Council archive · source document
MCU14/0082 - Deed of Licence
Deed of Licence
NORTHERN SEQ DISTRIBUTOR.RETAILER
AUTHORITY (TRADING AS UNITYWATER)
AND
LICENSEE
See the original
The page text is free to read. Viewing or downloading an original file needs an account.
Log in to see the originalFull text of the other 15 pages
Page 2
Date
Parties
1. NORTHERN SEQ DISTRIBUTOR.RETAILER AUTHORITY (TRADING AS
UNITYWATER) (ABN 89 791 717472) of 33 King Street, Caboolture in the State of
Queensland (UNITYWATER).
2. The party named in Item 1 of the Reference Schedule (LICENSEE).
Recitals
A UNITYWATER is the registered owner of the Land.
B LICENSEE wishes to access and enter the Licensed Area on a temporary basis for
the Permitted Purpose during the Term.
C UNITYWATER has agreed to grant a non-exclusive licence over the Licensed Area
to the Licensee upon the terms of this Deed.
It is agreed as follows.
1. Definitions and Interpretations
1.1 Definitions
In this Deed unless the context otherwise requires:
Deed means this Deed as it may later be amended or supplemented by the parties in
writing.
Authorised Officer means any person whose title or acting title includes the word
manager, or any secretary or director.
Building means the two brick structures within the Licensed Area and includes all the
furniture, fittings and equipment (including air-conditioning, hot water systems, lighting,
electrical items and wiring) owned by Unitywater located in, on or above the structures.
Business Day means a day which is not a Saturday, Sunday or public or bank holiday in
Brisbane.
Claims include any claim, action, demand, proceeding or judgment however arising,
whether at Law or in equity and including:
(a) by statute;
(b) in tort for negligence or otherwise, including negligent misrepresentation; or
(c) in restitution for unjust enrichment,
and includes any loss, damage. cost or expense.
Page 3
Commencement Date means the date specified in Item 58 of the Reference Schedule.
DR Act means the South-East Queensland Water (Distribution and Retail Restructuring)
Act 2009 (Qld) together with all associated legislation and any additional or substituted
legislation.
Essential Term means each of the following obligations:
(a) regarding the Permitted Use of the Licensed Area;
(b) requirement to obtain approvals and consents from any Government Authority;
(c) maintenance and cleanliness of the Licensed Area;
(d) assignment of the Licence;
(e) taking out and maintaining insurance;
(f) reporting and repairing any damage to the Licensed Area.
Expiry Date means the date specified in Item 5C of the Reference Schedule.
Government Authority means the Crown, a Minister, a government department, a
corporation or authority constituted for a public purpose, a court and an officer, employee
or agent of any of the foregoing acting as such.
Land means the land specified in Item 2A of the Reference Schedule.
Law means:
(a) those principles of law or equity established by decisions of Australian courts;
(b) statutes, regulations, by-laws, policies or ordinances of any Australian Government
Authority; and
(c) requirements of Australian Government Authorities made or arising under or
pursuant to any of the matters referred to in paragraphs (a) or (b) above.
Licence means the non-exclusive licence to enter upon the Licensed Area during the Term
in common with UNITYWATER in accordance with the terms and conditions in this Deed
and the schedules and annexures attached to it.
Licensed Area means the area described in Item 28 of the Reference Schedule.
Licence Fee means the amount stated in Item 3 of the Reference Schedule.
LICENSEE's Agents includes the employees, agents, licensees, invitees, contractors and
sub-contractors of the LICENSEE.
Permitted Purpose means the purpose described in Item 4 of the Reference Schedule.
Personnel means the personnel of a party, its contractors and its partners.
State means the State of Queensland.
Term means the term specified in Item 5A of the Reference Schedule unless terminated
earlier in accordance with clause 10.
Water Operations means water infrastructure (as defined under the DR Act) and all other
associated facilities, infrastructure and improvements operating in or around the Licensed
Page 4
Area, at or after the Commencement Date, and the construction, operation and
maintenance of such infrastructure, facilities and improvements.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation. The following rules of
interpretation apply unless the context requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have a
corresponding meaning.
