THE HONOURABLE EDWARD O'DONOHUE MLC , the Minister of the Crown for the time
being administering the Casino
Control Act 1991 acting for
and on behalf of the State of Victoria ("State")
AND
CROWN MELBOURNE LIMITED ACN 006 973 262 with its registered office
at 8 Whiteman Street, Southbank, Victoria ("Company")
(c) a deed of variation dated 3 June 1996 ratified by the Gaming
Acts (Amendment) Act 1996 and inserted as Schedule 4 to the Casino
(Management Agreement) Act 1993 ;
(d) a deed of variation dated 7 November 1996 ratified by the
Casino (Management Agreement) (Amendment) Act 1996 and inserted as Schedule 5
to the Casino (Management Agreement) Act 1993 ;
(e) a deed of variation dated 1 October 1998 ratified by the
Gaming Acts (Further Amendment) Act 1998 and inserted as Schedule 6 to the Casino
(Management Agreement) Act 1993 ;
(f) a deed of variation dated 3 April 2000 ratified by the
National Taxation Reform (Further Consequential Provisions) Act 2000 and
inserted as Schedule 7 to the Casino
(Management Agreement) Act 1993 ;
(g) a deed of variation dated 7 May 2002 ratified by the Casino
(Management Agreement) (Amendment) Act 2002 and inserted as Schedule 8 to the Casino
(Management Agreement) Act 1993 ;
(h) a deed of variation dated 8 July 2005 ratified by the Casino
Control (Amendment) Act 2005 and inserted as Schedule 9 to the Casino
(Management Agreement) Act 1993 ;
2.1 A Minister of the State must as soon as reasonably
practicable after the execution of this Deed introduce and sponsor a Bill in
the Parliament of Victoria to:
(a) ratify this Deed;
(b) amend the Casino Control Act 1991to permit the increase in
the maximum number of gaming machines available for gaming at any time while
the Melbourne Casino is open for business as set out in clause 2.2(b)(ii) of
this document;
(c) extend the date upon which the Casino Licence ceases to have
effect to 18 November 2050; and
(d) make ancillary amendments to other legislation.
2.2 This Deed (other than clauses 1, 2, 5 and 7 which are
effective on and from the date of this Deed) shall come into operation once
all the following have occurred:
(a) the Bill referred to in clause 2.1 has come into operation
as an Act; and
(b) the following amendments to the Casino Licence take effect:
(i) amendments to clause 8 (a) of the Casino Licence to:
(A) increase the maximum number of gaming tables in operation
and available for the playing of Table Games at any time while the Melbourne
Casino is open for business from 400 to 440; and
(B) increase the number of stations connected to any
Fully Automated TableGames from 200 to 250 stations in operation and
available for gaming at any time while the Melbourne Casino is open for
business;
(ii) an amendment to clause 8(c) of the Casino Licence to
increase the maximum number of gaming machines available for gaming at any
time while the Melbourne Casino is open for business from 2,500 to 2,628; and
(a) all references to "Crown Casino Ltd" are replaced by
references to
"Crown Melbourne Ltd";
(b) all references to the Gaming Machine Control Act1991 are
replaced by references to the Gambling Regulation Act 2003 ;
(c) in clause 2:
(i) the definition of "Authority" is replaced by the following
definition:
" Authority" means the Victorian Commission for Gambling and Liquor
Regulation;
(ii) the definition of "Casino Licence" is amended to include
the words
"as varied from time to time" after the words "Casino Agreement";
(iii) in clause 2 the following new definitions are inserted in
alphabetical order:
" Tenth Deed of Variation " means the Tenth Deed of Variation to the
Management Agreement between the State and the Company dated on or about 1
September 2014;
"Tenth Variation Commencement Date" has the same meaning as the term"Operative Date" in the Tenth Deed of Variation to the ManagementAgreement;
(d) new clauses 21A, 21B and 21C are inserted as follows:
"21A Further payments
The Company will make the following payments to the State:
(a) In addition to the payments referred to in clause 21A,
the Company will pay to the State the following additional amounts on
1 September 2022:
(i) if the Compound Annual Growth Rate of Normalised Gaming
Revenue from the Financial Year ending 30 June 2014 to the Financial Year
ending 30 June 2022 exceeds 4.0%, then the Company will pay to the State an
amount of $100,000,000; and
(ii) if the Compound Annual Growth Rate of Normalised Gaming
Revenue from the Financial Year ending 30 June 2014 to the Financial Year
ending 30 June 2022 exceeds 4.7%, then the Company will pay to the State, in
addition to the payment referred to in sub-paragraph (a)(i), a further amount
of $100,000,000.
