complete the milestones remaining
outstanding under the PFFA and the Developer to establish whether it is
feasible to proceed with the proposed development.
E. The Developer has completed the Preliminary Work under the PFFA including,
without limitation, its obligations under CLAUSE 10.1 of the PFFA and all
elements of the Fourth Milestone under CLAUSE 20 of the PFFA except
executing a development agreement and the Developer has satisfied itself
that it is feasible to proceed with the Development as contemplated by
this Agreement.
F. The parties agree to enter into this Agreement for the development of the
Works.
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G. Mackie has agreed to assign all of its right, title and interest in and to
the PFFA the Heads of Agreement and this Agreement to the Developer and PTC has
consented to such assignment.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following words have these meanings in this Agreement, unless
the contrary intention appears:
"ABSOLUTE OCCUPATION" means suspending the movement of trains over
the whole or part of any railway running line in the whole of the
area of the Frankston Railway Station Site for a defined period of
time.
"AGREEMENT" means this Agreement between PTC the Developer and
Mackie and includes the Appendix and each Schedule.
"AUTHORISED OFFICER" means in the case of any party, a person
appointed by that party to act on its behalf under this Agreement.
"AUTHORITY" includes all Commonwealth and State Governments and
instrumentalities and their departments, municipalities and any
other public authority or provider of services having jurisdiction
over the Works or the Land or any part of the Works or the Land.
"BANK GUARANTEE" has the meaning given to it in CLAUSE 16.1.
"BRIEF" means the Registration of Interest Brief dated October 1993
issued by PTC for the commercial development of the Site.
"CAR PARK AGREEMENT" means the agreement substantially in the form
attached to this Agreement as SCHEDULE 5.
"COMMENCEMENT DATE" means the date in ITEM 5.
"CONTAMINATION" means a solid, liquid, gas, odour, heat, sound,
vibration, radiation or substance of any kind which makes or may
make the Land unsafe, unfit or harmful for habitation, use or
occupation by any person or animal or is such that any part of the
Land does not satisfy the contamination criteria or standards
published or adopted by the Victorian Environment Protection
Authority from time to time and the word Contaminant has a
corresponding meaning.
"CONSTRUCTION COMMENCEMENT DATE" means the date the Developer is
first granted access to the Site for the purposes of commencing
construction under this Agreement.
"CONTRACT OF SALE" means the contract for the sale and purchase of
the Land to be entered into on the same date as this Agreement.
"CURE PERIOD" means in respect of a Default Event, such period of
time from and including the date of service of a Default Notice as,
in all
3
circumstances, is a reasonable period of time specified by the PTC
in the Default Event Notice in which to cure the Default Event to
which the Default Event Notice relates or any greater period as may
be allowed in CLAUSE 17.4 but in any case not less than thirty (30)
days.
"CURE PLAN" means a plan by the Developer to remedy a Default Event
which:
(a) is proposed during the Cure Period; and
(b) details:
(i) if and why an extension of the Cure Period is
required;
(ii) the time required to cure the relevant Default
Event: and
(iii) a work plan setting out each task to be undertaken
to cure the relevant Default Event and the time for
each task to be completed.
"DATE FOR PRACTICAL COMPLETION" means the date specified in ITEM 6.
"DATE OF PRACTICAL COMPLETION" means the date PTC's Representative
issues a Notice of Practical Completion.
"DEFAULT EVENT" means an event described in CLAUSE 17.1. "DEFAULT
EVENT NOTICE" means a notice given by the PTC under CLAUSE 17.2.
"DELAY EVENTS" means:
(a) loss or damage by fire, explosion, earthquake, lightning,
storm, tempest, civil commotion of any kind and not caused
by the Developer or the Developer's employees, servants,
contractors or subcontractors;
(b) industrial disputes, strikes or lockouts resulting from
industry-wide third party disputes and not caused directly
by the Developer;
(c) unusual delays in obtaining approvals by any relevant
Authority including any delay occasioned by any demanded
resubmission of requests where consent has been refused ;
(d) inclement weather;
(e) any matter beyond the reasonable control of the Developer
which results in a delay of the Works;
(f) any prohibition or embargo imposed under or by virtue of any
Law;
(g) any delay in PTC giving its consent approval to or
authorisation of any matter thing or action under this
4
Agreement including any delay occasioned by demanded
resubmission;
(h) any interruption of access to the Site under CLAUSE 7.3; and
(i) dispute resolution proceedings instigated by either party
under CLAUSE 20
"DEVELOPER" means the person named in ITEM 2 bound to execute the
Works under this Agreement and includes the Developer's employees,
agents, contractors, consultants and invitees where the context
permits.
"DEVELOPER'S CONSULTANT" means such consultant as is agreed between
Reading and PTC in writing.
"GENERAL CRITERIA FOR DEVELOPMENT AT RAILWAY LOCATIONS, RAILWAY
OPERATIONS AND ENGINEERING DESIGN ASPECTS AND CONSTRUCTION ASPECTS,
ENG-AD-STD-0001" dated 29/7/97, means the guidelines, a copy which
is attached to this Agreement as SCHEDULE 2, as amended from time to
time.
"HEADS OF AGREEMENT" means the Heads of Agreement between Mackie,
the Developer and PTC dated 28 May 1997.
"INFRASTRUCTURE DOCUMENTATION" means the drawings, programs, plans,
specifications and schedules of finishes which are required to
construct and complete the PTC Infrastructure Works as are approved
by PTC's Representative.
"INSOLVENCY EVENT" means the happening of any of these events and
such events not being rectified within 30 days of the Developer
becoming aware of the occurrence of the event:
(a) an application is made to a court for an order or an order
is made that a body corporate be wound up; or
(b) an application is made to a court for an order appointing a
liquidator or provisional liquidator in respect of a body
corporate, or one of them is appointed whether or not under
an order; or
(c) except to reconstruct or amalgamate while solvent on terms
approved by PTC, a body corporate enters into, or resolves
to enter into, a scheme of arrangement, deed of company
arrangement or composition with, or assignment for the
benefit of, all or any class of its creditors, or it
proposes a reorganisation, moratorium or other
administration involving any of them; or
(d) a body corporate resolves to wind itself up, or otherwise
dissolve itself, or gives notice of intention to do so,
5
except to reconstruct or amalgamate while solvent on terms
approved by PTC or is otherwise wound up or dissolved; or
(e) a body corporate is or states that it is insolvent; or
(f) as a result of the operation of section 459F(1) of the
Corporations Law, a body corporate is taken to have failed
to comply with a statutory demand; or
(g) a resolution is passed to appoint an Administrator or an
Administrator is appointed to a body corporate; or
(h) a Receiver and Manager is appointed to a body corporate; or
(i) a mortgagee takes possession of any one of the assets or
undertakings of a body corporate.
"INSURED" has the meaning given to it in CLAUSE 15.2.
"LAND" means Lot 2 on unregistered plan of subdivision no 414499C (a
copy of which is attached to the Contract of Sale) and being part of
the land described in certificates of title Volume 10248 Folio 656,
Volume 1272 Folio 356, Volume 1806 Folio 184, Volume 5350 Folio 831,
Volume 5365 Folio 824 and Volume 10104 Folio 349.
"LAW" means the law in force in Victoria including, without
limitation, all statutes, rules, regulations, ordinances, by-laws,
instruments, directives and proclamations made under the authority
either direct or indirect of any statute (including any Commonwealth
statute), rules of common law and equity and the legal requirements
of any Authority.
"NOTICE OF PRACTICAL COMPLETION" means the notice issued by PTC's
Representative under CLAUSE 14.5(B)(I).
"PFFA" means the Project Feasibility and Facilitation Agreement
dated 30 June 1995 between PTC and Mackie.
"PLANNING PERMIT" means permit number 96-432 issued on 29 April 1997
by the City of Frankston.
"POLLUTANT" means a discharge, emission or deposit which brings
about a detrimental change in the condition of the environment which
creates any one or more of the conditions of environment referred to
in sections 39(1), 41(1) or 45(1) of the Environmental Protection
Act and the word Pollution has a corresponding meaning.
"PRACTICAL COMPLETION" means, in respect of the PTC Infrastructure
Works, the state of being completed in accordance with the Standards
and fit for use and occupation by PTC and after:
(a) an Occupancy Permit or evidence of compliance with the
requirements of all relevant Authorities is submitted to
PTC's Representative;
6
(b) all plant and equipment forming part of the PTC
Infrastructure Works are tested and operational;
(c) all omissions and defects have been rectified other than
items:
(i) the immediate making good of which by the Developer
is not practicable;
(ii) which do not prevent the PTC Infrastructure Works
from being reasonably capable of being used for
their intended purpose;
(iii) the rectification of which will not prejudice the
convenient use of the PTC Infrastructure Works; and
(iv) which do not cause any legal impediment to PTC's use
or occupation of the PTC Infrastructure Works;
(d) those tests which are required by this Agreement to be
carried out and passed before the PTC Infrastructure Works
reach Practical Completion have been carried out and passed;
and
(e) the Developer has delivered to PTC a certificate from the
Developer's Consultant that all aspects of the PTC
Infrastructure Works are completed in accordance with sub-
clauses (a) to (d), the drawings, plans, specifications and
schedules of finishes contained in the Infrastructure
Documentation and the Standards, and that the PTC
Infrastructure Works are fit for use and occupation by the
PTC.