(d) A reference to a person includes a body corporate, an unincorporated body or
other entity and conversely.
(e) A reference to a clause, annexure or schedule is to a clause of, or annexure or
schedule to this Deed.
(I) A reference to any party to this Deed or any other agreement or document includes
the party's successors and permitted assigns.
(g) A reference to any agreement or document is to that agreement or document as
amended, novated, supplemented, varied or replaced from time to time, except to
the extent prohibited by this Deed or that other agreement or document.
(h) A reference to any legislation or to any provision of any legislation includes any
modification or re-enactment of it, any legislative provision substituted for it and all
regulations and statutory instruments issued under it.
(i) No rule of construction applies to the disadvantage of one party on the basis that it
put forward this Deed or any part of it.
Ul If any of the provisions of this Deed are judged invalid, unlawful or unenforceable
for any reason, the invalidity, unenforceabilily or illegality will not affect the
operation and construction or interpretation of any other provision of this Deed,
with the intent that the invalid, unlawful or unenforceable provision will be treated
as severed from this Deed.
(k) A reference to dollars or $ is to Australian currency.
(I) A reference to a right or obligation of any 2 or more persons confers that right, or
imposes that obligation, as the case may be, jointly and severally.
(m) Each Schedule and each certificate and document delivered under this Deed forms
part of the Deed.
(n) A reference to conduct includes any omission and any statement or undertaking,
whether or not in writing.
(0) A reference to writing includes a facsimile transmission and any means of
reproducing words in a tangible and permanently visible form.
(p) Mentioning anything after include, includes or including does not limit what else
might be included.
Page 5
(q) All references to time are to Queensland/Brisbane time.
1.3 No partnership or agency
Except as expressly provided in this Deed nothing contained or implied in this Deed will:
(a) constitute or be deemed to constitute a party as a partner, joint venturer, agent or
legal representative of any other party for any purpose whatsoever; or
(b) create or be deemed to create any partnership, joint venture, agency or trust
between the parties or any of them.
1.4 Consents or approval
If the doing of any act, matter or thing under this Deed is dependent on the consent or
approval of a party or is within the discretion of a party, the consent or approval may be
given or the discretion may be exercised conditionally or unconditionally or withheld by the
party in its absolute discretion unless expressly provided otherwise.
1.5 Discontinuance of bodies or associations
(a) If an authority, institution, association, position or body referred to in this Deed is
reconstituted, renamed or replaced, or if its powers or functions are transferred to
another organisation or person, this Deed refers to that new organisation or
person.
(b) If an authority, institution, association, position or body referred to in this Deed
ceases to exist, this Deed refers to the organisation or person which serves the
same purpose or object as that authority, institution, association, position or body.
2. Grant of Licence
2.1 UNITYWATER grants to LICENSEE a non-exclusive Licence to enter upon the Licensed
Area during the Term in common with UNITYWATER.
2.2 LICENSEE must use the Licensed Area for the Permitted Purpose only.
2.3 LICENSEE must pay the Licence Fee to UNITYWATER on or before the Commencement
Date.
2.4 So long as LICENSEE performs its obligations under the Licence, LICENSEE will be
entitled during the Term to quietly enjoy the Licensed Area without any interruption by
UNITYWATER or any person lawfully claiming through UNITYWATER or in any other
manner. Notwithstanding this, if UNITYWATER (or any person authorised by
UNITYWATER) requires access to the Licensed Area in the case of an emergency, to
comply with occupational health and safety requirements, to access Water Operations or
pursuant to some other law or regulation ("Legal Access"), then LICENSEE acknowledges
and agrees that such Legal Access will not constitute a breach of LICENSEE's entitlement
to quiet enjoyment pursuant 10this clause.