(b) In this clause 21B:
(i) " Compound Annual Growth Rate " is calculated as follows
(and expressed as a percentage):
(Ending Value/Beginning Value) 1/8 - 1
Where:
Ending Value
is the Normalised Gaming Revenue for the Financial Year ending 30 June
2022; and
Beginning Value
is the Normalised Gaming Revenue for the Financial Year ending 30 June
2014;
(ii) " Normalised Gaming Revenue " means Gross Gaming Revenue,
plus Normalised Revenue from Commission Based Play; and
(iii) " Normalised Revenue from Commission Based Play " means
the total turnover from Commission Based Players, multiplied by 1.35%.
(c) The State may request details from the Company of the total
turnover from Commission Based Players at any time (but no more frequently
than twice in any one year). The Company must provide such details promptly
following the request.
21C Interest
21C.1 The amounts referred to in clauses 21A and 21B must be
paid in same day settlement funds before 2.00pm on the due date.
21C.2 If the Company fails to pay any amount due under clause
21A or clause 21B by the due date, without prejudice to any other right or
remedy arising because of that failure, the Company must pay to the State
interest (calculated daily) on the amount in default (including accrued
interest) at the Default Rate for the period from the due date until the
amount due and all interest payable has been paid.”
(e) a new clause 22.10 is inserted as follows:
"22.10 (a) Gross Gaming Revenue and
Commission Based Players' Gaming Revenue from New Gaming Product must be
separately accounted for by the Company and verified by the Authority.
(b) If casino tax paid to the State in accordance with clauses
22.1(b)(iii), 22.1(f) and 22A.1 in respect of Gross Gaming Revenue and
Commission Based Players' Gaming Revenue from New Gaming Product in any
Financial Year during the Guarantee Period is less than $35,000,000, the
Company must pay to the State within 60 days following the end of that
Financial Year, as additional casino tax, an amount equal to $35,000,000 less
the casino tax paid in respect of Gross Gaming Revenue and Commission Based
Players' Gaming Revenue from New Gaming Product for that Financial Year.
(c) New Gaming Product will be deployed throughout the Guarantee
Period at the Melbourne Casino on the following basis:
(i) no less than 80 per cent of the new gaming machines will be
placed in Non-VIP areas and no less than 75 per cent of those new gaming
machines placed in Non-VIP areas will be operated in Restricted Mode only;
"Fully Automated Table Game" has the same meaning as in the CasinoLicence;
"Gaming Table" has the same meaning as in the CasinoLicence;
“Guarantee Period" means the period from 1 July 2015 to 30 June
2021;
"New Gaming Product" means the new gaming products permitted to be installed
as a consequence of the amendments to the Casino Licence referred to in clause
2.2(b) of the Tenth Deed of Variation and does not include any gaming product
installed at the Melbourne Casino as at the Tenth Variation CommencementDate;
"Non-smoking areas" means all areas of the Melbourne Casino except those areas
declared pursuant to section 3E of the Tobacco Act 1987as smoking areas;
"Non-VIP areas" means all areas of the Melbourne Casino except VIP areas;
"Restricted Mode" means the usual mode of operation of a gaming machine that
is not operating in Unrestricted Mode;
"Semi Automated Table Game" has the same meaning as in the CasinoLicence;
“Unrestricted Mode” means the mode of operation of a gaming
machine operated at the Melbourne Casino within “Specified Areas”
pursuant to the notice issued by the Authority dated 17 August 2012 and
permitted pursuant to Ministerial Directions dated 17 August 2012 issued
under section 3.2.3 (1) of the Gambling Regulation Act 2003;
“VIP areas” means those areas in the Melbourne Casino reserved for
the use of Commission Based Players and certain designated members of the
Company's complex wide loyalty program and guests and comprising as at the
Tenth Variation Commencement Date those areas known as “Teak
Room”, “Mahogany Room”, “Riverside Slots” and
the private salons on levels 29 and 39 of “Crown Towers”.”
