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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
TOWNSVILLE
BREAKWATER
ENTERTAINMENT CENTRE
AMENDMENT BILL 1997
Queensland
TOWNSVILLE BREAKWATER
ENTERTAINMENT CENTRE
AMENDMENT BILL 1997
TABLE OF PROVISIONS
Section Page
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3 Amendment of s 2 (Objects of Act) . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4 Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5 Amendment of s 4 (Powers conferred on Local Governments) . . . . 4
6 Amendment of s 6 (Agreements have force of law) . . . . . . . . . . . . 5
7 Amendment of s 9 (Contribution by State) . . . . . . . . . . . . . . . . . . . . 5
8 Insertion of new s 14A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
14A Adjustment of interests as tenants in common . . . . . . . . . . . . . . . . . 5
9 Amendment of sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PART 4--FIRST AMENDMENT AGREEMENT
1997
A BILL
FOR
An Act to amend the Townsville Breakwater Entertainment Centre Act
1991
s1 4 s5
Townsville Breakwater Entertainment Centre
Amendment
The Parliament of Queensland enacts-- 1
title 2
Short
Clause 1. This Act may be cited as the Townsville Breakwater Entertainment 3
Centre Amendment Act 1997. 4
amended 5
Act
Clause 2. This Act amends the Townsville Breakwater Entertainment Centre Act 6
1991. 7
of s 2 (Objects of Act) 8
Amendment
Clause 3. Section 2-- 9
insert-- 10
`(g) to authorise the Council of the City of Thuringowa and the 11
Council of the City of Townsville to vary the joint venture with 12
the trustee to enable the upgrading of the Townsville Breakwater 13
Entertainment Centre.'. 14
of s 3 (Definitions) 15
Amendment
Clause 4. Section 3, definition "Townsville Breakwater Entertainment 16
Centre", after `site'-- 17
insert-- 18
`and includes the centre as upgraded from time to time'. 19
of s 4 (Powers conferred on Local Governments) 20
Amendment
Clause 5.(1) Section 4(1)-- 21
insert-- 22
`(ab) any upgrading of the buildings on the site; and'. 23
s6 5 s9
Townsville Breakwater Entertainment Centre
Amendment
(2) Section 4(1)(b), "operation or ownership"-- 1
omit, insert-- 2
`operation, ownership or upgrading'. 3
of s 6 (Agreements have force of law) 4
Amendment
Clause 6. Section 6, `the joint venture' to `for the purposes of this Act;'-- 5
omit, insert-- 6
`the joint venture in terms set out in schedule 1, part 1, 2, 3 or 4'. 7
of s 9 (Contribution by State) 8
Amendment
Clause 7. Section 9-- 9
insert-- 10
`(2) The Treasurer may contribute to the purposes of the joint venture, 11
out of amounts appropriated by Parliament, a further amount of not more 12
than $11.5 million for the upgrading of the Townsville Breakwater 13
Entertainment Centre.'. 14
of new s 14A 15
Insertion
Clause 8. After section 14-- 16
insert-- 17
of interests as tenants in common 18
`Adjustment
`14A.(1) This section applies if, after the commencement of this section, 19
a joint venturer makes a further contribution under the agreement set out in 20
schedule 1, part 1 as varied by the agreement set out in schedule 1, part 4. 21
`(2) The respective interests of the joint venturers in the site must be 22
adjusted under the agreement as varied.'. 23
of sch 1 24
Amendment
Clause 9. Schedule 1, after part 3-- 25
s9 6 s9
Townsville Breakwater Entertainment Centre
Amendment
insert-- 1
ART 4--FIRST AMENDMENT AGREEMENT 2
`P
THIS AGREEMENT is made the day of 1997 3
BETWEEN 4
(1) PERPETUAL TRUSTEES QUEENSLAND LIMITED 5
(ACN 009 656 811) a company duly incorporated and having its registered 6
office at 10th Floor, Riverside Centre, 123 Eagle Street, Brisbane, in the 7
State of Queensland as trustee of the Breakwater Island Trust (hereinafter 8
called "the Trustee") 9
AND 10
(2) BREAKWATER ISLAND LIMITED (ACN 010 271 691) a 11
company duly incorporated and having its registered office at Ground 12
Floor, Garden Square, 643 Kessels Road, Upper Mount Gravatt, in the 13
State of Queensland (hereinafter called "the Manager") 14
AND 15
(3) COUNCIL OF THE CITY OF TOWNSVILLE a local 16
government duly constituted under the provisions of the Local Government 17
Act 1993 and having its Public Office at Administration Building, Walker 18
Street, Townsville in the State of Queensland (hereinafter called "the 19
Townsville City Council") 20
AND 21
(4) COUNCIL OF THE CITY OF THURINGOWA a local 22
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Townsville Breakwater Entertainment Centre
Amendment
government duly constituted under the provisions of the Local Government 1
Act 1993 and having its Public Office at 86 Thuringowa Drive, Thuringowa 2
