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TOURISM NOOSA FUNDING AGREEMENT (REFERRED FROM S&O 11 APRIL 2023) · Attachment 1 - Deed - Funding Agreement Final
Tourism Noosa Funding and Performance Deed
Parties Noosa Shire Council ABN 97 969 214 121
of 9 Pelican Street, Tewantin, Queensland
(Council)
Tourism Noosa Ltd ABN 45 097 924 199
of 2 Parkyn Court, Tewantin, Queensland
(TN)
Recitals A. Council intends to provide certain funding to TN.
B. This Deed sets out details of the intended funding and the
terms and conditions upon which the funding will be provided.
This deed witnesses that in consideration of, among other things, the mutual promises
contained in this Deed the parties agree as follows:
1. Definitions and interpretation clauses
1.1 Definitions
The following definitions apply in this Deed:
means the priorities, obligations and performance measures set
Agreed Priorities
out at item 2 of Schedule 1 of this Deed.
means any claim, demand, complaint, causes of action, cross-
claim (and counterclaim), action, suits or proceeding, whether
Claim
present or contingent, known or unknown and which could be
brought now or in the future including interest and costs.
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means any information, which is not in the public domain, which a
Confidential
Party makes available to the other Party (or that Party's officers,
Information
employees or agents).
The Contingency Fund is a cash account equivalent of
$250,000.00 to be maintained by TN during the term of this
Agreement and is to be administered in accordance with the
further terms of this agreement. The purpose of this fund is to
Contingency Fund
provide for unforeseen expenditure on TN activities that fall
outside of TN’s 4 Year Strategy.
Deed means this deed (the Tourism Noosa Funding Deed).
means the date on which the last of the parties provides its
Effective Date
executed counterpart Deed to the other party.
Funding means the funding specified at item 1 of Schedule 1.
Further Term means 1 July 2025 to 30 June 2027 inclusive.
Initial Term means 1 July 2023 to 30 June 2025 inclusive.
means all copyright, trade mark, design, patents or any other
Intellectual proprietary rights, or rights to registration of such rights existing in
Property Australia or elsewhere or as protected by legislation, whether
created before, on or after the Effective Date.
means:
(a) the Initial Term; and
Term
(b) if subsequently agreed between the Parties, the Further
Term.
1.2 Interpretation
In this Deed:
(a) headings are for convenience only and do not affect
interpretation;
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(b) a reference to any legislation, ordinance, code or other
law includes all legislation and other instruments under
it and any consolidations, amendments, modifications,
re-enactments or substitutions of it;
(c) words denoting the singular include the plural and vice
versa;
(d) words denoting individuals include corporations,
associations, trusts, authorities, instrumentalities,
partnerships and vice versa;
(e) words denoting any gender include every gender;
(f) where a word or phrase is defined, its other
grammatical forms have a corresponding meaning;
(g) a month means a calendar month;
(h) if the date for the performance of any act or thing falls
on a Saturday, Sunday or public holiday in Brisbane,
then the date for performance will be the next Business
Day following that date;
(i) a reference to $ or dollar is to Australian currency;
(j) reference to party, part, clause, annexure or schedule is
a reference to party, part, clause, annexure or schedule
to this Deed as modified or varied from time to time;
(k) references to any party to this Deed or any other
document, deed or agreement shall include its
executors, administrators, substitutes, nominees,
agents, successors and permitted assigns;
(l) the obligations of all parties to this deed shall be joint
and several in nature (as and between all parties to this
Deed);
(m) a reference to writing includes a facsimile or e-mail
transmission and any means of reproducing words in a
tangible and permanently visible form;
(n) if any term of this Deed is legally unenforceable or
made inapplicable, it will be severed or read down but
so as to maintain, as far as possible, all other terms of
this Deed. This shall apply unless doing so would
change the underlying principal commercial purpose of
this Deed; and
(o) no rule of construction will apply to a provision of this
Deed to the disadvantage of a party merely because
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that party put forward the provision or would otherwise
benefit from it.
1.3 This Deed is effective on the Effective Date.
2. Funding
2.1 Council will provide the Funding to TN in the amount and in instalments as specified in
Schedule 1 of this Deed.
2.2 In consideration of the provision of the Funding, TN will perform the obligations
specified in this Deed.
2.3 TN must use the Funding for the Agreed Priorities and must not use the Funding for any
other purpose, unless otherwise approved in writing by Council.
2.4 Subject to the terms of this Deed:
(a) the Funding is for the Initial Term; and
(b) the Funding must be spent by TN within the Initial Term
or such other period as approved in writing by Council.