(f) clauses 22A.4 to 22A.9 (inclusive) are deleted in their
entirety;
(g) a new Part 5A is inserted as follows:
" PART 5A – REGULATORY CERTAINTY
24A.1 In this clause 24A and Annexure 1 the following terms have
the meanings indicated:
" Expert " means a partner or director of an independent, internationally
recognised chartered accounting firm or investment bank (or other professional
organisation agreed by the parties) which is not the then current auditor of
the Company or the Authority or (unless otherwise agreed) has not been during
the past twelve month period an adviser to Crown, the Authority, the
Department of Treasury and Finance or the Department of Justice (in relation
to gambling matters) and who has experience of the gaming industry;
(a) in the case of the State, the representative
from time to time nominated by the Minister of the Crown for the time being
administering the Casino Control Act; and
(b) in the case of the Company, the Chief Executive Officer of
the Company, or if that position does not exist, a position of equivalent
seniority or higher;
24A.2 (a) The State or the Authority must not without the Company's
prior written consent, take any action or series of actions that has or will
have the effect of:
(ii) increasing the then current rates of casino tax (or any
part of it) such that the increased rate exceeds the rate of that casino tax
(or part of it) set out in this Agreement as at the date of the Tenth Deed of
Variation or such higher rate as may be agreed by the parties
from time to time;
(iii) imposing any new tax or increasing any tax (including
levies or similarly described payments) on the Company, except where such new
or increased tax:
(A) applies generally to Victorian businesses or property owners
or occupiers;
(B) applies generally to businesses or property owners or
occupiers in the Melbourne CBD or a similar geographic location (but is not
specifically directed at the Company or the Melbourne Casino Complex); or
(C) applies generally to businesses in the hospitality industry
(including non-gaming businesses).
(b) The State acknowledges that the Company will suffer loss and
damage in the event of breach of paragraph (a) and the State and the Company
acknowledge that the ordinary principles for breach of contract apply.
24A.3 The State and the Company agree that certain other actions
or series of actions by the State or the Authority may give rise to
compensation being payable by the State to the Company.
24A.4 The actions or series of actions by the State and/or the
Authority referred to in clause 24A.3 and the principles and process for
determining the amount of compensation payable (if any) are set out in
Annexure 1.
24A.5 If any variation of the Casino Licence constitutes a
Trigger Event, the Company will not be entitled to bring or maintain a claim
for breach of clause 24A.2 in respect of that variation.
24A.6 (a) For the avoidance of doubt, for the purposes of this clause
24A and Annexure 1, the State does not include the Commonwealth, local
government or any Commonwealth or local government authority or body.
(b) For the avoidance of doubt, no damages for breach of clause
24A.2 or compensation under clause 24A.3 and Annexure 1 will be due or payable
by the State or the Authority with respect to:
(i) the granting of one or more casino licences or similar
authorities to any person or persons other than the Company or the granting of
licences or authorities permitting the operation or playing of gaming product
to any person or persons other than the Company; or
(ii) action or actions necessary to put in place the Victorian
government's current state-wide voluntary pre-commitment system, including the
prohibition of any alternative limit setting system (which, for the avoidance
of doubt, includes the Company's existing loss and time limit
setting system known as "Play Safe") from 1 December 2015.”
(i) A new Annexure 1 is inserted in the form of Annexure 1 to
this Deed.
(j) sub-paragraphs 32.1(b)(i) and (ii) are deleted in their
entirety and replaced with the following:
"(i) in the case of the State-
The Secretary to the Department of Treasury and Finance
3.2 The Company will not be required to make any payment in
respect of any accrued liability under clauses 22A.4 to 22A.9 (inclusive) in
respect of the period from 1 July 2014 to the Operative Date.