Page 6
3. LICENSEE's Obligations and Prohibitions
3.1 LICENSEE's Obligations
LICENSEE must:
(a) use the licensed Area for the Permitted Purpose only in a safe and proper
manner;
(b) at its cost obtain all consents and approvals required from any Government
Authority to carry on the Permitted Purpose from the licensed Area, and comply
with all laws in respect of the Permitted Purpose, the licensed Area and
UNITYWATER'spropertyon the Land;
(c) pay all charges for all services relating to the LICENSEE's use of the licensed
Area (if applicable);
(d) maintain the licensed Area (while the LICENSEE has access) in good condition,
clean and free of rubbish, debris, contamination and overgrown or excess
vegetation;
Examples of things to be done: maintains lawns, keep drains clear, clear
gutters, prune trees and shrubs.
(e) report and repair any damage to the licensed Area caused by the LICENSEEor
the LICENSEE'sAgents;
(f) keep in good condition any of UNITYWATER'sproperty located in the licensed
Area;
(g) comply with all requirements of any Government Authority or UNITYWATER in
respect of the preventionor control of fires and fire safety at the licensed Area or
the Land;
(h) comply with the reasonable directions relating to the licensed Area from time to
time of UNITYWATER including, without limitation, those relating to safety and
security;
(i) if requested by UNITYWATER,ensure that no LICENSEE'sAgents smoke on the
licensed Area, and must erect signs at the licensed Area prohibiting smoking or
designatingsmoking areas;
UJ keep the licensed Area secured and maintain such existing security measures or
such other measuresas UNITYW ATER may reasonablyrequire and implementso
as to preventunauthorisedentry upon the Land; and
(k) provide its Personnel and the LICENSEE's Agents with access to the licensed
Area.
Page 7
3.2 RiskIWork Health and Safety
Where required by UNITYWATER, LICENSEE must ensure that its Personnel and the
LICENSEE's Agents:-
(a) undergo a general safety induction for UNITYWATER's premise prior to entry onto
the Licensed Area; and
(b) follows all directions and instructions given by UNITYWATER's Personnel whilslat
the Licensed Area.
3.3 LICENSEE's Prohibitions
The LICENSEE must not and must ensure that the LICENSEE's Agents do no!:
(a) store or use inflammable or dangerous substances on the Licensed Area except
where such substances are necessary in using the Licensed Area for the Permitted
Purpose;
(b) use the Licensed Area for any purpose other than the Permitted Purpose;
(c) cause any nuisance, disturbance, damage or danger to UNITYWATER or any user
of any neighbouring land;
(d) do anything which does or could annoy or offend anyone in or around the Licensed
Area, or which is or could be dangerous;
(e) unless it receives the written consent of UNITYWATER, put up any structure or
make any structural alterations or additions to the Licensed Area;
(f) block or obscure entrance and exits to the Land;
(g) lodge a caveat against the Licensed Area or the Land; and
(h) do anything which could affect UNITYWATER's interest in the Licensed Area and
the Land.
4. Risk
LICENSEE accesses and uses the Licensed Area at its own risk.
5. Indemnity
5.1 LICENSEE indemnifies and shall keep UNITYWATER indemnified, from and against all
Claims made against UNITYWATER in respect of any damage to, or loss of property,
personal injury or death caused by or in connection with or arising out of LICENSEE's use
of the Licensed Area, including all costs, damages and expenses which may be incurred by
UNITYWATER in defending any action, claim or demand in respect thereof.
5.2 LICENSEE also indemnifies UNITYWATER against any liability, loss, damage, costs or
expenses incurred or suffered by UNITYWATER which is caused solely and directly by a
breach of the Licence by LICENSEE.
Page 8
6. Insurance
6.1 LICENSEE must effect and maintain during the Terms and any extension or renewal
thereof:
(a) public liability insurance for an amount of not less than $20 million (or such greater
amount as UNITYWATER might notify to LICENSEE from time to time) for any
single occurrence, which policy notes the interest of UNITYWATER under the
Licence;
(b) insurance in respect of workers engaged by LICENSEE on the Licensed Area as
required by applicable legislation, including common law extension;
(c) such other insurances as UNITYWATER may reasonably require from time to lime
having regard to the Permilled Purpose and LICENSEE's use of the Licensed
Area.
6.2 LICENSEE must prior to entering upon the Licensed Area and whenever required by
UNITYWATER furnish to UNITYWATER evidence of LICENSEE's insurances.