2.5 Any portion of the Funding uncommitted by TN in accordance with clause 2.4(b) must
be repaid to Council within 60 days of the expiry of the Initial Term.
2.6 The Funding as specified in Schedule 1 of this Deed is the total amount of funding
which will be provided by Council to TN per annum during the Initial Term. Council will
not provide any additional amounts to TN for the Initial Term, subject to the following
exceptions:
(a) additional funding may be provided by Council if
Council, in its sole and absolute discretion, is satisfied
that there is an efficiency dividend as an initial Council
initiative whereby identified overhead cost transfers are
removed and that through internal efficiencies TN has
justified additional funding; or
(b) additional funding may be provided by Council if
Council, in its sole and absolute discretion, is satisfied
that there is a specific project or event for which TN
requires additional funding and which is consistent with
the Agreed Priorities and is satisfied that TN has
achieved operational savings equivalent to the
additional funding sought through demonstrated
efficiencies.
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3. Further Term
3.1 Subject to the parties being in compliance with their obligations under this Deed, the
parties will commence discussions from 1 July 2024 regarding the potential Further
Term, including further funding for the Further Term and the terms on which that funding
will be provided, and will conclude those discussions by 31 December 2024.
3.2 The parties may, but are not obliged to, agree to the Further Term.
4. TN's obligations
4.1 Governance
(a) By 30 September 2023, TN will develop a 4 year
strategic plan which incorporates the priorities,
obligations and performance measures set out at
Schedule 1 of this Deed.
(b) Within 10 business days of the end of each quarter, or
upon request for Council, TN will provide Council with
financial and other reports in relation to the expenditure
of the Funding and the financial and other benefits
attributable to the Funding.
(c) TN will review and make appropriate changes to its
strategy and expenditure upon reasonable request by
Council.
(d) TN will conduct itself in accordance with best practice
standards of internal governance.
(e) Council's appointed Observer will be invited to and
included in all TN Board meetings.
(f) TN will perform annual performance reviews of its key
staff and directors.
(g) TN will cooperate with Council and take appropriate
action to address any corporate governance concerns
raised by Council:
(i) Firstly, by liaison between TN and the Council appointed Observer; and
(ii) Secondly, if requested by Council, by liaison between TN and Council's
CEO and/or Mayor.
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4.2 Strategic and operational plans
(a) By 31 December 2023, TN will implement a 4 year
strategic plan which incorporates the priorities,
obligations and performance measures set out at
Schedule 1 of this Deed.
(b) TN will deliver the strategic plan referred to in clause
4.2(a) above in accordance with annual operational
plans. The specific format and content of the
operational plan is be agreed by Council and TN.
(c) TN will implement an annual operational plan (as
referred to in clause 4.2(b) above) on or before 31
December 2023, and will implement further annual
operational plans annually thereafter for the duration of
the Term.
(d) TN will consult with Council in developing the strategic
plan and operational plans referred to in clauses 4.2(a)
and 4.2(b) above and TN must obtain Council's timely
approval prior to implementing those plans, with such
approval not to be unreasonably withheld.
4.3 Reports
(a) TN must at all times maintain and must produce to
Council upon request and within 10 business days of
Council’s request, reports which specifically identify
expenditure of the Funding by TN.
(b) During the Term TN will report on expenditure of the
Funding by TN, with reference to the Agreed Priorities,
activities being undertaken and return on investment:
(i) quarterly to Council - within 10 business days of the end of each
quarter; and
(ii) otherwise on request by Council in accordance with clause 4.3 (a).
(c) TN must keep adequate accounts, documents and
records in sufficient detail to enable and verify its
compliance with this Deed.
4.4 Recognition of the Council
(a) TN will, in its corporate publications, marketing and
other initiatives acknowledge Council as the primary
sponsor of TN.
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(b) TN will comply with any Council policies and protocols
in relation to media, marketing, communications,
community engagement and events where Council is
directly involved.
(c) TN will invite the Mayor, Deputy Mayor and Councillors
to events. If the Mayor is unable to attend, the Deputy
Mayor will be the designated primary representative or
if the Mayor and Deputy Mayor are unable to attend the
Council appointed Observer will be the designated
primary representative, and the sponsorship of Council
and the presence of the Mayor, Deputy Mayor,
Councillors or the Council appointed Observer (as
applicable) will be acknowledged at all events.
(d) TN will provide the Mayor, Deputy Mayor or the Council
appointed Observer access to Regional Tourism
Organisation, State Tourism Organisation, and National
Tourism Organisation events as well as trade and
industry events, inclusive of Queensland Tourism
Industry Council at Council's cost.