PRACTICAL COMPLETION means in respect of the Reading Development:
the state of being completed;
(a) to comply with the safety and operational requirements under
this Agreement;
(b) after an Occupancy Permit or evidence of compliance with the
requirements of all relevant Authorities is submitted to
PTC's Representative; and
(c) after a statement from the Developer's Consultant certifying
that the Reading Development has reached Practical
Completion in accordance with the plans and specifications
approved by PTC is submitted to PTC's Representative.
"PROGRAMME" means the design and construction programme prepared
under CLAUSES 6.1 AND 6.2 and approved by PTC's Representative .
7
"PROJECT CONTROL MEETINGS" has the meaning given to it in CLAUSE
6.4.
"PROJECT DOCUMENTATION" means the drawings, programs, plans,
specifications and schedules of finishes which are required to
construct and complete the Works as are approved by PTC's
Representative.
"PTC" means the person named in ITEM 1 and includes that person's
successors and assigns.
"PTC INFRASTRUCTURE WORKS" means the part of the Works to be
constructed in accordance with CLAUSE 13.2.
"PTC'S REPRESENTATIVE" means the person named in ITEM 3 or other
person from time to time appointed by PTC to be PTC's Representative
and notified to the Developer in writing or that person's delegate
which person is acting as an employee and as agent of PTC and whose
directions will bind PTC.
"PTC SITE SPECIFIC REQUIREMENTS" means the requirements set out in
SCHEDULE 9.
"READING DEVELOPMENT" means the proposed development of a multi-
screen cinema complex and entertainment centre depicted in the plans
specified in SCHEDULE 6 and which includes:
- 500 carparking spaces (the subject of the Car Park Agreement and
the Section 173 Agreement) in compliance with all relevant
Australian Standards
- aerobridge with escalators
- lifts and stairs
- "kiss and ride" facilities
- bus "drop-off" at Fletcher Road
- concourse improvements
- full fencing of carpark site boundaries
"SAFEWORKING INSTRUCTIONS" means Procedures for Contractors Working
on Public Transport Corporation Property and Facilities a copy of
which is attached to this Agreement as SCHEDULE 3, as amended from
time to time.
"SECTION 173 AGREEMENT" means the agreement substantially in the
form attached to this Agreement as SCHEDULE 8.
"SITE" means the land described in ITEM 4 and being the areas
delineated on the Site Plan and any other land or places made
available to the Developer by PTC for the purpose of this Agreement.
"SITE PLAN" means the plan attached to this Agreement as SCHEDULE 4.
8
"STANDARDS" means the standards attached to this Agreement as
SCHEDULES 1, 2 AND 3 and any subsequent modification directed or the
use of which has been permitted by PTC's Representative under this
Agreement.
"SUBCONTRACT" means any contract between the Developer and a
subcontractor to carry out any part of the Works.
"SUBCONTRACTOR" means Mackie or such other subcontractor as is
agreed between PTC and Reading.
"WORKS" means the PTC Infrastructure Works and the Reading
Development.
1.2 INTERPRETATION
In this Agreement, unless the contrary intention appears:
(a) a reference to this Agreement or another instrument includes
any variation or replacement of any of them; and
(b) a reference to a statute, ordinance, code or other Law
includes regulations and other instruments under it and
consolidations, amendments, re-enactments or replacements of
any of them; and
(c) the singular includes the plural and vice versa; and
(d) "person" includes a firm, a body corporate, an
unincorporated association or a responsible authority, as
constituted from time to time; and
(e) a reference to a person includes a reference to the person's
executors, administrators, successors, substitutes, assigns,
employees, servants, agents, contractors, subcontractors or
consultants; and
(f) an agreement, representation or warranty on the part of or
in favour of two or more persons binds or is for the benefit
of them jointly and severally; and
(g) words importing any gender include all other genders, as
applicable; and
(h) a reference to any thing (including, without limitation, any
amount) is a reference to the whole or any part of it and a
reference to a group of persons is a reference to any one or
more of them; and
9
(i) a reference to a CLAUSE, SCHEDULE OR APPENDIX is to a
CLAUSE, SCHEDULE OR APPENDIX in or to this Agreement and a
reference to an ITEM is to an item in the APPENDIX to this
Agreement; and
(j) a reference to a day must be interpreted as the period of
time commencing at midnight and ending 24 hours later; and
(k) a reference to the payment of money within a specified time
is a reference to the full clearance of any personal cheque
into the account of the payee within that time.
1.3 CONTENTS AND HEADINGS
The table of contents and headings are inserted for convenience and
do not affect the interpretation of this Agreement.
1.4 PRECEDENCE
If this Agreement contains any discrepancy or inconsistency, it must
be interpreted giving precedence to those documents listed below in
the following order:
(a) these terms and conditions;
(b) the Standards;
(c) the other Schedules to this Agreement;
(d) the Project Documentation; and
(e) documents referred to or incorporated in the Schedules to
this Agreement.
2. GENERAL OBLIGATIONS
2.1 DEVELOPER'S OBLIGATIONS
The Developer must;
(a) diligently proceed to execute and complete the Works on and
from the Construction Commencement Date in accordance with
this Agreement to the stage of Practical Completion on or
before the Date for Practical Completion;
(b) provide temporary car-parking facilities during construction
(the details of which will be included in the Programme) to
replace, as a minimum, the 350 existing car parks available
to PTC and PTC users such facilities to be secure, well lit
and with adequate at-grade access to the reasonable
satisfaction of the PTC's Representative;
(c) complete the Works:
(1) in accordance with the Planning Permit;
10
(2) in accordance with the Programme (3)in accordance
with the Project Documentation and Standards
referred to in this Agreement;
(4) in a professional and workmanlike manner; and
(5) in accordance with all applicable Laws and the
requirements of the relevant public Authorities
(including PTC but subject to CLAUSE 2.2(C)); and
(d) co-operate with PTC to facilitate appropriate signage for
PTC users provided that PTC must ensure that such signage
meets the requirements and standards for signage in the
Reading Development.
2.2 PTC'S OBLIGATIONS
PTC must:
(a) provide the Developer with access to the Site to carry out
the Developer's obligations under this Agreement;
(b) subject to the Developer performing the Developer's
obligations under this Agreement perform its obligations
under CLAUSES 3.1, 3.2 AND 3.3 and grant to the Developer a
licence of the area located at the south end of the Site
(and identified on the Site Plan in SCHEDULE 4) for use as a
car park, for a period of one year and at a licence fee of
$1.00 per annum in a form attached as SCHEDULE 10 not more
than 14 days after the Date of Practical Completion of the
whole of the Works. PTC will also grant to the Developer a
right of first refusal in the event of any proposed sale or
lease in respect of the licensed area other than for
operational purposes or as part of any corporatisation or
privatisation process.
(c) in relation to the Reading Development approve such plans as
are submitted by the Developer and in carrying out its
obligations and exercising its rights under this Agreement
make no objection or refuse any request or generally prevent
the Developer from proceeding with the Reading Development
unless to grant such approval or to withhold such objections
or refusal would breach the safety and operational
11
requirements of the Standards, any Law or this Agreement
with the intent that PTC will limit its supervision and
control of the Reading Development to ensure only that such
Works comply with such safety and operational requirements
under the Standards and also complies with all applicable
Laws and this Agreement.
2.3 INDEPENDENCE OF DEVELOPER
The Developer acknowledges that:
(a) it is an independent developer and not the agent of PTC in
executing the Works and must execute the Works in accordance
with its own methods, subject to compliance with this
Agreement;
(b) nothing contained in this Agreement or any Subcontract
creates any contractual relationship between any
subcontractor (other than Mackie) and PTC or PTC's
Representative;
(c) PTC and its agents, employees, consultants and
representatives, including PTC's Representative, are not
liable in contract or tort (including negligence) or to the
extent legally possible, under any statute or other
principle of law upon any claim in connection with any
information provided by PTC or for any errors or omissions
with respect to information given to the Developer;
(d) it enters into this Agreement based on its own
investigations and determinations; and
(e) in entering into this Agreement and in the execution of the
Works, the Developer and its employees, subcontractors and
suppliers have and must continue to use commercially
reasonable trade practices and exercise the standard of
skill, care and diligence appropriate to the nature of the
Works.
2.4 ASSIGNMENT
The Developer must not assign this Agreement or any payment or other
right or benefit or interest under this Agreement without the prior
written consent of PTC except that the Developer will be entitled to
assign this Agreement or any payment or other right or benefit under
this Agreement to its holding company or any subsidiary of its
holding company. The Developer must notify PTC of any assignment
under this clause.
