AGREEMENT dated
BETWEEN (“STP”)
AND (“ITP”)
[Address]
RECITALS
A. ITP and ….. (“HLPL”) have executed a Joint Venture Agreement on ….. (“JVA”) to jointly develop the JV Premises into a business park and/or residential or commercial accommodation (hereinafter referred to as the “Joint Venture”).
B. Prior to the execution of the JV Agreement, ITP has incurred substantial amount of costs and expenses in obtaining approvals from the relevant regulatory bodies to rezone the JV Premises for the purposes of a business park and/or residential or commercial accommodation.
C. Subsequent to the execution of the JVA, it was agreed that ITP shall be reimbursed for all costs and expenses incurred for the said rezoning of the JV Premises.
D. ITP shall be appointed as the Project Manager for the development and management of the JV Premises.
E. In consideration of the above, STP shall pay ITP project management cost.
F. STP and ITP have agreed to enter into Management Agreement on the terms and conditions contained in this Agreement to record their existing verbal agreement and understandings.
AGREEMENT
1. APPOINTMENT OF PROJECT MANAGER AND DURATION OF APPPOINTMENT
1.1 ITP is hereby appointed as the Project Manager for the purposes of rezoning and development of the JV Premises with effect from [ date ] (hereinafter referred to as the “Project Manager”).
1.2 Subject to the terms and conditions herein, ITP shall assume the responsibilities as the Project Manager for [ ] commencing from [date] and for such period of time as required by STP.
2. SCOPE OF WORKS
The scope of works of the ITP shall include :-
2.1 To rezone the JV Premises for the purposes of a business part and/or residential or commercial accommodation and/or such other additional purposes in accordance with the scope of objects of the JVA;
2.2 To procure declaration of release and approvals from the Minister and other relevant authorities for the purposes of rezoning and developing the JV Premises in accordance with the objects of the Joint Venture as set out in the JVA;
2.3 To procure approvals for the Precint Plan or Development Control from the Blacktown City Council and other relevant authorities;
2.4 To procure investors and/or investments for the development of the JV Premises;
2.5 To provide business and strategic plans for the JV Premises;
2.6 To establish and operate management for the rezoning and development of the JV Premises;
2.7 To negotiate and make decisions for and/or behalf of STP (as authorized by STP) in respect of rezoning and development of the JV Premises;
2.8 To provide other services as may be required by STP for the purposes of the JVA from time to time.
3. CONSIDERATION
3.1 STP shall reimburse ITP for all costs and expenses incurred for and/or behalf STP in the rezoning of the JV Premises;
3.2 STP shall pay ITP a lump sum of AUD60,000.00 monthly during the tenure of its appointment as the Project Manager; and
3.3 STP shall pay ITP such further and/or additional fees (which are excluded from paragraphs 3.1 and 3.2 of the above) as agreed by both parties from time to time.
4. AUTHORITIES AND CONTROL
4.1 In exercise of its functions, ITP shall comply with directions, guidelines and policies provided by STP at all material times.
4.2 ITP shall take all reasonable steps and shall not cause and/or permit any third party to cause to commit an act of breach of the terms and conditions herein or any act which are contrary to the directions, guidelines and/or policies issued by STP in light of the objects of the JVA.
4.3 ITP assuming the roles and responsibilities as the Project Manager shall report to STP as and when required by STP
5. TERMINATION NOT BY DEFAULT
5.1 This Agreement shall be terminated with the occurrence of one and/or more of such events as follow:-
a) the termination of the JVA; or
b) force majeure as defined in Clause 9 or any event or cause which is beyond the reasonable control of the parties herein.
5.2 Notwithstanding Clause 5.1, either party may terminate this Agreement by giving the other party not less than [2 months] notice in writing of its intention to terminate this Agreement;
5.3 Without prejudice of the foregoing, the rights and obligations of the parties arising from this Agreement shall continue to apply after termination of this Agreement.
6. TERMINATION BY DEFAULT
6.0 STP reserves its rights to terminate the appointment of ITP as the Project Manager in the event of fundamental breach and/or default by ITP of any terms and/or obligations of this Agreement.
6.1 Without prejudice of its right as provided in Clause 6.0 above, STP may issue a notice in writing to ITP to specify the defaults and requesting ITP to remedy the breach and/or default in such period of time as may be determined by STP.
6.2 Non-compliance of the said notice shall allow STP its rights to terminate this Agreement and/or appoint a third party in substitution of ITP as the Project Manager of the JV Premises.
7. ASSIGNMENT, NOVATION AND/OR DELEGATION
7.1 STP reserves its right to novate, assign and/or delegate to any third party any part hereof and/or the whole of this Agreement by giving prior notice of not less than 1 month to ITP;
7.2 ITP shall not novate, assign and/or delegate to any third party any part hereof and/or the whole of this Agreement without prior written approval of STP.