4.5 Other obligations
4.6 TN will immediately notify Council upon becoming aware of a breach or suspected
breach by TN of any of its obligations under this Deed and provide to Council such
details of the breach or suspected breach as Council reasonably requests.
4.7 TN must not, by any act or omission, conduct itself in a manner which adversely affects
or which is reasonably likely to adversely affect Council or the reputation of Council.
4.8 TN may not, without prior written consent of Council, assign any of its interest in or
obligations under this Deed.
5. Indemnity
5.1 Council shall not be liable to TN or to any other person for any loss, damage, or injury
sustained by any person or to any property, howsoever caused, arising out of or in
connection with this Deed except to the extent of any such loss, damage or injury
caused by a negligent, wilful act or default by Council.
5.2 TN indemnifies Council in relation to any costs, charges, damages, expenses,
proceedings, claims, and demands of any nature whatsoever, including legal costs on
the indemnity basis, suffered or incurred by Council in connection with TN’s non
fulfilment of its obligations under this Deed.
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6. Intellectual Property
6.1 The Parties acknowledge that they each respectively have rights to certain Intellectual
Property and nothing permits the use, reproduction, publication, adaptation or
communication of Intellectual Property of the other Party unless expressly authorised by
that Party.
7. Dispute resolution
7.1 The Parties agree to comply with this clause 7 in relation to any matter in dispute in
relation to the non-fulfilment of a party’s obligations under this Deed (Dispute).
7.2 A Party raising a Dispute will give the other Party a notice of dispute setting out:
(a) The details of the Dispute; and
(b) The outcome sought by the Party in relation to the
Dispute.
7.3 Within 10 Business Days of service of a Notice of Dispute or such longer period after
service of a Notice of Dispute as the Parties may agree in writing, representatives of the
Parties will meet and undertake genuine and good faith negotiations with a view to
resolving the Dispute.
7.4 If the Dispute remains unresolved 10 Business Days after the meeting referred to in
clause 7.3 above, the Parties agree to genuinely participate in a mediation in an attempt
to resolve the Dispute.
7.5 The costs of mediation will be shared equally between the parties.
7.6 The Dispute Resolution Process:
(a) continues for any further period agreed between the
parties, including to allow the parties to engage in
further negotiations or engage in any other alternative
dispute resolution process; or
(b) ends, if the parties agree on terms for a resolution of
the Dispute;
(c) ends on the date which is 10 Business Days after the
mediation under clause 7.4 above.
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8. Termination
8.1 To the exclusion of clause 8.2, either party may terminate this Deed within 14 days of
the date the Dispute Resolution Process ends in accordance with clause 7.6 (c).
8.2 Either party may terminate this agreement immediately if the other Party is adjudicated
as insolvent, is placed into liquidation, enters into a scheme of arrangement for the
benefit of its creditors, has a receiver appointed or fails to continue, its business or
charitable activities (as the case may be).
8.3 If this Deed is terminated by Council prior to the expiration of the Term:
(a) TN must pay to Council, any portion of the Funding
uncommitted by TN within 60 days of such termination;
(b) Provide to Council a non exclusive, royalty free licence
to use TN’s Intellectual Property.
9. Confidentiality
9.1 A Party must not, without the prior written consent of the other, disclose Confidential
Information to any other person or entity, except where the disclosure is required for the
proper performance of obligations under this Deed or otherwise as required or permitted
by law.
9.2 On expiration of the Term or earlier termination of this Deed, a party must, at the
request of the other party, immediately return the Confidential Information to the first
party or destroy the Confidential Information (as the first party directs) and certify to the
first party in writing that it has complied with this clause.
10. General Provisions
10.1 This Deed does not create any partnership, contract of employment or employment
relationship, joint venture or relationship of principal and agent between the Parties, and
neither Party has the authority to bind the other Party, pledge the credit of any Party or
bind the Party to any obligation whatsoever, without specific consent in writing of the
other Party.
10.2 A party giving notice under this Deed must do so in writing to the person and at the
address or email address specified in item 3 of Schedule 1 of this Deed.
10.3 Variation
(a) Any variation, modification or waiver of any provision in
this document, or consent to any departure by a Party
from a provision:
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(i) will be of no force nor effect unless it is consented to in writing by the
Parties to this document or, in the case of a waiver, by the Party giving
it; and
(ii) will be effective only to the extent to, or for, which it is made or given.
(b) Any oral variation, modification or waiver of any
provision in this document, or consent to any departure
by a Party from a provision, shall be of no force or effect
until consented to in writing by the Parties to this
document.