2.5 EXERCISE OF PTC'S POWERS
The parties acknowledge that PTC will be entitled to exercise its
powers in relation to matters where it has jurisdiction as a
statutory authority only in accordance with the Transport Act 1983.
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3. NON DEVELOPMENT OBLIGATIONS
3.1 CAR PARK AGREEMENT
PTC and the Developer will enter into the Car Park Agreement within
14 days after the date when the whole of the Works reach the stage
of Practical Completion.
3.2 SECTION 173 AGREEMENT
PTC and the Developer will enter into the Section 173 Agreement with
the City of Frankston within 14 days after the date when the whole
of the Works reach the stage of Practical Completion.
3.3 LICENCE FOR ACCESS
PTC and the Developer will enter into the Licence for Access to
adjacent PTC Land substantially in the form attached as SCHEDULE 11
within 14 days after the date when the whole of the Works reach the
stage of Practical Completion.
4. ENGAGEMENT OF CONSULTANTS
4.1 DEVELOPER'S CONSULTANTS
The Developer must engage only such consultants to carry out such
functions as it may require in relation to the PTC Infrastructure
Works on terms to be agreed between the Developer and the
Developer's Consultants and which are approved by PTC.
4.2 PERIOD OF ENGAGEMENT
The Developer must engage the consultants referred to in CLAUSE 4.1
to the end of the Defects Liability Period.
4.3 NO DIMINISHING OF RESPONSIBILITY
The engagement of consultants does not create any assumption of
responsibility or risk on PTC or lessen any responsibility of the
Developer under this Agreement.
5. PROJECT DOCUMENTATION
5.1 DEVELOPMENT OF PROJECT DOCUMENTATION
The Developer must develop the Project Documentation to provide full
working construction drawings to fully incorporate the Standards and
embodying all other matters required by this Agreement in accordance
with all Laws and to the extent that the Standards do not deal with
or are unclear on any matter, to the satisfaction of PTC's
Representative.
5.2 SUBMISSION OF DOCUMENTATION TO PTC'S REPRESENTATIVE
The Developer must submit certified copies of all the Project
Documentation to PTC's Representative for review and approval as
soon as reasonably practicable after preparation and, in any event,
13
on or before the prescribed date for that task in the Programme.
PTC must use its reasonable endeavours to procure PTC's
Representative to notify the Developer of its approval or rejection
under this clause within the time period after the Project
Documentation is submitted as contemplated by CLAUSE 19.
5.3 APPROVAL OF DOCUMENTATION BY PTC'S REPRESENTATIVE
If PTC's Representative rejects the whole or any part of the Project
Documentation, the Developer must revise the Project Documentation
as soon as practicable and resubmit it to PTC's Representative for
approval under the preceding clause.
5.4 DOCUMENTATION TO BE INCORPORATED INTO THE CONTRACT
The Project Documentation will, on approval by PTC's Representative,
be incorporated into this Agreement and all documentation in
relation to the PTC Infrastructure Works will become the property of
PTC.
5.5 COPIES OF DOCUMENTATION
The Developer must provide PTC's Representative with three full
copies of the complete Infrastructure Documentation and one full
copy of the Reading Development documentation immediately after it
is approved under CLAUSE 5.3. The Developer must ensure that a full
copy of the Infrastructure Documentation is kept at the Site and
made available to PTC's Representative upon request.
6. PROGRAMME AND REVIEW OF CONSTRUCTION PROGRESS
6.1 DEVELOPER TO PREPARE PROGRAMME
The Developer must, not less than 20 business days prior to the
Construction Commencement Date, prepare and provide PTC's
Representative with the Programme for commencement, carrying out and
completion of the Works.
6.2 FORM OF PROGRAMME
The Developer must ensure the Programme:
(a) is in the form of a bar chart and provides a sequence for
the Works which conforms with the sequence requirements for
completion of the Works set out in the Standards;
(b) identifies milestones for various stages comprising the
Works;
(c) sets out a project calendar for the Works which must contain
reasonable allowances for public holidays, Christmas shut-
down, rostered days off, overtime and other contingencies;
and
(d) can be reviewed at each Project Control Meeting.
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6.3 APPROVAL OF PROGRAMME BY PTC'S REPRESENTATIVE
PTC must procure PTC's Representative to approve or reject the
Programme within 7 days after it is submitted by the Developer. The
Developer must immediately revise and resubmit the Programme to
PTC's Representative if it is rejected in any way.
6.4 MEETINGS AND REPORTS
The Developer must:
(a) ensure that meetings (PROJECT CONTROL MEETINGS) are held at
least fortnightly and at other times as may be reasonably
required by PTC's Representative;
(b) invite and allow PTC's Representative to participate in all
Project Control Meetings;
(c) give at least 5 business days' written notice to PTC's
Representative of the time, place and agenda of all Project
Control Meetings;
(d) ensure that its project and construction managers attend
Project Control Meetings and are available to discuss
matters with PTC's Representative at all reasonable times;
(e) prepare accurate minutes of all Project Control Meetings and
submit them to PTC's Representative within 4 business days
after the meeting; and
(f) at the reasonable request of PTC's Representative, provide
evidence of the implementation of any action arising out of
a Project Control Meeting.
6.5 CONSTRUCTION PROGRAMME REVIEW PROCESS
Before each Project Control Meeting, the Developer must provide to
PTC's Representative a status report showing:
(a) progress made in execution of the Works since the previous
Project Control Meeting;
(b) the current status of the Works in relation to the
Programme;
(c) whether progress is being maintained in accordance with the
Programme;
(d) a list of planned activities to be carried out during the
following month;
(e) a list of matters which require a decision to be made by
PTC;
(f) a list of activities that are behind their planned start or
completion dates with reasons for any discrepancy; and
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(g) at the request of PTC's Representative, a proposed
management solution to correct the activities behind
schedule.
7. THE SITE
7.1 DEVELOPER'S OBLIGATIONS
The Developer must, at its own cost and expense:
(a) ensure that the Works are constructed within the external
title boundaries of the Site, except only for parts of the
Works specifically required by this Agreement to be outside
those boundaries; and
(b) provide all allowances and take all necessary steps and
measures that may be required in the execution of the Works
for working in or close to or diverting any service line or
installations of any relevant Authority, including power
lines, high tension lines and related structures in, on,
above, below or adjacent to the Site.
7.2 DEVELOPER'S WARRANTIES AND ACKNOWLEDGMENTS
The Developer warrants at the date of this Agreement and
acknowledges it has and is deemed to have:
(a) examined and checked this Agreement, the Standards and all
documentation mentioned in either;
(b) examined and taken into consideration all information which
is relevant to the risks, contingencies and other
circumstances which would in any way affect its obligations
under this Agreement;
(c) examined the Site and its surroundings;
(d) informed itself of all relevant physical conditions above
and below the surface of the Site and the climatic
conditions at and near the Site;
(e) informed itself of the nature of the Works and materials and
constructional plant and equipment necessary for the
execution of the Works, the facilities at the Site, the
times permitted by the relevant authorities for the
construction of the Works and the means of access to and
egress from the Site;
(f) informed itself as to the availability of labour and the
accommodation required and all labour conditions and
conditions of employment relevant to the execution of the
Works;
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(g) satisfied itself as to the correctness and sufficiency of
the cost allowed by the Developer for completing the Works
and to cover the cost of performing all of its obligations
under and in connection with this Agreement in the manner
prescribed by this Agreement;
(h) made its own independent enquiries and assessments as to the
ability, suitability and financial standing of any
Subcontractor engaged by the Developer in the execution of
the Works; and
(i) made its own interpretation as to the difficulties of
executing the Works.
7.3 ACCESS TO THE SITE
Unless PTC's Representative directs otherwise, PTC authorises the
Developer to have reasonable access to the Site for the purposes of
carrying out its obligations under this Agreement from the
Construction Commencement Date until Practical Completion of the
whole of the Works or until PTC lawfully terminates this Agreement
(whichever is earlier). The parties acknowledge that the
Developer's access to the Site will be subject to compliance with
the General Criteria for Development at Railway Locations Railway
Operations and Engineering Design and Construction Aspects ENG-AD-
STD-0001 in SCHEDULE 2. With respect to the Reading Development PTC
will only be able to deny the Developer access due to operational
and safety issues under such criteria. If access is denied at any
time the Developer will be granted a reasonable extension of time
taking into account the circumstances and at least equal to the
period during which access has been denied.
If the Developer requires access prior to the Construction
Commencement Date PTC must use its reasonable endeavours to allow
such access subject to compliance with reasonable conditions
required by PTC.
7.4 ACCESS TO MAKE GOOD
Following Practical Completion of the PTC Infrastructure Works, PTC
must allow the Developer access to the Site for making good defects
as required under this Agreement.