4. Previous agreement
On and from the Operative Date, this Deed supersedes all previous agreements
or understandings between the parties in connection with its subject matter,
other than any confidentiality undertakings made by any party in favour of the
other, which remain in force in accordance with their terms.
5. Force Majeure Event
None of the negotiation, preparation and execution of this Deed, its
ratification under clause 2 or any of the circumstances relating to or giving
rise to the creation of this Deed has or will cause or create any Government
Action, Force Majeure Event or breach of obligation under any Transaction
Document and the Company and the State so acknowledge.
The parties acknowledge and confirm that except as varied by this Deed the
terms and conditions of the Management Agreement remain in full force and
effect.
7. General provisions
Clauses 33 and 35 to 40 (inclusive) of the Management Agreement apply to this
Deed as if expressly included in this Deed.
EXECUTED AS A DEED.
SIGNED SEALED AND DELIVERED by THE HONOURABLE
EDWARD O'DONOHUE MLC
Minister
for Liquor and Gaming Regulation for and on behalf
1.1 Compensation is payable by the State to the Company if,
after the date of the Tenth Deed of Variation, during the term of the
Casino Licence, and without the Company's prior written consent, the State or
the Authority or any Stateauthority or State body takes any action or series
of actions which has the effect of:
(a) removing, reducing, amending or rendering ineffective
(partially or wholly) the then current exemption from the prohibition on
smoking within the VIP areas at the Melbourne Casino Complex (being, as at the
Tenth VariationCommencement Date, those areas declared pursuant to section 3E
of the Tobacco Act 1987 as smoking areas) (except where all other Australian
State and Territory Governments have taken substantially the same action or
series of actions); or
(b) adversely impacting the earnings before interest, taxes,
depreciation
and amortisation ( "EBITDA" ) of the Company by:
(i) reducing any maximum bets on Table Games,
Semi Automated Table Games and Fully Automated Table Games or gaming machines
(except where all other Australian State and Territory Governments have taken
substantially the same action or series of actions);
(ii) removing, reducing in number or amending or restricting the
then current manner in which gaming machines in unrestricted mode within the
Melbourne Casino are permitted to operate;
(iii) removing, reducing in number or restricting or amending
the then current manner in which Automated Teller Machines are permitted to
operate within the Melbourne Casino Complex (except where all other Australian
State and Territory Governments have taken substantially the same action or
series of actions);
(iv) introducing any form of mandatory pre-commitment other than
the requirement for players of gaming machines operating in unrestricted mode
to set time and net loss limits using the state-wide pre-commitment system
(except where all other Australian State and Territory Governments have
introduced mandatory pre-commitment with a similar effect); or
(v) restricting or amending the then current manner in which the
Company's loyalty scheme is permitted to operate (except where all other
Australian State and Territory Governments have taken substantially the same
action or series of actions).
(each such action or series of actions is a "Trigger Event" )
In the event of a Trigger Event, subject to the rest of this clause 2, the
Company will be entitled to compensation, calculated as follows:
C = ( M x A )
Where:
C is the amount of compensation;
A is the annualised negative impact on the EBITDA of the Company (normalised
for a theoretical win rate of 1.35% applied to turnover of Commission Based
Players) as a result of the Trigger Event; and
M is the multiple applicable at the time the relevant action or the first
action in a relevant series of actions by the State or the Authority (or Stateauthority or State body) occurred as set out in the table below:
Financial Year
Multiple (M)
FY15 to FY30 (inclusive)
10.5
FY31
10.0
FY32
9.5
FY33
9.0
FY34
8.5
FY35
8.0
FY36
7.5
FY37
7.0
FY38
6.5
FY39
6.0
FY40
5.5
FY41
5.0
FY42
4.5
FY43
4.0
FY44
3.5
FY45
3.0
FY46
2.5
FY47
2.0
FY48
1.5
FY49
1.0
FY50
0.5
2.2 Cap on compensation
(a) In respect of all Trigger Events occurring in any term of a
Victorian
Government ( "Term" ) the amount of compensation (C) will not exceed the cap
determined in accordance with paragraph (b) regardless of the number or types
of Trigger Events occurring in that Term.