10.4 Warranties
(a) Each Party to this document warrants to the other Party
that:
(i) there is no impediment to them entering into this document;
(ii) they have relied upon their own enquiries and have not entered into this
document in reliance on, or as a result of, any representation, promise,
statement, conduct or inducement by, or on behalf of, any other Party
except as set out in this document;
(iii) they have taken, or have had the opportunity to take, independent legal
advice as to the nature, effect and extent of this document.
(b) Each person signing this document as an authorised
officer or agent or otherwise on behalf of any Party, by
doing so, warrants to the other Party that, as at the date
of signing, the person has full authority to execute this
document on behalf of that Party.
(c) Each Party is aware that the other Party has relied upon
the above warranties in entering into this document.
10.5 Severance
(a) The covenants, undertakings and conditions contained
in this document are severable and shall be so
construed as not to infringe any laws that may affect
this document.
(b) If such covenant, undertaking or condition on its true
interpretation is found to infringe any such laws, the
covenant, undertaking or condition shall be read down
to the extent as may be necessary to ensure that it
does not infringe any such law.
(c) In the event that the infringing covenant, undertaking or
condition cannot be read down, it shall be deemed void
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and severable and shall be deemed deleted from this
document to the same extent and effect as if it was
never incorporated into this document.
(d) If any covenant, undertaking or condition is, or
becomes, invalid for any reason, such invalidity shall
not affect the validity or operation of any other
covenant, undertaking or condition of this document
(except to the extent necessary to give effect to such
invalidity).
10.6 Acts to perform agreement
Each Party will promptly perform all acts, execute and deliver all documents, and do
everything reasonably required by the other Party to carry out and give effect to the intent
and purpose of this document.
10.7 Time
Time is of the essence in respect of the obligations contained in this Deed.
10.8 Counterparts
(a) This document may be signed in any number of
counterparts with the same effect as if the signatures to
each counterpart were on the same instrument.
(b) The Parties may exchange counterparts by facsimile or
by attaching a scanned copy of the counterpart to an e-
mail transmission as an Adobe PDF® document.
10.9 Governing Law
(a) The rights, liabilities and obligations of the parties under
this document, and the interpretation and enforcement
of this document, are governed by the laws of the State
of Queensland.
(b) The Parties agree to submit to the non-exclusive
jurisdiction of the Courts of Queensland to deal with all
matters arising out of or related to this document and its
enforcement.
10.10 Entire Agreement
(a) This Deed embodies the entire understanding and
agreement between the Parties in relation to the
Funding as at the Effective Date.
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(b) All previous negotiations, understandings,
representations, warranties, memoranda or
commitments in relation to, or in any way affecting, the
subject matter of this document are merged in and
superseded by this document and are of no force or
effect.
11. Contingency Fund
11.1 Maintenance of Contingency Fund
(a) TN will maintain at all times a Contingency Fund at a
balance that is no less than $250,000.00 throughout the
term of this Agreement, subject to clause 11.2 (b).
(b) Amounts may be withdrawn from the Contingency Fund
on the following conditions:
(i) TN must request Council’s approval for any withdrawal of any amount from
the Contingency Fund, and provide reasons to Council for the request, as well
as a proposal for the reimbursement of any such funds back into the
Contingency Fund within a proposed period;
(ii) Council must provide TN with its approval or otherwise for any such request
within 30 days of receiving TN’s request for a withdrawal.
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Schedule 1
1. Funding
Funding
Amount $2,520,000.00 (excluding GST)
Stages and/or The Amount will be paid in instalments, every 6 months during the
instalments Term as follows:
• $1,260,000 excluding GST on or before 31 July 2023 and
2024; and
• $1,260,000 excluding GST on or before 31 January 2024 and
2025.
2. TN's priorities, obligations and performance measures
Priority Obligations and performance measures
(a) TN acknowledges that Council is presently developing a
DMP which will inform TN's strategy in relation to the
management of the visitor economy and tourism within the
Noosa region.
1. Destination
(b) TN will implement aspects of the DMP, with those aspects
Management Plan
to be identified by Council from time to time after
(DMP)
collaborative consultation between Council and TN.
(c) TN will, upon request from Council, agree to a variation of
this Deed to incorporate agreed obligations arising in
relation to the DMP.
(a) TN acknowledges that the Funding provides significant
support for payment of TN staff wages and benefits.
(b) TN will provide to Council, annually and incorporated in the
2. Workforce Planning
operational plans to be provided under clause 4.2 of this
Deed, a workforce plan detailing organisational structure,
and overall wage expenditure and anticipated future
requirements for additional staff.
(a) By 31 December 2023, TN will undertake and provide to
3. Finance efficiencies
Council an efficiency and effectiveness review. Scope and
and viability, marketing
structure to be determined by TN.
reserve replenishment,
organisational review
(b) TN will ensure that it is and remains solvent at all times.