6.3 LICENSEE must not do or permit to be done without the prior wrillen consent of
UNITYWATER.any1hing which may cause UNITYWATER to become liable for increased
Insurance premiums for the Land, or cause UNITYWATER's insurance for the Land to
become void or voidable.
7. No Warranty
7.1 UNITYWATER makes no warranty as to the suitability of the Licensed Area for the
Permilled Purpose. LICENSEE acknowledges that prior to entering into this Deed it has
satisfied itself as to the suitability and adequacy of the Licensed Area for LICENSEE's
Permitted Purpose.
7.2 The LICENSEE acknowledges that the state and condition of the Building are not in the
best condition although structurally sound. The LICENSEE wished to take a Licence of the
Licensed Area at its sole risk. The LICENSEE:
a) agrees that UNITYWATER has not made any representation on the state and condition
of the Building;
b) has satisfied itself that it wishes to take the Licence of the Licensed Area (which
includes the Building);
c) agrees that condition of the Building is satisfactory to the LICENSEE and the suitability
of the LICENSEE'S use of the building for the Permilled Purpose; and
d) agrees not to request or demand UNITYWATER to fix, make good, repair, replace,
modify or improve the building (or any part of it) during the term of the Licence.
If during the term of the Licence, it is found that the Building is not structurally sound, as
certified by a RPEQ or the condition of the Building becomes a risk to the safety and health
Page 9
of the LICENSEE, the LICENSEE agrees that it will not require UNITYWATER to re-build
or repair the building. If this happens, this Licence will be terminated.
8. Interruption
8.1 UNITYWATER reserves for itself the right to have access to all areas of the Land, including
the Licensed Area at all times for the purpose of carrying out its duties and functions under
the DR Act.
8.2 LICENSEE acknowledges and agrees that the rights and liberties of LICENSEE are
deemed not to be unreasonably restricted or diminished for clause 2 if the activities or
improvements or effects are necessary for the Water Operations (including preserving the
continued safety and integrity of the Water Operations).
8.3 In cases where UNITYWATER intends to carry out long term repairs or maintenance at the
Licensed Area, UNITYW ATER shall, except in the case of emergency, give to LICENSEE
reasonable notice of the time or times of the intended repairs or maintenance.
8.4 In cases where UNITYWATER intends to carry out/ong term repairs or maintenance at the
Licensed Area, UNITYWATER shall, except in the case of emergency, give to LICENSEE
reasonable notice of the time or times of the intended repairs or maintenance.
8.5 UNITYWATER shall not be liable to LICENSEE for any loss or damage suffered by
LICENSEE as a result of interruption to LICENSEE's use of the Licensed Area or
temporary closure of the Licensed Area, howsoever caused.
9. Assignment and Sub-Licensing
9.1 The Licence is personal to LICENSEE and LICENSEE cannot assign the Licence nor grant
any sub-licence.
9.2 For the avoidance of doubt, nothing in the Licence restricts the ability of UNITYWATER to
transfer its interests in the Licensed Area.
9.3 If UNITYWATER transfers its interests in the Licensed Area before the expiry of the Term,
UNITYWATER will use its reasonable endeavours to assign its rights and obligations under
the Licence to the transferee of its interests in the Licensed Area. If the transferee of
UNITYWATER's interests in the Licensed Area will not accept such assignment (despite
UNITYWATER's efforts to persuade it to do so), UNITYWATER may terminate the Licence
upon 30 days written notice to LICENSEE.
10. Termination
10.1 Termination for breach of an essential term
Either party may terminate the Licence immediately by notice to the other party if the other
party:
Page 10
(a) commits a breach of an Essential Term of the Licence; and
(b) fails to remedy that breach within 5 Business Days of notice requiring the other
party to remedy that breach or where the breach is not capable of remedy.
10.2 Termination for breach
Either party may terminate the Licence by giving Five (5) Business Days' notice to the
other party if the other party:
(a) commits a breach of an a term of the Licence; and
(b) fails to remedy that breach within Five (5) Business Days of notice requiring the
other party to remedy that breach or where the breach is not capable of remedy.