(b) The cap for the period from the
Tenth Variation Commencement Date to 30 June 2015 will be $200,000,000. On 1
July 2015 and each 1 July thereafter
(each being an "Adjustment Date" ), the cap will be adjusted in accordance
with the formula set out below:
cap =
Where:
cap is the amount of the cap on and from the Adjustment Date;
X is the CPI number published for the quarter ending immediately
before the Adjustment Date;
Z is the amount of the cap calculated in accordance with this
formula on the previous Adjustment Date; and
CPI number is the Consumer Price Index (All Groups for Melbourne)
published by the Australian Bureau of Statistics (or any other index published
in substitution for this index).
The cap will be adjusted on each Adjustment Date in accordance with this
clause 2.2(b) regardless of whether, at any time prior to the Adjustment Date,
a claim for compensation has been made by the Company or a payment of
compensation has been made by the State.
(c) The cap that is applicable to any compensation payable in
respect of a
Trigger Event which occurs in a Term ( "Applicable Cap" ) is the cap
applicable at the time at which the relevant action or the first of any series
of actions which constitutes that Trigger Event occurs.
(d) If the compensation paid with respect to one or more
Trigger Events occurring in a Term equals the Applicable Cap, no further
compensation is payable to the Company with respect to any other Trigger Event
that occurs during that Term.
(e) No compensation will be payable in any Term for any action
or series of actions which constitutes a Trigger Event which occurred in a
prior Term and for which compensation has already been paid (or not paid as a
result of the cap). However, for the avoidance of doubt, the amount of
compensation payable in respect of Trigger Events which occur during a Term
will not be affected by any payment of compensation made in relation to any
Trigger Event which occurred during a prior Term.
(f) For the purposes of this Annexure, the Term of each
Victorian Government ends when a new Victorian Government is sworn in
following a Victorian general election. For the avoidance of doubt, the
Company's entitlement to compensation in relation to Trigger Events which
occur in any Term will not be extinguished as a result of a change of
government following a Victorian general election.
2.3 Exclusions
No compensation will be due or payable to the Company under clause 24A.3
and this Annexure 1 with respect to actions which:
(a) have an adverse impact on the Company's EBITDA of less than
$1 million per annum as assessed by the Company acting reasonably;
(b) arise directly from disciplinary action validly taken
against the Company; or
(c) advertise or promote the Victorian government's responsible
gambling, responsible service of alcohol or "quit smoking" programs, provided
such actions are not targeted solely at the Company.
(a) Where the Company is entitled to recover any amount (whether
by payment, discount, credit or otherwise) from any third party (including
from an insurer or under an indemnity or guarantee) in relation to any matter
for which a claim for compensation under this Annexure 1 could be made or
brought against the State by the Company, the State is nevertheless liable for
that Claim (the “Relevant Claim”) but, if and to the extent the
Relevant Claim is satisfied by the State, the Company must assign to the State
the benefit it may receive of any proceeds, debts, claims or other actions
from any third party in respect of the Relevant Claim, and otherwise hold such
benefit on trust for the State, save where to do so would be contrary to or in
breach of the Company's insurer's rights of subrogation.
(b) The Company is obliged to take all reasonable steps to
mitigate any loss that may otherwise arise in relation to any matter or for
which a claim for compensation under this Annexure 1 could be made or brought
against the State by the Company.
(c) The Company will not be entitled to make a claim under this
Annexure 1 to the extent it has received (or, as a result of the cap, not
received) a compensation payment under this Annexure 1 in respect of the
same TriggerEvent.
(d) The Company agrees that any compensation payable under this
Annexure 1 is the entire remedy for the occurrence of the Trigger Events which
may occur and it will not seek any other remedy against the State in
connection with the Trigger Events.