Central in the State of Queensland (hereinafter called "the Thuringowa City 3
Council") 4
WHEREAS 5
A. The Trustee, the Manager, the Townsville City Council and the 6
Thuringowa City Council are parties to an agreement dated the 13th 7
day of December 1991 (hereinafter called "the Participation 8
Agreement") in relation to the Townsville Breakwater 9
Entertainment Centre. 10
B. The Government of the State of Queensland has agreed to make a 11
grant to the Townsville City Council and the Thuringowa City 12
Council to enable the upgrading of the Townsville Breakwater 13
Entertainment Centre. 14
C. Legislation has been enacted by the Parliament of the State of 15
Queensland facilitating the upgrading of the Townsville Breakwater 16
Entertainment Centre. 17
D. The parties have agreed to enter into this Agreement to vary the 18
Participation Agreement. 19
NOW THIS AGREEMENT WITNESSES that in consideration of the 20
premises the parties hereto do covenant and agree as follows: 21
1. LEGISLATION 22
The parties acknowledge the Townsville Breakwater Entertainment Centre 23
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Townsville Breakwater Entertainment Centre
Amendment
Amendment Act 1997 has been enacted by the Parliament of Queensland to 1
facilitate this Agreement. 2
2. VARIATION OF PROVISIONS OF PARTICIPATION 3
AGREEMENT 4
The Participation Agreement is hereby varied as follows: 5
2.01 the following words are inserted in Clause 1.07 after the word 6
"Agreement": 7
"and as upgraded in accordance with the update Plans and 8
Specifications"; 9
2.02 the following words are inserted in Clause 1.13 in lieu of the words 10
"set out in": 11
"determined by"; 12
2.03 Clauses 1.19 to 1.23 inclusive are renumbered 1.20 to 1.24 13
respectively; 14
2.04 a new Clause 1.19 is inserted as follows: 15
"1.19 "update Plans and Specifications" means the plans and 16
specifications dated 23 April 1997, signed by the Joint Venturers, 17
and entitled the Townsville Breakwater Entertainment Centre 18
Update Plans and Specifications."; 19
2.05 the following words are inserted at the end of Clause 3.05: 20
"PROVIDED THAT in the event that any further contributions 21
to the capital of the Joint Venture are made by the Joint Venturers 22
other than in the proportion of their respective participating interests 23
the proportions in which the Joint Venturers shall thereafter share in 24
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Townsville Breakwater Entertainment Centre
Amendment
the profits or losses of the Joint Venture shall be adjusted 1
accordingly to reflect each Joint Venturer's overall contribution to 2
the capital of the Joint Venture as a percentage of the total capital 3
contributions to the Joint Venture."; 4
2.06 a new Clause 4.04 is inserted as follows: 5
"4.04 In the event that the participating interest of any of the Joint 6
Venturers is adjusted by 0.5% or more in accordance with Clause 7
3.05 the shares of the Joint Venturers shown on the deed of grant 8
referred to in Clause 4.01 shall be adjusted to reflect the participating 9
interests of the Joint Venturers."; 10
2.07 Clause 5.06 is deleted; 11
2.08 Clause 5.07 is renumbered Clause 5.06 and the words "in 12
accordance with Clause 5.06" are deleted therefrom; 13
2.09 a new Clause 23 is inserted as follows: 14
"23. FURTHER CONTRIBUTIONS 15
23.01 The parties acknowledge that the Government of the State of 16
Queensland has agreed to make a grant to the Townsville City 17
Council and the Thuringowa City Council being an amount of not 18
more than $11.5 million to enable the upgrading of the Townsville 19
Breakwater Entertainment Centre. 20
23.02 The Townsville City Council will contribute an amount 21
being 5/7 (five-sevenths) of the total amount granted by the 22
Government of the State of Queensland to the Townsville City 23
Council and the Thuringowa City Council in cash by way of further 24
capital contribution to the Joint Venture. 25
23.03 The Thuringowa City Council will contribute an amount 26
being 2/7 (two-sevenths) of the total amount granted by the 27
Government of the State of Queensland to the Townsville City 28
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Townsville Breakwater Entertainment Centre
Amendment
Council and the Thuringowa City Council in cash by way of further 1
capital contribution to the Joint Venture. 2
23.04 The cash capital contributions referred to in Clauses 23.02 3
and 23.03 shall be made by the Councils as to the sum of 4
$3.5 million within seven (7) days from the date of this Agreement 5