10.3 Termination for insolvency
Either party may terminate the Licence immediately by notice to the other party if the other
party:
(a) commits an act of insolvency;
(b) becomes subject to any form of external administration;
(c) enters into an arrangement with its creditors or otherwise takes advantage of any
laws in force in connection with insolvent debtors;
(d) is wound up, voluntarily or involuntarily; or
(e) is unable to pay its debts when due.
10.4 INTENTIONALLY DELETED
10.5 Termination for Destruction or Damage to Licensed Area and in Emergency
(a) If any part of the Licensed Area is destroyed or damaged to an extent which upon
a reasonably formed view materially inhibits the carrying on of the Permitted
Purpose on the Licensed Area either party may terminate the Licence immediately
by notice to the other party.
(b) If in emergencies, for reasons of safety or maintenance of the Land or for the
Water Operations, UNITYWATER should seek to permanently close the Licensed
Area, UNITYWATER may terminate the Licence immediately by notice to
LICENSEE.
10.6 After termination or expiration
(a) LICENSEE must, prior to the end of the Term or on termination, remove from the
Licensed Area all of LICENSEE's property and promptly make good the Licensed
Area to the condition they were in as at the Commencement Date and any damage
caused by the removal of LICENSEE's property.
(b) Following termination or expiration of the Licence, the parties agree that accrued
rights and remedies of a party will not be affected.
10.7 After termination pursuant to clause 10.5
(a) Upon receipt of a notice terminating the Licence pursuant to clause 10.5,
LICENSEE must:
Page 11
(i) stop its use of the Licensed Area by the expiry of the notice; and
(ii) take all available steps to minimise loss resulting from that termination.
(b) UNITYWATER is not liable to pay any amount to LICENSEE in respect of a
termination under clause 10.5.
(c) Notwithstanding any other provision of the Licence. LICENSEE is not entitled to
any compensation for loss of prospective profits or loss of any benefits that would
have been conferred on LICENSEE but for the termination of the Licence.
11. GST
11.1 Definitions and Interpretation
(a) Capitalised expressions which are not defined in this clause but which have a
defined meaning in the GST Law have the same meaning in this Deed.
(b) In this Deed:
(il GST m.eansthe goods and services tax as imposed by the GST Law;
(ii) GST Amount means any Payment (or the relevant part of that Payment)
multiplied by the appropriate rate of GST (currently 10%);
(iii) GST Law has the meaning given to that term in A New Tax System
(Goods and Services Tax) Act 1999 (eth), or, if that Act does not exist for
any reason, means any Act impo~ing or relating to the imposition or
administration of a goods and services tax in Australia and any regulation
made under that Act;
(iv) Payment means any amount payable under or in connection with this
Deed including any amount payable by way of indemnity, reimbursement
or otherwise and includes the provision of any non-monetary consideration.
11.2 Payment of GST
The parties agree that:
(a) all Payments have been calculated without regard to GST;
(b) if the whole or any part of any Payment is the consideration for a Taxable Supply
for which the payee is liable to GST, the payer must pay to the payee an additional
amount equal to the GST Amount, either concurrently with that Payment or as
otherwise agreed in writing;
(c) any reference to a cost or expense in this Deed excludes any amount in respect of
GST forming part of the relevant cost or expense when incurred by the relevant
party for which that party can claim an Input Tax Credit;
(d) the payee will provide to the payer a Tax Invoice at the time at which any payment
is made under this clause.
Page 12
12. Amendment
This Deed may only be amended by an agreement executed by all parties.
13. Costs and Stamp Duty
LICENSEE will pay UNITYWATER's reasonable legal costs in connection with the
preparation, negotiation and execution of this Deed. LICENSEE will pay any stamp duty
payable on this Deed or transactions contemplated by it.
14. General
14.1 Notices
All communications (including notices, requests, demands, consents and approvals) given
under or in connection with this Deed:
(a) must be in writing and signed by an Authorised Officer of the sender;
(b) must be addressed as follows and delivered to the intended recipient at the
address or fax number below or the address or fax number last notified by the
intended recipient to the sender after the date of this Deed:
(i) to LICENSEE: As listed in Item 6 of the Reference
Schedule.