(e) If the Company becomes aware that a Trigger Event has
occurred, the Company must promptly provide a written notice to the State
which must set out in reasonable detail the Trigger Event and, at any time
within 2 years from becoming aware that a Trigger Event has occurred, the
Company may provide a
written notice ( "Compensation Notice" ) to the State which must state that it
is a Compensation Notice under this Annexure 1 and set out in reasonable
detail:
(i) the Trigger Event giving rise to the claim for compensation;
and
(ii) request from the Company such further details in relation
to, or clarification of, information provided in the Compensation Notice or
the methodology used to determine the amount set out in the
Compensation Notices as
the "Compensation Payable" as the State may reasonably require to assist the
State in understanding the impact of the Trigger Event on the Company's EBITDA
or the calculation of the amount set out in the Compensation Notice as the
"Compensation Payable"; or
(iii) dispute the correctness of the amount set out in the
Compensation
Notice as the "Compensation Payable" setting out in reasonable detail:
(B) dispute the correctness of the amount set out in the
Compensation
Notice as the "Compensation Payable".
(h) If the State does not take any of the actions required of it
under and within the time frames set out in clause 3(f) and 3(g)(ii), the
amount set out
in a Compensation Notice as the "Compensation Payable" will constitute the
compensation payable by the State to the Company in respect of the relevant
Trigger Event.
(i) If the State issues a notice in accordance with clause
3(f)(iii) or
3(g)(ii)(B) (a "Compensation Dispute Notice" ):
(i) the dispute must be resolved in accordance with the
procedure set out in clause 3(j); and
(ii) the compensation (if any) payable by the State to the
Company in respect of the relevant Trigger Event will be the amount (if any)
determined in accordance with clause 3(j).
(j) If the State issues a Compensation Dispute Notice in
accordance with clause 3(f)(iii) or 3(g)(ii)(B) then the following procedure
will apply:
(i) Within 20 Business Days of the State giving the Compensation
DisputeNotice ( "Negotiation Period" ), the Senior Management Representative from
each of the parties must meet at least once to attempt to resolve the dispute( "Dispute" ).
(ii) The Senior Management Representatives may meet more than
once to resolve the Dispute. The Senior Management Representatives may meet in
person, via telephone, videoconference or any other agreed means of
instantaneous communication to effect the meeting.
(iv) If the Senior Management Representatives are unable to
resolve the Dispute during the Negotiation Period, the State must nominate an
Expert by notice in writing to the Company within 30 Business Days from the
date of
expiration of the Negotiation Period ( "Nomination Period" ).
(vi) Within 30 Business Days of the date of expiration of the
NominationPeriod, the Experts so nominated will endeavour jointly to
determine the compensation (if any) payable in accordance with clause
3(j)(vii). The Experts must give to the parties any joint determination and
their reasons in writing within that 30 Business Day period. If the experts
jointly determine that compensation is payable, the written determination must
set out the Experts' calculation of each component of the formula.
(vii) In determining the compensation (if any) payable, each
Expert must:
(A) act as expert and not as arbitrator;
(B) have regard to the provisions of this Agreement and apply
the principles set out in Annexure 1; and
(C) have regard to any written submissions made to it by the
State and the Company, and either Expert may make such enquiries as it
considers in its absolute discretion to be necessary or desirable.
(viii) If either the Company or the State has failed to nominate
an Expert within the Nomination Period, the determination of the compensation
(if any) payable will be made within 30 Business Days of the date of
expiration of the Nomination Period by the sole Expert nominated by either the
Company or the State as the case may be.
(ix) If the Experts are unable jointly to determine the Dispute
within the period of 30 Business Days referred to in clause 3(j)(vi), then the
Company and the State jointly must, within 2 Business Days of the expiry of
that period, request the Law Institute of Victoria President to nominate,
within 10 Business
Days of the date of the request, another Expert ( "Umpire" ) to make a final
determination of the compensation (if any) payable in accordance with the
following provisions of this clause 3(j).
The Umpire must give its determination and its reasons in writing within 30
Business Days of its appointment. If the Umpire determines that compensation
is payable, the written determination must set out the Umpire's calculation of
each component of the formula.
(x) Any determination of the Experts (or, in the circumstances
contemplated by clause 3(j)(viii), the sole Expert) or the Umpire in
accordance with this Annexure 1 will be final and binding on the parties in
respect of the relevant Trigger Event. However, within 20 Business Days of the
determination being notified to the Parties, either the Company or the State
is entitled to make an application to the court for a declaration that, in
reaching the determination, the Experts, the sole Expert or the Umpire, as the
case may be, made an error in relation to a question of law.