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7.5 ACCESS FOR PTC'S REPRESENTATIVE
Subject to CLAUSE 7.3 the Developer must allow PTC's Representative
access at all reasonable times to the Site and the Works and to
places other than the Site where Works are being performed.
7.6 ACCESS TO ADJOINING PTC LAND
The Developer must at its own cost and expense:
(a) obtain any necessary or appropriate permission to work on,
to, in, over or under any adjoining or neighbouring PTC
land; and
(b) make all arrangements for any access to any adjoining or
neighbouring PTC land,
and the Developer indemnifies PTC against any cost damage loss or
liability incurred or suffered in connection with the Developer's
access to adjoining or neighbouring land provided that PTC will use
its best endeavours to ensure that all such permission and
arrangements are obtained if the adjoining or neighbouring land is
owned by PTC.
7.7 SITE CONDITIONS
The Developer assumes the risk of all increased costs, losses and
expenses caused or contributed to by the physical condition or
characteristics of the Site (including, without limitation, sub-
surface, latent conditions or hidden defects or contamination of any
kind) and its surroundings suffered or incurred by the Developer in
or about the execution of the Works. PTC will co-operate with the
Developer in providing all information possible in relation to Site
conditions provided that no legal consequences can arise out of the
provision of any such information.
7.8 SITE ESTABLISHMENT AND CLEANING
The Developer must, at its own cost and expense:
(a) establish and maintain Site hoardings and a Site Office
suitable for holding Project Control Meetings connected with
electricity, accommodation and storage area for plant and
equipment and materials in such areas of the Site in a
manner from time to time approved by PTC's Representative;
(b) regularly remove all rubbish and debris from the Site
created or caused by the execution of the Works and at other
times in accordance with procedures approved by the PTC's
Representative; and
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(c) prior to Practical Completion of the PTC Infrastructure
Works or the Reading Development (whichever is the latter),
remove from the Site any hoardings, the Site Office, all
plant and equipment and other material as may be required by
PTC's Representative to enable PTC to quietly and peaceably
enjoy and occupy the PTC Infrastructure Works.
7.9 CHANGES TO SITE
If the Site changes for the purposes of this Agreement the Developer
will submit an amended plan for the purposes of SCHEDULE 4.
7.10 CONDITION OF THE LAND
(a) The Developer releases the PTC and its officers or agents
and indemnifies them against any claims, costs, losses,
damages, expenses, judgements, suits, awards and liabilities
whatever arising out of or in respect of:-
(i) any Contamination or Pollution caused or contributed
by the Developer or its servants, agents, employees
or contractors or any work performed by or for the
Developer on the Land which results in the release
or disturbance of Contamination or Pollution; and
(ii) complying with any notice, order or requirement
issued after the Commencement Date by or of any
Authority requiring any Contaminant or Pollutant in,
on or under or which has emanated from the Land
after the Commencement Date to be cleaned up,
contained, removed, diluted or dealt with in any
manner whatsoever.
(b) The Developer may at its option take over and conduct, at
its cost, in the name of any party to whom indemnity has
been given the defence of any claim brought by any person
against the Developer, the PTC or any other person or their
servants, agents, employees or contractors and arising out
of or relating to the indemnity provided in SUB-CLAUSE
7.10(A) and the PTC will use all reasonable endeavours to
ensure that it and any other person affected by this clause
fully co-operates in that defence.
(c) The release and indemnity in SUB-CLAUSE 7.10(A) survives
termination of this Agreement.
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8. SUBCONTRACTS
8.1 SUBCONTRACTING
The Developer may subcontract any part of the Works, provided
however, that in the case of the PTC Infrastructure Works such
subcontracting will be subject to the PTC's approval.
8.2 DEVELOPER'S RESPONSIBILITY
The Developer:
(a) by subcontracting any part of the PTC Infrastructure Works
is not relieved from any of its liabilities or obligations
under this Agreement;
(b) assumes the risk for all delays, cost increases, losses and
expenses caused or contributed to by any act or omissions of
a Subcontractor; and
(c) remains responsible to perform its obligations under this
Agreement, even if a Subcontract is terminated, disclaimed
or repudiated for any reason,
provided that the Developer will not be liable for any such matters
which are the direct result of any breach of this Agreement by the
PTC, its servants, agents or the PTC's Representative.
9. ROLE OF PTC'S REPRESENTATIVE
9.1 AGENT OF PTC
PTC's Representative will act for and on behalf of PTC as its agent
for the purposes of this Agreement and the Developer must comply
promptly with all reasonable written instructions and directions of
PTC's Representative.
9.2 PTC'S REPRESENTATIVE'S AUTHORITY
PTC and the Developer agree that PTC's Representative may subject to
CLAUSE 2.2(C) issue reasonable instructions or directions to the
Developer or be the sole independent assessor, valuer or certifier,
acting reasonably, concerning any of the following matters:
(a) the Works;
(b) any ambiguity, error or other fault in documents;
(c) substitute materials or workmanship;
(d) testing of materials or Works;
(e) Practical Completion of the PTC Infrastructure Works; and
(f) making good of any defects in the Works.
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9.3 EMPLOYMENT OF OTHERS ON DEVELOPER'S DEFAULT
If the Developer does not comply with a reasonable instruction or
direction of PTC's Representative which has been confirmed to the
Developer in writing;
(a) PTC's Representative may issue a notice to the Developer
requiring compliance within a specified time which is
reasonable having regard to the circumstances;
(b) if the Developer does not comply with the notice within the
specified time, PTC may employ and pay others to execute the
work which may be necessary to give effect to the relevant
instruction or direction;
(c) all costs incurred by PTC in doing so may be recovered by
PTC as a debt due to PTC by the Developer or may be deducted
by PTC from any money payable to the Developer under this
Agreement or the Bank Guarantee; and
(d) the Developer remains responsible to PTC for any work
executed by others as if it had been executed by the
Developer under this Agreement.
10. EXECUTION OF THE WORKS
10.1 SCOPE OF THE WORKS
The scope of the Works includes:
(a) all necessary work required to alter and add to existing PTC
infrastructure (in accordance with the Standards) to enable
construction of the Reading Development;
(b) all items of work obviously to be inferred from this
Agreement for the proper execution and completion of the
Works,
whether or not such items have been shown or described in this
Agreement.
10.2 PROVISION OF MATERIALS AND LABOUR
The Developer must provide at its own cost and expense everything
necessary for the proper execution of the Works and for the proper
performance by the Developer of its obligations under this
Agreement.
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10.3 CONSTRUCTION METHODS AND QUALITY ASSURANCE
The Developer is and remains responsible for:
(a) all construction means, methods, techniques, sequences and
procedures employed and to be employed by the Developer and
its Subcontractors in and concerning the execution of the
Works and for co-ordinating the execution of all portions of
the Works; and
(b) ensuring that all quality assurance procedures required to
be undertaken by the Developer under this Agreement are
properly implemented and carried out by the Developer to the
satisfaction of PTC's Representative.
10.4 SUPERVISION
The Developer is responsible for the supervision of the Works so as
to ensure that the Works are executed in accordance with this
Agreement. For the purposes of supervision, the Developer must
ensure that a competent person to supervise the Works is always
present on the Site when works are being carried out who will
respond to reasonable requests and directions from PTC's
Representative.
10.5 REQUIREMENTS OF AUTHORITIES
The Developer must, at its own cost and expense:
(a) apply for and obtain all permits, approvals and consents
necessary for the Works;
(b) comply with the requirements of all Laws and the lawful
requirements of all relevant Authorities which arise by
reason of the execution of the Works, including, without
limitation, obtaining registration and effecting and
maintaining insurance for building practitioners as
prescribed by the Building Act 1993;
(c) pay all fees in connection with the execution of the Works
which have not been paid by PTC prior to entering into this
Agreement; and
(d) provide, on reasonable request from PTC's Representative, a
true copy of any document in its possession issued by or
evidencing the approval of Authorities in connection with
the Works.
10.6 SETTING OUT INFORMATION
The Developer is responsible for obtaining all such information to
enable the Developer:
(a) to accurately set out the Works in accordance with this
Agreement; and
22
(b) to establish levels for the Works by reference to some
established datum or benchmark on or adjacent to the Works.
10.7 SETTING OUT THE WORKS
The Developer must correctly set out and establish the levels for
the Works in accordance with the information referred to in CLAUSE
10.6 and:
(a) must, at its own cost and expense, rectify any error arising
from its own inaccurate setting out and establishment of
levels;
(b) is not relieved of any of its responsibility by any check or
examination by PTC's Representative;
(c) after setting out and establishing the levels for the Works,
give PTC's Representative a certificate from a licensed
surveyor certifying that the setting out and levels are in
accordance with this Agreement; and
(d) must, in accordance with CLAUSE 14.9 give PTC's
Representative:
(i) a certificate and survey plan signed by a licensed
surveyor stating that the whole of the Works are
within the title boundaries of the Site except only
for parts of the Works specifically required by this
Agreement to be outside those boundaries and
detailing the location of the Works on the Site; and
(ii) a certificate signed by a chartered engineer stating
that structural elements of the Works are within the
tolerances specified.