(Ii) to UNITYWATER: As listed in Item 7 of the Reference
Schedule.
(c) will be taken to be duly given or made when delivered, received or left at the above
fax number or address. If delivery or receipt occurs on a day that is not a business
day in the place to which the Notice is sent or is later than 4pm (local time) at that
place, it will be taken to have been duly given or made at the commencement of
business on the next business day in that place.
14.2 Counterparts
This Deed may be executed in any number of counterparts. All counterparts together will
be taken to constitute one instrument.
14.3 Entire Agreement
This Deed contains the entire agreement between the parties with respect to its subject
matter. It sets out the only conduct relied on by the parties and supersedes all earlier
conduct and prior agreements and understandings between the parties in connection with
its subject matter.
14.4 Further Assurances
Each party must sign all documents and do all acts and things required by Law or
reasonably requested by the other party to give effect to this Deed.
Page 13
14.5 No Waiver
A failure to exercise or a delay in exercising any right, power or remedy under this Deed
does not operate as a waiver. A single or partial exercise or waiver of the exercise of any
right, power or remedy does not preclude any other or further exercise of that or any other
right, power or remedy. A waiver is not valid or binding on the party granting that waiver
unless made in writing.
14.6 No Merger
The rights and obligations of the parties will not merge on the completion of any transaction
contemplated by this Deed.
14.7 Governing Law
(a) This Deed is governed and construed in accordance with the Laws of Queensland.
(b) Each party irrevocably submits to the jurisdiction of the courts of the State of
Queensland and the courts competent to hear appeals from those courts with
respect to any proceedings which may be brought at any time relating in any way
to this Deed.
Page 14
EXECUTED as an Deed
SIGNED SEALED AND DELIVERED for and
on behalf of NORTHERN SEQ DISTRIBUTOR-
RETAILER AUTHORITY TRADING AS
UNITYWATER ABN 89 791 717 472
by its duly authorised officer:
Q.~g,B.~.W'
.... . ........... ~ ~ .
Name of Authorised Officer Signat~~fficer
in the presence of:
.........................................................
Name of witn/~ss
. '-1' 10. Cbrl.,L
........................................................
Dale
[IF LICENSEE IS A CORPORA TION]
SIGNED SEALED AND DELIVERED
••••••••••••••• no ••••••••• _•••••••••• " ••••••••••••• _•••
•.•.•.•.•.•. •.•.•...•.•. •.•.•. •.•.•. in accorda
with section 127 sf tAe Co/PBI alivlls A
~~~ Director
~~~o,' ~~if~(~ H~Jety
l3irector (BLOCK LETTERS)
(BLOCK LETTERS) ,::IX f3:.S/,£r./f
Page 15
Reference Schedule
Item Description
1. Name and address Noosa Men's Shed Inc - Incorporation Number IA42131.
of LICENSEE
2A. Land Lot 17 on SP 239726 County March Parish Weyba Title
Reference 50928875 and described as Wallum Lane, Noosa
Heads.
2B. Licensed Area That part of the Land hatched in black on the plan annexed to this
Deed as Annexure "A".
3. Licence Fee Nil
4. Permitted Purpose Conducting activities associated with operating as a member of
the Australian Men's Shed Association.
5A. Term The period of 10 years commencing from the Commencement
Date and expiring on the Expiry Date.
5B. Commencement The 1st day of September 2014.
Date
5C. Expiry Date The 30
th
day of August 2024.
6. Address for Notice Address: PO Box 964 Tewantin, OLD 4565
for LICENSEE
7. Address for Notice Address: PO Box 953, CABOOL TURE OLD 4510
for UNITYWATER
Fax: 075431 8288
Page 16
Annexure A Plan showing the Licensed Area [OCR of page images] Plan showing the Licensed Area Annexure A
Used in these records
MCU14/0082 - Deed of LicenceRelated documentApplication case desk ↗
About this file
- File size
- 4.5 MB (large file)
- File type
No other editions are linked here.
Original file
Log in to download the original file
The download may take up to a minute.