being an amount of $2.5 million from the Townsville City Council 6
and an amount of $1 million from the Thuringowa City Council, 7
and as to the balance of $8 million in sufficient time to enable 8
payment of the amount referred to in Clause 24.05 and progress 9
payments up to an amount of $8 million for the upgrading of the 10
Entertainment Centre in accordance with the update Plans and 11
Specifications. The sum of $3.5 million shall be invested by the 12
Committee of Management and used to pay the remaining progress 13
payments in excess of the amount of $8 million after the sum of 14
$8 million has been used to pay progress payments."; 15
2.10 a new Clause 24 is inserted as follows: 16
"24. UPGRADING OF ENTERTAINMENT CENTRE 17
24.01 The Joint Venturers shall cause the Entertainment Centre to 18
be upgraded in accordance with the update Plans and Specifications. 19
24.02 Each of the Joint Venturers accepts and approves the 20
upgrading of the Entertainment Centre in accordance with the update 21
Plans and Specifications and in particular the Townsville City 22
Council agrees that no town planning requirements other than those 23
incorporated in the update Plans and Specifications will be imposed 24
by the Townsville City Council. The Townsville City Council 25
agrees that no further development of any land owned by the 26
Trustee in its capacity as trustee of Breakwater Island Trust will be 27
in any way affected by the imposition of any carparking 28
requirements relating to the Entertainment Centre. 29
24.03 The Joint Venturers shall ensure that an appropriate system 30
of contract administration is instituted and maintained in respect of 31
the upgrading of the Entertainment Centre incorporating the 32
requirements if any of the Government of the State of Queensland 33
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Townsville Breakwater Entertainment Centre
Amendment
and shall ensure that all progress claims are certified by a quantity 1
surveyor approved by the Joint Venturers prior to payment. 2
24.04 In the event that the further capital contributions to be 3
contributed by the Townsville City Council and the Thuringowa 4
City Council are insufficient to enable the upgrading of the 5
Entertainment Centre in accordance with the update Plans and 6
Specifications each of the Joint Venturers hereby agrees that if the 7
Joint Venturers are unable to agree how such shortfall in funds is to 8
be met then notwithstanding Clause 5.06 of this Agreement the 9
Joint Venturers shall contribute in the proportion of their respective 10
participating interests the funds required for the upgrading of the 11
Entertainment Centre in accordance with the update Plans and 12
Specifications. 13
24.05 The Joint Venture shall from the cash capital contributions 14
referred to in Clauses 23.02 and 23.03 pay to the Trustee as operator 15
of the Entertainment Centre an amount of $150,000 in relation to the 16
decommissioning and recommissioning of the Entertainment 17
Centre necessary to allow the Entertainment Centre to be upgraded 18
in accordance with the update Plans and Specifications." 19
3. BREAKWATER ISLAND TRUST 20
3.1 The Trustee enters into this Agreement only in its capacity as trustee 21
of the Trust and in no other capacity. A liability arising under or in 22
connection with this Agreement can be enforced against the Trustee 23
only to the extent to which it can be satisfied out of property of the 24
Trust out of which the Trustee is actually indemnified for the 25
liability. This limitation of the Trustee's liability applies despite any 26
other provision of this Agreement and extends to all liabilities and 27
obligations of the Trustee in any way connected with any 28
representation, warranty, conduct, omission, agreement or 29
transaction related to this Agreement. 30
3.2 The parties other than the Trustee may not sue the Trustee in any 31
capacity other than as trustee of the Trust, including seek the 32
s9 12 s9
Townsville Breakwater Entertainment Centre
Amendment
appointment of a receiver (except in relation to property of the 1
Trust), a liquidator, an administrator or any similar person to the 2
Trustee or prove in any liquidation, administration or arrangement 3
of or affecting the Trustee (except in relation to property of the 4
Trust). 5
3.3 The provisions of this Clause 3 shall not apply to any obligation or 6
liability of the Trustee to the extent that it is not satisfied because 7
under the trust deed establishing the Trust or by operation of law 8
there is a reduction in the extent of the Trustee's indemnification out 9