8. NOTICES
7.0 Any notice and/or requests to be given one party to the other as expressly provided in the terms and conditions of this Agreement shall be made in writing and shall addressed as follows:-
Address
if to STP : [ ]
if to ITP : [ ]
9. GENERAL
9.1 In this Agreement unless the contrary intention appears:-
(a) a word or expression defined in the statement of names and descriptions of the participants has the meaning indicated there;
(b) reference to legislation or a provision of legislation includes any amendments, modification, consolidation or re-enactment of the legislation or any legislative provision substituted for, and all legislation and statutory instruments and regulations issued under, the legislation;
(c) the singular includes the plural and vice versa and words importing a gender include other genders;
(d) words denoting individuals or persons include bodies corporate and trusts and vice versa;
(e) headings are for convenience only and do not affect interpretation;
(f) a reference to a clause, paragraph, schedule or annexure is a reference to a clause paragraph of or schedule or annexure to this Agreement and a reference to this Agreement includes any schedules and annexures;
(g) a reference to a document or agreement, including this Agreement, includes reference to that document or agreement as changed, novated or replaced from time to time;
(h) other grammatical forms of defined words or expressions have corresponding meanings;
(i) reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
(j) reference to a time and date concerning the performance of an obligation by a Participant is a reference to the time and date in Sydney, New South Wales, even though the obligation is to be performed elsewhere; and
(k) where the day on or by which anything to be done is a Saturday, a Sunday or a public holiday in the place in which that things is to be done, then that thing must or will be done on the next succeeding Business Day.
9.2 This Agreement and the Joint Venture Agreements will be governed by and construed in accordance with the law from time to time in force in New South Wales, and the Participants submit to the non-exclusive jurisdiction of the courts of that State.
9.3 Each Participant will bear its own legal and other costs and expenses of and incidental to the preparation and execution of this Agreement and the Joint Venture Agreements.
9.4 The Participants will bear equally all stamp duty payable relating to the establishment of the Joint Venture.
9.5 The Participants agree with each other and acknowledge to each other that the terms and conditions set out in this Agreement may be varied, amended or otherwise altered as desired providing each of the Participants agrees in writing to such variation, amendment or alteration. No particular form of document is required to effect the amendment.
10. DEFINITIONS
10.1 In this Agreement, the following words or expressions have the meanings indicated unless the contrary intention appears.
‘Accounts’ means the profit and loss account of the Joint Venture for the financial year ended on the Accounts Date.
‘Accounts Date’ means 30 June of each year unless the Participants agree otherwise.
‘Agreement’ means this agreement, including the Schedules and Annexures, as amended from time to time.
‘Associate’ has the meaning given by Division 2 of Part 1.2 of the Corporations Law.
‘Bank’ means the bank agreed by the Participants from time to time.
‘Budget’ means a detailed estimate of all income and expenditure (on revenue and capital accounts) with respect to the Development over a period.
‘Business Day’ means a day on which trading banks are open for general business in Sydney.
‘Claim’ means any claim, notice, demand, action, proceeding, litigation, investigation or judgment whether based in contract, tort, statute or otherwise.
‘Committee’ means the Committee established pursuant to clause 3.1.
‘Confidential Information’ means all financial, accounting, marketing and technical information, customer and supplier lists, files, forms, specifications, processes, statements, formulae, trade secrets, drawings and data (and copies and extracts made of or from those things), ideas, concepts, know-how and technology relating to the operations and dealings of the Development and the Joint Venture including, but not limited to:
(a) the organisation, finance, customers, markets, suppliers, intellectual property and know-how of the Joint Venture and the Participants; and
(b) the personal and business activities of the Participants.
‘Current Assets’ means accounting assets likely to be realised within a 12 month period from the Start-up Date.
‘Development’ means any form of development of the JV Premises into a business park and/or residential or commercial accommodation, conducted by the Joint Venture, and comprises the improvements to the JV Premises, including the value added to the JV Premises pursuant to the rezoning of the JV Premises and anything constructed on the JV Premises.
‘Employee Entitlements’ means, in respect of an Employee, all amounts owing and due to or in respect of that Employee in respect of or pursuant to that Employee’s contract of employment, whether arising under contract, statute, award or otherwise, including, without limitation, wages, salary, commissions, bonuses, allowances, emoluments, loadings and contributions to superannuation, statutory compensation or other funds and employee leave entitlements including annual leave, holiday pay, long service leave and sick leave (including loadings).
‘Employees’ means the persons employed by either Participant or a Group Body Corporate of a Participant.