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Priority Obligations and performance measures
(a) TN will conduct an organisational review and provide that
review to Council, and in conducting that review will:
(i) identify and explore revenue diversification
activities;
4. Additional revenue (ii) consider a tiered membership program;
streams
(iii) review options for generating greater revenue from
the Visitor Information Centre which do not compete
with Members
(iv) identify and commit to the pursuit of grant funding
opportunities.
(a) TN will engage with and demonstrate linkages with industry
bodies such as Visit Sunshine Coast and Tourism & Events
5. Industry Stakeholder
Queensland through various marketing and industry
Collaboration
development opportunities, and will report to Council
regarding its stakeholder collaboration on a quarterly basis.
(a) TN will develop an annual marketing plan for destination
marketing activities to attract high value travellers from
intrastate, interstate and international markets. The plan will
detail:
(i) marketing activations
(ii) TN member co-operative opportunities
6. Marketing
(iii) market segments
(iv) expenditure and anticipated return on investment
(v) reporting on focus areas and activities undertaken
in relation to the Hinterland and the Beach / Coastal
areas.
(a) TN will continue to implement a regional dispersal strategy
7. Regional Dispersal for high value travellers and will report to Council upon
request in relation to activities undertaken.
(a) TN will develop and implements a MICE (Meetings
8. Business Events Incentives Conventions Events) marketing program or
equivalent program which includes Council facilities,
demonstrating marketing to high value, low volume
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Priority Obligations and performance measures
corporate visitors with a focus on non-peak days of the
week and/or non-peak seasons.
(a) TN and Council will take reasonable steps to avoid any
duplication of funding or expenditure in relation to "Tourism
Events” (management, assessment, advisory etc) within
Noosa.
(b) By 31 December 2023 TN will develop an agreed strategy
with Council for TN to implement for event attraction,
retention, and delivery of the strategy.
9. Events
(c) TN will, upon request from Council, agree to a variation of
this Deed to incorporate mutually agreed additional terms as
to an event funding framework and appropriate event
funding mechanisms.
(d) TN acknowledges its key role in attracting high value visitors
to the region.
(a) TN will enhance its VIC activities to increase revenue.
10. Visitor Information (b) TN will explore potential partnerships with Hinterland
Centres (VIC) businesses in relation to the implementation of Hinterland
VICs and will report to Council upon request in relation to
the steps taken by TN and outcomes.
(a) TN will develop a detailed sustainability program to uphold
and enshrine “Noosa values” into the promoted visitor
experience.
(b) TN and Council will ensure that the sustainability program:
11. Sustainability (i) does not duplicate Council operational and strategic
activities;
(ii) focuses on concepts such as regenerative tourism;
(iii) where possible, monetises programs to provide
further revenue to TN and diversify funding streams.
(a) TN will manage destination marketing activities for Noosa
12. Sunshine Coast
LGA and any product development in conjunction with
Airport Collaboration
Sunshine Coast Airport.
13. Product development (a) TN will undertake and report to Council upon request in
and industry training relation to
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Priority Obligations and performance measures
(i) its activities in relation to sustainable product
development; and
(ii) relevant tourism related industry training for TN
members.
(a) TN will meet from time to time with business associations
14. TN’s leadership role and other representative bodies within the LGA to identify
with Local initiatives for the visitor economy and opportunities for
Stakeholders for NSC collaboration, and will report to Council upon request in
respect of these activities and outcomes.
(a) TN will continue to set the direction for Noosa's tourism
15. Values of Tourism industry, guiding sustainable progress to improve the visitor
sustainability, visitor experience for the benefit of visitors, businesses and the
experience, high value local community and environment, achieving marketing
/ low volume tourism strategies that attract high value-low volume visitation
through targeted marketing and promotions.
3. Notices
Notices to Council
Contact Name Scott Waters
Job title Chief Executive Officer
Address 9 Pelican St, Tewantin QLD 4565
Email address [email protected]
Notices to TN
Contact Name Susan Ewington
Job title Acting Chief Executive Officer
Address 2 Parkyn Court, Tewantin QLD 4565
Email address [email protected]
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Signing page
Executed as a Deed
Signed for and on behalf of Noosa Shire Council ABN 97 969 214 121
Signature of witness Signature of signatory
Full name of witness (print)
Name and position of signatory
Address of witness (print)
Signed for and on behalf of Tourism Noosa Ltd ABN 45 097 924 199
Signature of witness Signature of signatory
Full name of witness (print)
Name and position of signatory
Address of witness (print)
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