10.8 MATERIALS AND WORKMANSHIP
10.8.1 All materials used in the PTC Infrastructure Works and the
standard of workmanship must be in conformity with the
provisions of this Agreement provided that:
(a) in the absence of a provision in the Contract
specifying a material or standard of workmanship,
the Developer must ensure that the material or
standard of workmanship used or employed is both
suitable for its purpose and consistent with the
nature and character of that part of the PTC
Infrastructure Works for which it is used;
23
(b) any materials not otherwise specified (except in the
case of temporary works) must be new and of
appropriate quality;
(c) the Developer must provide PTC's Representative with
full details of suitable and appropriate substitutes
and seek the direction of PTC's Representative in
relation to any substitute material or standard of
workmanship; and
(d) the Developer must produce evidence to the
reasonable satisfaction of PTC's Representative that
materials used in connection with the PTC
Infrastructure Works comply with the provisions of
this Agreement.
10.8.2 The quality of work to be carried out by the Developer and
materials used in the Reading Development will be to a
commercially reasonable standard and will comply with the
guidelines and standards set out in SCHEDULES 2 AND 3
relating to operational and safety issues and access for PTC
customers.
10.9 OPENING UP THE WORKS
If PTC's Representative instructs the Developer to open up for
inspection any work covered up or to arrange for or carry out any
testing of any materials or goods (whether already incorporated in
the Works or not) or of any executed work, the cost of that opening
up or testing (including the cost of making good any damage) must be
paid to the Developer unless:
(a) the opening up or testing is consequent upon a failure of
the Developer to comply with any provision of this
Agreement;or
(b) the opening up or testing shows that work, materials or
goods are not in accordance with this Agreement; or
(c) the cost of opening up or testing has been included in the
Standards.
10.10 QUALITY OF WORK AND MATERIALS
If PTC's Representative considers, acting reasonably, that the
quality of any work or material in respect to the PTC Infrastructure
Works is not in accordance with the requirements of this Agreement:
24
(a) PTC's Representative may instruct the Developer to remove or
re-execute or replace that work or material or to make good
any defect; and
(b) the Developer must carry out any instruction without the
right to any extension of time or any compensation unless
the Developer establishes that the work originally carried
out has been executed in accordance with the requirements of
this Agreement, in which case the cost of re-executing or
replacing that work will be borne by PTC.
11. PTC SAFETY AWARENESS
11.1 SAFETY AWARENESS TRAINING COURSE
(a) Except as otherwise provided in this CLAUSE 11, the
Developer and any of its employees, agents, consultants or
Subcontractors involved in work on or beside railway
property (SITE PERSONNEL) must complete a Safety Awareness
Training Course (THE COURSE) presented by PTC at the
Developer's expense, before commencing any work within 6
metres of the centre line of any railway track or overhead
facility in accordance with the Safeworking Instructions as
amended from time to time.
(b) The Developer must erect a 1.8 metre high fence, not less
than 2.5 metres from the centre line of the nearest railway
track, to protect the Site. Site Personnel who are not
required to work on the railway track side of this fence,
(EXEMPT PERSONNEL), do not have to attend the Course.
However, Exempt Personnel will be required to attend a site
induction meeting, which will include extensive information
provided at the Course.
(c) All Site Personnel, (including Exempt Personnel), who:
(i) have a supervisory role; or
(ii) are in charge of or operate plant within 6 metres of
the centre line of the nearest railway track; or
(iii) are in charge of or operate plant that may interfere
with any overhead electric cabling,
will be required to attend the PTC's "Electrical and
Overhead Appreciation Course". This requirement applies to
and includes site foremen, project managers, piling rig
operators, crane operators, dogmen, excavator operators and
"cherry picker" operators.
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11.2 DEVELOPER TO NOMINATE PERSONNEL
The Developer must nominate personnel required to complete the
course referred to in CLAUSE 11.1 and PTC will arrange for enrolment
in a suitable course. All personnel required to complete the course
referred to in CLAUSE 11.1 must sign an acknowledgment that he or
she has been informed of the safety procedures in accordance with
this CLAUSE 11.
11.3 COMPLIANCE WITH SAFEWORKING INSTRUCTIONS
The Developer and any of its employees, agents, consultants or
Subcontractors involved in work on or beside trains or buses must,
before commencing any work on or beside trains or buses:
(a) read the Safeworking Instructions as amended from time to
time and any other documents provided to the Developer by
PTC; and
(b) attend one or more presentations on-site by PTC for that
purpose in relation to particular classes of trains or
buses.
11.4 SAFEWORKING INSTRUCTIONS PRESENTATIONS
The Developer must nominate personnel required to attend the
presentation referred to in CLAUSE 11.3 and PTC will arrange for the
presentation to take place. All personnel required to read the
materials and attend the presentation in accordance with CLAUSE 11.3
must sign an acknowledgment that he or she has been informed of the
safety procedures in accordance with this CLAUSE 11.
12. GENERAL ENGINEERING AND OPERATIONAL CONDITIONS
12.1 COMPLIANCE WITH GENERAL ENGINEERING AND OPERATIONAL CONDITIONS
The Developer must and must ensure that its servants agents and
Subcontractors comply with the General Criteria for Development at
Railway Locations, Railway Operations and Engineering Design and
Construction Aspects ENG-AD-STD-0001 as set out in SCHEDULE 2.
12.2 NOTICE OF ABSOLUTE OCCUPATIONS
The Developer must give PTC's Representative at least 20 Business
Days notice in writing when it requires each Absolute Occupation
specified in the Programme. The Developer must specify in the
notice the dates, times and location of Absolute Occupation
required. The granting of Absolute Occupation by PTC will be
dependent on train running requirements.
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12.3 PTC NOT LIABLE
PTC is not liable for any consequences arising from being unable to
grant Absolute Occupation on dates or at times requested unless an
Absolute Occupation has been previously requested by the Developer
and agreed by PTC.
12.4 DEVELOPER TO NOTIFY RELEVANT AUTHORITIES
With respect to each train track Absolute Occupation the Developer
must give all Authorities proper notice to facilitate compliance
with relevant Laws.
12.5 PTC FLAGMEN
With respect to railway lines, notwithstanding any arrangements to
commence an Absolute Occupation at a specified time, the Developer
must not commence to obstruct the rail track until PTC's
Representative has confirmed in writing that the Absolute Occupation
has commenced and is being protected by a PTC or approved flagman
and has authorised the track to be obstructed.
12.6 ABSOLUTE OCCUPATION DAMAGE
The Developer will be liable for and indemnifies PTC if the
Developer or its subcontractors in the execution of the Works or
Absolute Occupation damage property, cause any loss claim proceeding
or injury in respect of any injury or damage to any real or personal
property or person including but not limited to public utilities and
services and property on or adjacent to the Land (unless such injury
or damage has been due to the negligence or wilful default of PTC
its servants or agents) and must promptly repair and make good the
damage and pay any compensation which the law requires the Developer
or PTC to pay.
12.7 PTC COSTS
The Developer must pay or reimburse PTC on monthly invoice the cost
of:
(a) the Absolute Occupations specified in the Programme;
(b) any PTC supervision to ensure that construction of the PTC
Infrastructure Works is carried out in compliance with this
Agreement;
(c) any train stabling, bus substitution and
like operations costs; and
(d) delay costs, arising from disruption caused by the Developer
or its employees, agents, contractors or consultants to
train services;
at the rates set out in SCHEDULE 9.
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12.8 CHANGES TO PROGRAMME
If the nature or length of an Absolute Occupation mentioned in
CLAUSE 12.2 changes or a further Absolute Occupation is agreed
between the parties the Developer must pay PTC a sum equivalent to
the increase in cost of the change or further Absolute Occupation on
demand in addition to the amount paid under CLAUSE 12.7.
13. PTC INFRASTRUCTURE
13.1 PTC INFRASTRUCTURE WORKS MODIFICATIONS
The Developer is to carry out at its own cost and expense and to
PTC's reasonable satisfaction all necessary PTC Infrastructure Works
modifications which are required to build the Reading Development.
The Developer acknowledges that the onus of identifying all
necessary PTC Infrastructure Works modifications rests with the
Developer.
13.2 PTC INFRASTRUCTURE WORKS
(a) The Developer must construct PTC Infrastructure Works as
detailed in SCHEDULE 7 and any other infrastructure
necessarily required to enable the development to proceed
and which is required to be modified to enable the
construction of the Reading Development to be completed or
as otherwise agreed between the parties.
The PTC Infrastructure Works must be constructed in
accordance with the guidelines and standards set out in
SCHEDULES 1, 2 AND 3.
(b) PTC must use all reasonable endeavours to work and co-
operate with the Developer to minimise the cost of the PTC
Infrastructure Works.