‘to encumber’ means to mortgage, pledge, charge, assign by way of security or otherwise encumber; and ‘encumber’, ‘encumbered’ and ‘encumbering’ have corresponding meanings.
‘Entire Property’ means land situated at ….
‘Financial Year’ means a period of twelve (12) consecutive calendar months ending on 30 June or on such other day as the Committee may decide.
‘Force Majeure’ means any act, event or cause (other than lack of funds) which is beyond the reasonable control of the Participant concerned, including:
(a) act of God, peril of the sea, accident of navigation, war, sabotage, riot, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, strike or other labour difficulty whether or not involving employees of the Participant concerned), epidemic, quarantine, radiation or radioactive contamination;
(b) action or inaction of any government or governmental or other competent authority (including any court of competent jurisdiction), including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; and
(c) breakdown of plant, machinery or equipment or shortages of labour, transportation, fuel, power or plant, machinery, equipment or material.
‘Group Body Corporate’ means a related body corporate (as defined in section 50 of the Corporations Law) of a Participant.
‘Independent Valuation’ means a valuation prepared as follows:
(a) by an independent valuer appointed by the Joint Venture; or
(b) if the Participants are not able to agree on the person who should be appointed to prepare the valuation, by a valuer appointed in accordance with the following procedure:
(i) the Participants must have promptly asked the highest office holder in The Institute of Chartered Accountants in Australia or a peak industry representative body of chartered accountants which replaces it, to nominate a valuer; and
(ii) the Participants must have promptly appointed that valuer;
(c) the valuation will be of the asset’s market value (excluding goodwill) and will be prepared on the following basis:
(i) that it continues to be used for its use at the time of valuation in a continuing business; and
(ii) on a willing but not anxious seller and willing but not anxious buyer, with the full purchase price readily available, basis;
(d) if the valuation relates to a number of assets, the same methodology and assumptions will be used for each asset; and
(e) if a number of assets of the same class are being valued at the same time, they will be valued by the same valuer using the same methodology and assumptions for each asset;
and ‘Independently Valued’ has a corresponding meaning.
‘Joint Venture’ means the joint venture established under Clause 2.
‘Joint Venture Agreements’ means the Agreement and all other agreements or instruments entered into by or on behalf of the Participants in connection with the Development, all as amended from time to time.
‘Joint Venture Interests’ means, in relation to a Participant, that Participant’s undivided right, title and interest in:
(a) the Development; and
(b) all the Participant’s right, title, obligations and interest in, to and under this Agreement,
and may be expressed as the percentage established under clause 2.6.
‘JV Premises’ means that part of the Entire Property described as the JV Premises in Deed of Licence dated or such other portion of the Entire Property as is agreed between the parties from time to time in writing.
‘LEADR’ means Lawyers Engaged in Alternative Dispute Resolution.
‘Net Profits or Losses’ in respect of the Development means:
(a) profits or losses attributable to the Development, being the value added to the JV Premises by any improvements to the JV Premises pursuant to the Development, determined by Independent Valuation; and
(b) excludes the profits or losses arising in respect of the JV Premises, being profits or losses that would have arisen in respect of BLPL’s ownership of the JV Premises where the JV Premises had not been improved by the Development (such profits or losses being attributable to HLPL) as determined by Independent Valuation.
‘Outgoings’ means all costs, charges and expenses incurred in the conduct of the Development.
‘Participants’ means HLPL and STP and their respective successors and permitted assignees.
‘Project Director’ means any project director of the Development appointed by the Participants from time to time.
‘relevant interest’ has the same meaning as in Division 5 of Part 1.2 of the Corporations Law.
‘Services’ means :
(a) Management, development and technical expertise, knowledge and services;
(b) financing expertise, knowledge and services;
(c) the appointment and coordination of consultants; and
(d) any other services, activities or functions,
that are required by the Joint Venture in order to effectively and efficiently conduct the Development including the rezoning of the JV Premises.
‘Start-up Date’ means such date as is agreed between the parties.
‘Term of the Joint Venture’ means the period starting on the Start-up Date and ending, unless terminated earlier under the terms and conditions of this Agreement, on the date determined in accordance with clause 13.
‘Termination’ means termination of the Joint Venture in accordance with the terms of clause 13.
EXECUTED as an agreement.
SIGNED for )
by an authorized officer )
in the presence of : ) ………………………….
Signature of Officer
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Signature of Witness Name of Officer (print)
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Name of Witness Office Held
SIGNED for )
by an authorized officer )
in the presence of : ) ………………………….
Signature of Officer
……………………………. …………………………..
Signature of Witness Name of Officer (print)
……………………………. …………………………..
Name of Witness Office Held