of the assets of the Trust, as a result of the Trustee's fraud, 10
negligence or breach of trust. 11
3.4 It is acknowledged that the manager of the Trust is responsible 12
under the trust deed establishing the Trust for performing a variety 13
of obligations relating to the Trust, including under this Agreement. 14
No act or omission of the Trustee (including any related failure to 15
satisfy its obligations under this Agreement) will be considered 16
fraud, negligence or breach of trust of the Trustee for the purpose of 17
paragraph 3.3 of this Clause 3 to the extent to which the act or 18
omission was caused or contributed to by any failure by the 19
manager or any other person to fulfil its obligations relating to the 20
Trust or by any other act or omission of the manager or any other 21
person. 22
3.5 No attorney, agent, receiver or receiver and manager appointed in 23
accordance with this Agreement has authority to act on behalf of the 24
Trustee in a way which exposes the Trustee to any personal liability 25
and no act or omission of any such person will be considered fraud, 26
negligence or breach of trust of the Trustee for the purpose of 27
paragraph 3.3 of this Clause 3. 28
3.6 The Trustee is not obliged to do or refrain from doing anything 29
under this Agreement (including incur any liability) unless the 30
s9 13 s9
Townsville Breakwater Entertainment Centre
Amendment
Trustee's liability is limited in the same manner as set out in 1
paragraphs 3.1 to 3.2 of this Clause 3. 2
4. CASINO CONTROL ACT 3
This Agreement is subject to the Trustee obtaining within three (3) months 4
from the date hereof the consent of the Minister for the time being charged 5
with the administration of the Casino Control Act 1982 to the entry into this 6
Agreement by the Trustee and to the performance of all obligations by the 7
Trustee pursuant to this Agreement failing which this Agreement will cease 8
and determine in which event none of the parties hereto will have any claim 9
against any other of them with respect to any matter or thing arising out of, 10
done, performed or omitted to be done or performed under this Agreement 11
or in anticipation of the coming into force of this Agreement. 12
5. COST 13
The parties shall each pay their own costs of and incidental to this 14
Agreement. 15
6. GENERAL 16
Except as herein expressly varied or as otherwise absolutely required by 17
strict and necessary implication by reason of this Agreement the terms and 18
conditions of the Participation Agreement shall in all respects remain in full 19
force and effect and without limiting the generality of the foregoing the 20
provisions of Clause 8 of the Participation Agreement apply in respect of 21
the upgrading of the Entertainment Centre in accordance with the update 22
Plans and Specifications. Any words and phrases not defined herein which 23
are defined in the Participation Agreement shall have the same meaning 24
herein as such words and phrases bear in the Participation Agreement. 25
s9 14 s9
Townsville Breakwater Entertainment Centre
Amendment
IN WITNESS WHEREOF this Agreement has been executed by the 1
parties hereto on the dates hereinafter set forth. 2
THE COMMON SEAL of PERPETUAL ) 3
TRUSTEES QUEENSLAND LIMITED ) 4
is affixed in accordance with its articles of ) 5
association on the day of 1997 ) 6
in the presence of: ) 7
8
9
10
A Justice of the Peace 11
GIVEN under the Common Seal of ) 12
BREAKWATER ISLAND LIMITED ) 13
this day of 1997 by ) 14
authority of the Board of Directors in the ) 15
presence of ) 16
a Director thereof and ) 17
the Secretary thereof and in the presence of: ) 18
19
20
21
A Justice of the Peace 22
s9 15 s9
Townsville Breakwater Entertainment Centre
Amendment
SEALED with the Common Seal of the ) 1
TOWNSVILLE CITY COUNCIL and ) 2
signed this day of 1997 ) ___________________ 3
by ANTHONY JOHN MOONEY the ) Mayor 4
Mayor and BRIAN STEPHEN GUTHRIE ) 5
the Chief Executive Officer by authority of a ) ___________________ 6
Resolution of the Council in the presence of: ) Chief Executive Officer 7
8
9
10
A Justice of the Peace 11
12
13
SEALED with the Common Seal of ) 14
THURINGOWA CITY COUNCIL ) 15
and signed by LESLIE RONALD TYRELL ) ___________________ 16
the Mayor of the said City and countersigned ) Mayor 17
by ANTHONY JOSEPH GUNN the Chief ) 18
Executive Officer on the day of ) ___________________ 19
1997 who certify that they are the ) Chief Executive Officer 20
proper officers in that behalf in the presence of: ) 21
22
23
24
A Justice of the Peace'. 25
26
© State of Queensland 1997
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