14. TIME
14.1 NOTIFICATION OF DELAYS
If progress of the Works is delayed by any Delay Event in a manner
which might reasonably be expected to result in a delay in the Works
reaching Practical Completion, the Developer must, if it wishes to
claim an extension of time for Practical Completion of the Works, as
soon as practicable and, in any event, not later than 14 days after
the Delay Event occurs, give a notice in writing to PTC's
Representative stating the nature, the cause and, where possible,
the extent of the delay.
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14.2 NOTICE OF CLAIMED EXTENSION
As soon as practicable, but not later than 14 days after the notice
under CLAUSE 14.1 is issued, the Developer must give a further
notice in writing to PTC's Representative stating a fair and
reasonable time by which, in its opinion, the time for Practical
Completion of the Works should be extended together with a statement
of facts on which it bases its claim.
14.3 PTC'S REPRESENTATIVE'S DETERMINATION
Subject to the Developer having complied with the provisions of
CLAUSE 14.1 and 14.2, PTC's Representative must as soon as
practicable determine what, if any, extension of time for Practical
Completion of the Works will be granted to the Developer and must
notify in writing the Developer accordingly. The Developer
acknowledges that the Delay Events constitute the only grounds upon
which the Developer is entitled to claim an extension of time for
Practical Completion.
14.4 CONDITION PRECEDENT TO EXTENSION OF TIME
Notwithstanding the preceding provisions of this CLAUSE 14, the
Developer is not entitled to any extension of time unless it has
taken proper and reasonable steps both to preclude the occurrence of
the cause of delay and to avoid or minimise the consequences of the
delay.
14.5 PRACTICAL COMPLETION
(a) When the Developer is of the opinion that either the PTC
Infrastructure Works or the Reading Development have reached
Practical Completion, the Developer must give written notice
to PTC's Representative specifying which of the Works have
reached Practical Completion. The notice must be accompanied
by any necessary documentary evidence demonstrating that the
requirements for achieving Practical Completion have been
satisfied.
(b) Within 7 days of receipt of the Developer's notice in
accordance with CLAUSE 14.5(A), PTC's Representative must
undertake a joint inspection of the relevant Works with the
Developer and either:
(i) issue to PTC and the Developer a notice which shall
state the date on which the relevant Works reached
Practical Completion;
(ii) issue to the Developer written notice of matters and
things required to be done before the relevant Works
shall reach Practical Completion; or
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(iii) issue to the Developer written notice that the
relevant Works are too far from Practical Completion
and requiring the Developer to continue with the
execution of the relevant Works in accordance with
this Agreement.
Provided that in relation to the Reading Development the
PTC's Representative's requirements under this sub-clause to
inspect the Reading Development will be limited only to
safety and operational requirements as set out in CLAUSE
2.2(C).
(c) If PTC's Representative issues to the Developer a written
notice under either of CLAUSE 14.5(B)(II) or (III), the
Developer must upon compliance with that notice give to
PTC's Representative further written notice that the
Developer has so complied and that further notice is deemed
to be a notice given by the Developer under CLAUSE 14.5(A)
and CLAUSES 14.5(B) and (C) shall reapply until such time as
PTC's Representative shall issue a Notice of Practical
Completion.
(d) Upon the issue of a Notice of Practical Completion or upon
the PTC Infrastructure Works being deemed to have reached
Practical Completion PTC may take possession of the PTC
Infrastructure Works.
14.6 DEFECTS LIABILITY PERIOD
The Defects Liability Period commences on the date the PTC
Infrastructure Works reach or are deemed to reach Practical
Completion under this Agreement and will continue for the period
stated in ITEM 7.
14.7 DEVELOPER TO RECTIFY
If at any time during the Defects Liability Period, any fault,
omission, shrinkage or other failure to comply with this Agreement
is apparent:
(a) the Developer must make good those defects which are
notified to it by PTC's Representatives within the time
prescribed in the notice at no cost to PTC; and
(b) if the defect is not made good within the specified time,
PTC may have the defect made good itself and the cost of
doing so shall be a debt due from the Developer to PTC which
PTC may draw down on the Defects Guarantee referred to in
ITEM 10 or the Bank Guarantee referred to in ITEM 8 (if the
Bank Guarantee has not been returned to the Developer).
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14.8 TIME FOR MAKING GOOD
Subject to CLAUSES 7.4 AND 14.7, the Developer must complete the
making good of all defects within a reasonable time of the end of
the Defects Liability Period.
14.9 SUBMISSION OF CERTIFICATES, SURVEY PLANS AND OPERATING DOCUMENTS
The Developer will submit to PTC's Representative within 28 days
from the Date of Practical Completion the certificates and survey
plan in accordance with CLAUSES 10.7(C) and (D) and all operating
manuals, warranties, guarantees, as-built drawings and other
documents and information required under this Agreement which, in
the opinion of PTC's Representative, are necessary for the use,
operation and maintenance of the PTC Infrastructure Works.
15. INDEMNITIES AND INSURANCE
15.1 DEVELOPER'S INDEMNITY
The Developer indemnifies PTC against all costs, liability, loss or
damage incurred or suffered in connection with the Developer's
obligations under this Agreement which results in or may result in:
(a) any damage to any real or personal property; or
(b) the death of or injury to any person,
caused or contributed to by any act, omission, negligence or default
of the Developer its employees, agents, contractors, subcontractors
or invitees unless such damage death or injury has been due to the
act or default of PTC its servants or agents.
15.2 DEVELOPER'S INSURANCE
The Developer must ensure that the following insurances are effected
on and from the Construction Commencement Date and maintained until
the expiry of the Defects Liability Period in the joint names of PTC
the Developer and the Subcontractor (together THE INSURED) for their
respective rights, interests and liabilities:
(a) Contractor's all risk insurance on terms and conditions
(including, without limitation, any exclusions or excesses)
reasonably required by PTC for the whole of the Works
(including, without limitation, any associated temporary
works, material incorporated or to be incorporated in the
Works and the property of the Insured or for which they are
responsible and any insurance required by the Building Act
1993) concerning loss or destruction of or damage to the
property insured (whether caused by the Developer, PTC or
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any other person) for its full reinstatement and replacement
cost;
(b) public liability insurance for liability to all persons
(including PTC) for a sum of not less than $ 20,000,000 for
any one event concerning personal injury to or death arising
by accident of any person (not being a person who at the
time of the accident is defined as a worker of the Insured
under any law concerning workers' compensation insurance)
and concerning any injury, loss or damage to any property
(real or personal) caused (directly or indirectly) by the
execution of the Works (whether by the Developer, PTC, a
Subcontractor, PTC's Representative or any other person);
(c) insurance for an unlimited sum against any loss, cost,
damage, liability or other detriment (whether arising under
a law concerning workers' compensation or employer's
liability or at common law) suffered or incurred by any of
its employees in or about the execution of the Works; and
(d) products liability insurance and professional indemnity
insurance for liability to all persons (including PTC)
concerning loss, costs, damage, liability or other detriment
suffered or incurred (directly or indirectly) in connection
with the execution of the Works.
15.3 INSURANCE REQUIREMENTS
All insurances required under CLAUSE 15 must:
(a) be effected with an insurance office or company approved by
PTC; and
(b) provide for payment of such amounts, cover such risks and
contain such conditions, endorsements and exclusions as are
acceptable to or required by PTC, acting reasonably; and
(c) contain a requirement that no exclusions, endorsements or
alterations may be made in or to that insurance, unless
first approved in writing by PTC; and
(d) be endorsed (to the extent permitted by Law) with a waiver
by the insurer of its right to avoid the policy or any
liability under that policy by reason of any non-disclosure
or any inaccurate disclosure relating to that policy.
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15.4 INSURANCE CONDITIONS FOR JOINT POLICIES
The policies for the insurance required under this CLAUSE 15 which
are effected in joint names must provide that:
(a) all insuring agreements and endorsements (excluding limits
of liability) operate in the same manner as if there was a
separate policy of insurance covering each Insured;
(b) the insurer waives all rights and remedies to which it may
become entitled by subrogation against any one or more of
the Insured; and
(c) failure by an Insured to observe and fulfil the terms of the
policy will not prejudice the insurance for any other
Insured.
15.5 COPIES OF POLICIES
The Developer must on or before the Construction Commencement Date
deliver certified copies of all insurance policies required under
THIS CLAUSE 15 and all renewal certificates, cover notes,
certificates of insurance, premiums and endorsement slips to PTC's
Representative.
15.6 PAYMENT OF PREMIUMS
The Developer must punctually pay (or cause to be punctually paid)
all premiums and other sums payable concerning the insurance
required under this CLAUSE 15 on or before the due date for payment
and produce to PTC receipts or other proof of payment to PTC's
satisfaction of those sums upon request by PTC.
15.7 CERTIFICATES OF CURRENCY
The Developer must deliver to PTC's Representative certificates of
currency for the insurances required under this CLAUSE 15, promptly
after receipt of a request from PTC's representative.