(xi) If the court issues a declaration to the effect that an
error has been made in relation to the relevant question of law, whichever of
the Company or the State sought the declaration must immediately inform the
Experts, the sole Expert or the Umpire, as the case may be, provide them with
a copy of the declaration and request that they issue an updated
determination, together with reasons, in writing within 20 Business Days of
receiving a copy of the declaration. That updated determination will be final
and binding on the parties in respect of the relevant Trigger Event.
If the updated determination is to be issued by the Experts and they are
unable to agree on the determination within the period of 20 Business Days
referred to above, the matter must be referred to the Umpire in accordance
with clause 3(j)(ix).
(xii) If the court issues a declaration to the effect that no
error has been made in relation to the relevant question of law, the original
determination of the Experts, the sole Expert or the Umpire, as the case may
be, will be final and binding on the parties in respect of the relevant
TriggerEvent.
(xiii) To the extent of any inconsistency between the terms of
this Agreement and the applicable rules for expert determination published by
the Law Institute of Victoria, the terms of this Agreement prevail.
(xiv) In determining the compensation (if any) payable, the
Umpire:
(A) must act as expert and not as arbitrator;
(B) must have regard to the provisions of this Agreement and
apply the principles set out in Annexure 1;
(C) must have due regard to any evidence submitted by the
Experts appointed in accordance with clauses 3(j)(iv) and (v) as to their
respective assessments of the compensation (if any) payable;
(D) must act fairly and impartially as between the parties,
giving each party a reasonable opportunity to:
(I) put its case and deal with the case of the opposing Party;
and
(II) make submissions on the conduct of the expert
determination;
(E) subject to clauses 3(j)(xiv)(A) to 3(j)(xiv)(D), inclusive,
may:
(I) proceed in any manner he or she thinks fit;
(II) conduct any investigation which he or she considers
necessary to resolve the Dispute;
(III) examine such documents, and interview such persons, as he
or she may require and may make such directions for the conduct of the
determination as he or she considers necessary;
(F) must within 3 Business Days of nomination, disclose to the
parties any:
(I) interest he or she has in the outcome of the determination;
(II) conflict of interest;
(III) conflict of duty;
(IV) personal relationship that the Umpire has with either
party, or either party's representatives or Experts; and
(V) other fact, matter or thing which a reasonable person may
regard as giving rise to the possibility of bias; and
within 5 Business Days of receipt of any disclosure referred to in this
paragraph (F) a party may object to the Umpire. If so, the Company and the
State jointly must, within a further 2 Business Days, request the Law
Institute of Victoria President to nominate, within 10 Business Days of the
date of the request, a replacement Umpire for the purpose of this clause 3;
and
(G) must not communicate with one party without the knowledge of
the other party.
(xv) Each party must do all things reasonably necessary for the
proper, expeditious and cost-effective conduct of the expert determination
process contemplated by this clause 3 .
(k) Within 20 Business Days of the amount of compensation that
is payable by the State to the Company being agreed or determined in
accordance with this clause 3, the State must pay that amount to the Company
in cleared funds.
(l) Except as contemplated in clause 3(m), each party must bear
its own costs in complying with this clause 3.
(m) (i) Subject to paragraph (ii), the aggregate costs of the Experts
(and the Umpire, if applicable) will be borne equally by the parties.
(ii) If the amount of compensation that is payable by the State
is determined by an Expert, Experts or Umpire and is:
(A) more than 10% below the amount set out in the Company's
CompensationNotice under clause 3(e), the Company will bear the costs of the
Expert, Experts and Umpire, as applicable; or
(B) more than 10% above the amount set out in the Company's
CompensationNotice under clause 3(e), the State will bear the costs of the
Expert, Experts and Umpire, as applicable.
(n) Nothing in this clause 3 will prevent a party from
instituting proceedings to seek urgent injunctive, interlocutory or
declaratory relief in respect of a dispute as to the compensation payable.
(o) Time is of the essence of the parties' obligations under
this clause 3.".