16. BANK GUARANTEE
16.1 DEVELOPER TO PROVIDE BANK GUARANTEE
The Developer must deliver to the PTC, on or before the Construction
Commencement Date, as security for the Developer's obligations to
construct the Works in the manner prescribed by this Agreement, an
irrevocable bank guarantee (BANK GUARANTEE) for the amount specified
in ITEM 8 in a form approved by the PTC.
16.2 TERMINATION OF CONTRACT
If the Developer does not deliver the Bank Guarantee to PTC in
accordance with CLAUSE 16.1, PTC may immediately terminate this
Agreement without prejudice to any of its other remedies under this
Agreement.
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16.3 RELEASE OF BANK GUARANTEE
PTC must release the Bank Guarantee (to the extent it is not drawn
down) to the Developer or make it available for collection by the
Developer in exchange for an irrevocable bank guarantee in a sum
equal to the amount specified in ITEM 10 (DEFECTS GUARANTEE) in the
form and from a Bank agreed to by PTC immediately after the Date of
Practical Completion of the whole of the Works.
If the parties are in dispute as to whether the whole of the Works
have reached Practical Completion, they must negotiate in good faith
for the substitution of the Bank Guarantee with a bank guarantee for
the value of the Works in dispute.
16.4 RELEASE OF DEFECTS GUARANTEE
PTC must release the Defects Guarantee to the Developer or make it
available for collection by the Developer within five business days
after the expiry of the Defects Liability Period (as it may be
extended).
16.5 DRAWDOWN
PTC is authorised and may draw down the whole or any part of the
Bank Guarantee whenever;
(a) expressly provided by this Agreement;
(b) either of the events described in CLAUSE 17.5(B) occur ; or
(c) PTC is entitled to reimbursement of money paid by it to
others and for which the Developer is primarily liable under
this Agreement and in all such cases as if the Bank
Guarantee were a sum of money due to PTC by the Developer.
16.6 PTC'S OTHER RIGHTS NOT PREJUDICED
A drawdown by PTC under the Bank Guarantee will not prevent PTC from
seeking alternative or additional remedies or from claiming from the
Developer losses, expenses, costs or damages in excess of the amount
drawn down.
16.7 REPLACEMENT BANK GUARANTEE OR DEFECTS GUARANTEE
If PTC calls on the Bank Guarantee or Defects Guarantee, then, no
later than seven business days after PTC gives the Developer a
notice asking for it, the Developer must deliver to the PTC a
replacement or additional Bank Guarantee or Defects Guarantee so
that the amount available under the Bank Guarantee or Defects
Guarantee is equal or greater than specified in ITEMS 8 OR 10
(whichever is relevant).
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17. DEFAULT AND TERMINATION
17.1 DEFAULT EVENTS
A Default Event occurs if:
(a) there is a substantial or material breach of any of the
Developer's obligations under this Agreement;
(b) the Developer fails to remedy any breach of this Agreement
within 28 days after receiving written notice from PTC or
PTC's Representative specifying the breach;
(c) an Insolvency Event occurs in relation to the Developer; or
(d) the Developer wholly suspends the carrying out of the Works
before Practical Completion.
17.2 OCCURRENCE OF DEFAULT EVENT
If a Default Event occurs, PTC may give the Developer a notice in
writing specifying :
(a) that the Default Event has occurred;
(b) reasonable details of the event or circumstance constituting
the Default Event; and
(c) the Cure Period.
17.3 CURE PERIOD
Upon receipt of a Default Event Notice, the Developer will be
permitted to cure that Default Event within the Cure Period.
17.4 EXTENSION TO CURE PERIOD
(a) If the Developer requires an extension to the Cure Period
(other than for a failure to pay money) it must, as soon as
possible (but no later than the expiration of the current
Cure Period) provide to PTC:
(i) a Cure Plan or revised Cure Plan, as applicable; and
(ii) evidence that:
(A) the Developer has diligently pursued and
is continuing to diligently pursue a
feasible and practicable programme of
rectification; and
(B) the Default Event cannot, with reasonable
diligence, be cured within the current
Cure Period.
(b) PTC must not unreasonably refuse to grant an extension of
the Cure Period where the Developer has satisfied the
requirements of this CLAUSE 17.4.
35
(c) Irrespective of whether PTC grants any request by the
Developer for an extension of a Cure Period, the Developer
must diligently pursue implementation of each Cure Plan.
(d) The Developer is not entitled to apply for an extension to
the Cure Period for a failure to pay money.
17.5 REMEDIES FOR DEFAULT EVENTS
(a) If a Default Event occurs and the Default Event is not
capable of being cured, the Developer must:
(i) within the Cure Period, comply with any reasonable
requirements of PTC; and
(ii) reimburse PTC for any loss or damage suffered or
incurred arising out of the Default Event within ten
Business Days of service on the Developer of the
Default Event Notice specifying the Default Event
and reasonable details of the reasonable
requirements of PTC.
(b) If a Default Event occurs and the Default Event is:
(i) capable of being cured but is not cured in
accordance with the Cure Plan for that Default
Event, or, if there is no Cure Plan, to PTC's
reasonable satisfaction (which may include the
payment of compensation) within the Cure Period; or
(ii) not capable of being cured and the Developer fails
to comply with CLAUSE 17.5(A),
PTC may (without prejudice to any other rights under this
Agreement) take one or any number of the following actions:
A sue the Developer for compensation;
B have recourse to any security for performance of the
Developer's obligations under this Agreement held by
PTC;
C seek other available legal and equitable remedies
except termination, cancellation, rescission or
repudiation of this Agreement; or
D by notice in writing, terminate this Agreement (but
without prejudice to any other rights under this
Agreement).
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17.6 RIGHTS AND LIABILITIES OF THE PARTIES FOLLOWING TERMINATION BY PTC
(a) If PTC terminates this Agreement in accordance with CLAUSE
17.5 the PTC may:
(i) require the Developer to cease works immediately;
(ii) have recourse to any security for performance of the
Developer's obligations under this Agreement;
(iii) exercise all legal and equitable rights available to
PTC;
(iv) require the Developer to:
(A) novate or assign to PTC or its nominee
without payment any agreement or the
benefit of any agreement for the supply of
materials or goods or for the execution of
any Works; and
(B) deliver all documentation necessary to
enable PTC to bring the Works to Practical
Completion.
(b) The Developer, for the purposes of any transfer or
assignment under this CLAUSE 17.6, irrevocably appoints PTC
as its attorney with full power and authority to execute
that transfer or assignment on behalf of the Developer.
(c) If this Agreement is terminated in accordance with CLAUSE
17.5, the rights and liabilities of the parties are the same
as at common law if the Developer had wrongfully repudiated
this Agreement and PTC had elected to treat this Agreement
as at an end and recover damages.
(d) All costs, loss, damage, liability or other detriment
suffered or incurred by PTC in or in relation to causing the
Works to reach Practical Completion is a debt due and
payable to PTC which may be deducted from the proceeds of
any security for performance of the Developer's obligations
under this Agreement.
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17.7 WAIVER
If this Agreement between PTC and the Developer is terminated due to the
Default Event, the Developer waives any rights it may have to pursue a
claim of restitution of any kind, including without limitation, a claim
of unjust enrichment.
18. ASSIGNMENT OF INTEREST BY MACKIE
18.1 Mackie hereby assigns all of its right title and interest in and to the
PFFA the Heads of Agreement and this Agreement to the Developer.
18.2 The Developer hereby indemnifies Mackie against all claims and
liabilities which may be imposed on Mackie as Developer under the PFFA,
the Heads of Agreement or this Agreement.
18.3 PTC consents to the assignment of rights from Mackie to the Developer.
19. CONSENT BY PTC
19.1 In the event that the consent approval or satisfaction of PTC (whether
acting directly or through PTC's Representative) is required for any
reason whatsoever under any provision of this Agreement, such consent
approval or satisfaction will be not unreasonably withheld and will be
given taking into account the provisions of CLAUSE 2.2(C).
19.2 Where action is required of PTC (whether acting directly or through PTC's
Representative) such action will, unless some other time period is
specifically provided for elsewhere in this Agreement, be taken within 15
business days except in respect of resubmissions of requests where
consent has been refused in which case it will be taken within 7 business
days.
19.3 In all cases PTC will use all reasonable endeavours to act as quickly as
possible and the Developer will use all reasonable endeavours to make any
requests for approval of plans and specifications on a staged basis.
19.4 In the event that consent approval or notice of satisfaction is not given
or refused within the respective periods referred to in CLAUSE 19.2, it
will be deemed to have been given.
20. DISPUTE RESOLUTION
20.1 Except as otherwise provided in this Agreement should any dispute or
difference arise between the parties either during the term of this
Agreement or after the termination or breach of this Agreement as to the
construction of this Agreement or as to any other matter arising under
38
this Agreement the parties must prior to issuing legal proceedings send a
notice and a copy of this Agreement to the President of the Law Institute
of Victoria or his or her nominee.
20.2 The notice shall:
(a) specify the nature of the dispute or the difference;
(b) request that a mediator be appointed promptly; and
(c) state that if the dispute or difference is not resolved
within 28 days of the mediator's written confirmation of
appointment, the dispute or difference shall be referred to
a court of competent jurisdiction.
20.3 A mediator shall endeavour to resolve the dispute or difference within 28
days of his or her nomination.
20.4 If the mediator is able to assist the parties in reaching an agreement,
the agreement shall be embodied in writing, signed by the parties and
shall be binding on them.
20.5 If the mediator is unable to resolve the dispute or difference within the
prescribed period, or within any extended period agreed to in writing by
the parties, the dispute shall be referred to a court of competent
jurisdiction.
20.6 The costs of the mediator shall be shared by the parties to the dispute.
20.7 The parties may engage solicitors or consultants to assist with the
preparation of their presentations for the mediation conference and may
engage those persons to appear on their behalf at the mediation.
21. NOTICES
21.1 NOTICE REQUIREMENTS
A notice, approval, consent or other communication concerning this
Agreement:
(a) may be given by a party or its Authorised Officer; and
(b) must be in writing; and
(c) must be left at the address of the addressee or sent by prepaid
ordinary post (airmail if posted to or from a place outside
Australia) to the address of the addressee or sent by facsimile
to the facsimile number of the addressee which is set out in ITEM
9 or if the addressee notifies another address or facsimile
number then to that address or facsimile number.
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21.2 NOTICES ON PTC'S REPRESENTATIVE
The Developer must serve PTC's Representative with a copy of any notice
to PTC on the same day or as close as reasonably possible to the day on
which the notice is served on PTC.
21.3 TIME OF EFFECT OF NOTICE
A notice, approval, consent or other communication takes effect from the
time it is received, unless a later time is specified in it.
21.4 RECEIPT OF NOTICE
A letter or facsimile is taken to be received:
(a) in the case of a posted letter, on the third day after
posting; and
(b) in the case of a facsimile, on production of a transmission
report by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient.
21.5 NOTICES TO US PARENT
PTC agrees to use its best endeavours to deliver a copy of any notice it
issues under CLAUSE 17 to Reading Entertainment Inc at the address
specified in ITEM 9 or such other address as is notified to PTC in
writing. PTC will use its best endeavours to confirm by telephone service
of any such notice.
21.6 FAILURE TO SERVE NOTICE
Neither the failure by PTC to deliver a copy of a notice in accordance
with CLAUSE 21.5 nor failing to contact Reading Entertainment Inc by
telephone will constitute a breach of this Agreement or operate to delay
or prolong any time period specified in this Agreement.
22. COSTS
22.1 LEGAL COSTS
Each party must bear its own legal costs of and incidental to the
preparation negotiation and execution of this Agreement and the Developer
must pay any stamp duty payable on this Agreement.
22.2 COSTS ON DEFAULT
Either party must pay or reimburse the other on request all costs
incurred or payable by the other in connection with the contemplated or
actual enforcement or preservation of any rights under this Agreement
including, without limitation, legal costs and disbursements on a
solicitor and client basis.
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23. MISCELLANEOUS
23.1 CERTIFICATE
A certificate signed by PTC or PTC's Representative about a matter
concerning this Agreement is sufficient evidence of the matter stated in
the certificate, unless the matter is proved to be false.
23.2 EXERCISE OF RIGHTS
Either party may exercise a right, power or remedy at its discretion
and separately or concurrently with another right, power or remedy.
23.3 SINGLE OR PARTIAL EXERCISE
A single or partial exercise of a right, power or remedy by either party
does not prevent a further exercise of that or an exercise of any other
right, power or remedy.
23.4 FAILURE OR DELAY IN EXERCISE
Failure by either party to exercise or delay in exercising a right,
power or remedy does not prevent its exercise.
23.5 NO LIABILITY
PTC is not liable for any loss caused by the exercise, attempted
exercise, failure to exercise or delay in exercising a right, power
or remedy.
23.6 WAIVER AND VARIATION
A provision of or a right created under this Agreement may not be
waived or varied except in writing signed by the party to be bound.
23.7 WAIVER DOES NOT EXTEND TO ANOTHER
If any party waives a provision of or a right created under or
implied in this Agreement, that waiver does not extend to:
(a) a breach by any other party of the same or any other
provision; or
(b) the future exercise by such party of that right.
23.8 ACCEPTANCE OF PAYMENT
The acceptance of a payment under this Agreement will not be taken
to constitute a waiver of any provision of or a right created under
or implied in this Agreement, except the right to demand that
payment.
23.9 SUPERVENING LEGISLATION
Any present or future legislation which operates to:
(a) vary the obligations of any party under this Agreement; or
(b) adversely affect any party's rights, powers or remedies
(including, without limitation, by way of delay or postponement) is
excluded, except to the extent that its exclusion is prohibited or
rendered ineffective by law.
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23.10 REMEDIES CUMULATIVE
The rights, powers and remedies provided in this Agreement are cumulative
with and not exclusive of the rights, powers or remedies provided by law
independently of this Agreement.
23.11 SET-OFF
PTC may apply (without notice) any credit balance in any currency in
any account of the Developer with PTC towards satisfaction of any
amount then payable by the Developer to PTC under this Agreement.
23.12 REDUCTION OF AMOUNT PAYABLE
PTC may by notice to the Developer reduce the amount payable at any
time by PTC to the Developer by the amount payable at that time by
the Developer to PTC under this Agreement. The Developer is taken
to have paid PTC that part of the amount then payable by the
Developer equal to the amount of the reduction.
23.13 INDEMNITIES
Each indemnity in this Agreement is a continuing obligation,
separate and independent from the other obligations of either party
and survives expiry or termination of this Agreement.
23.14 ENFORCEMENT OF INDEMNITY
No party need incur expense or make payment before enforcing a right
of indemnity under this Agreement.
23.15 FURTHER ASSURANCES
If PTC requests, the Developer must execute and cause its successors
to execute documents and do everything else necessary or appropriate
to bind the Developer and its successors under this Agreement.
23.16 ANTECEDENT BREACHES AND OBLIGATIONS
The expiry or termination of this Agreement does not affect:
(a) any party's rights for a breach of this Agreement by another
party before the expiry or termination; or
(b) any party's obligation to make a payment under this
Agreement for periods before the expiry or termination.
23.17 ENTIRE AGREEMENT
The Developer acknowledges:
(a) no information, representation or warranty by or on behalf
of PTC was supplied or made concerning this transaction,
in relation to the Developer's taxation liability or
any other matter, with the intention or knowledge that it
would be relied upon by the Developer; and
(b) no information, representation or warranty has been relied
upon; and
42
(c) this Agreement and all documents mentioned or contemplated
by this Agreement constitute the entire agreement between
the parties concerning the Works and supersedes all previous
negotiations and agreements concerning this transaction.
24. SEVERABILITY
If the whole or any part of a provision of this Agreement is void,
unenforceable or illegal in a jurisdiction it is severed for that
jurisdiction. The remainder of this Agreement has full force and effect
and the validity or enforceability of that provision in any other
jurisdiction is not affected. This clause has no effect if the severance
alters the basic nature of this Agreement or is contrary to public
policy.
25. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
25.1 GOVERNING LAW
This Agreement is governed by the law of Victoria.
25.2 JURISDICTION
Each party irrevocably and unconditionally submits to the exclusive
jurisdiction of the courts of Victoria and courts of appeal from them.
Each party waives any right it has to object to an action being brought
in those courts including, without limitation, by claiming that the
action has been brought in an inconvenient forum or that those courts do
not have jurisdiction.
25.3 SERVICE OF PROCESS
Without preventing any other mode of service, any document in an
action (including, without limitation, any writ of summons or other
originating process or any third or other party notice) may be
served on any party by being delivered to or left for that party at
its address for service of notices under this Agreement.
26. GOOD FAITH
The parties will act in good faith to ensure that they effect the intent
of the parties evidenced by this deed.
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EXECUTION PAGE
EXECUTED as a deed (SEAL)
THE OFFICIAL SEAL of the PUBLIC TRANSPORT )
CORPORATION was hereunto affixed in )
the presence of: )
/s/ Geralding Sharman /s/ Tony Sabatino
..................................... ..................................
Authorised signatory Authorised signatory
.....................................
Secretary
THE COMMON SEAL of READING PROPERTIES )
PTY LTD ACN 071 195 429 is affixed in )
accordance with its Articles of Association )
in the presence of: )
/s/ B. John Rochester
...................................... (SEAL)
Director
/s/ Jonathan Altson
......................................
Secretary
THE COMMON SEAL of MACKIE GROUP PTY )
LTD ACN 006 524 456 is affixed in accordance )
with its Articles of Association in )
the presence of: )
/s/ Ralph Mackie
...................................... (SEAL)
Director
/s/ Graham Duckitt
......................................
Secretary