Schedule 2—Deed of variation to the management agreement
DEED dated 14 November 1994
BETWEEN THE HONOURABLE HADDON STOREY QC MLC, the Minister of the Crown for the time being administering the Casino Control Act, acting for and on behalf of the State of Victoria ("State")
AND CROWN CASINO LTD. ACN 006 973 262 with its registered office at Level 1, 99 Queensbridge Street, South Melbourne, Victoria ("Company")
A. The State and the Company entered into an agreement dated 20 September 1993 ratified by and scheduled to the Casino (Management) Agreement Act 1993("Management Agreement").
B. The parties have agreed to vary the Management Agreement as provided in this document.
DEFINITIONS
Unless the context otherwise requires or the contrary intention appears, terms defined in the Casino Control Act or the Management Agreement have the same meaning when used in this document.
RATIFICATION AND OPERATION OF PROVISIONS
2.1 A minister of the State must introduce and sponsor a bill in the Parliament of Victoria to ratify this document as soon as reasonably practicable after its execution.
2.2 Clause 3 of this document shall come into operation once the bill referred to in clause 2.1 has come into operation as an Act.
2.3 Clauses 1, 2, 4, 5 and 6 of this document shall come into operation on the date of this document.
2.4 If the bill referred to in clause 2.1 has not come into operation as an Act by 30 June 1995 or such later date agreed by the parties this document other than clause 4 will terminate. Following such termination neither party shall have any claim against the other with respect to any matter or thing antecedent to or arising out of or done, performed or omitted to be done or performed under this document.
VARIATION OF MANAGEMENT AGREEMENT
3.1 The Management Agreement shall be varied in the following manner—
(a) the definition of "Drawings" in clause 2 shall be deleted and the following shall be substituted—
' "Drawings" means:
(a) the plans, designs and working drawings relating to the Temporary Casino Complex provided by the Company and initialled by the State's Nominated Representative on behalf of the State and the Company for the purposes of identification and described in Schedule Two; or
(b) the plans, designs and working drawings relating to the Melbourne Casino Complex provided by the Company and initialled by the State's Nominated Representative on behalf of the State and the Company for the purposes of identification and described in Schedule Two;
or such other plans, designs and working drawings authorised in writing by the Minister in accordance with section 16 of the Casino (Management) Agreement Act 1993;'
(b) the definition of "Melbourne Casino Complex Development Proposals" in clause 2 shall be deleted and the following shall be substituted—
' "Melbourne Casino Complex Development Proposals" means the proposals of the Company in relation to the construction, development and establishment of the Melbourne Casino Complex (including without limitation—
(a) proposals in relation to traffic management, taxi holding areas and availability;
(b) the design of, public access to and amenity of the roof garden;
(c) wind diffusion from the tower building to public open spaces; and
(d) the quality of finishes),
a copy of which has been signed by or on behalf of the State's Nominated Representative and the Company for the purposes of identification;'
(c) the following clause shall be added as clause 10.3—
"10.3 The Company must construct on the land located at 1–21 Clarke Street, South Melbourne being more particularly described in Certificates of Title Volume 5867 and Folios 3263 and 3264 a car park comprising not less than 600 car parking spaces which shall be available for use by patrons of the Melbourne Casino Complex. The Company must provide weather protection and security access from such car park to the Melbourne Casino Complex. In addition to all approvals required under the Control Acts, the design of the car park must be approved in advance by the Minister. The Company must use its best endeavours—
(a) to obtain as soon as practicable all necessary approvals under the Control Acts and from the Minister for the construction of the car park; and
(b) to complete the car park prior to the opening of the Melbourne Casino."
(d) the following clause shall be added as clause 11.3—
"11.3 If the Company wishes to vary any drawings, specifications or other documents approved by the State's Nominated Representative under clause 11.1, the Company must submit the proposed variation to the State's Nominated Representative for approval."
(e) clause 12.1 shall be varied by deleting the words "clause 11.1" and substituting "clauses 11.1 and 11.3";
(f) clause 12.2 shall be varied by adding the words "under clauses 11.1 or 11.3" after the words "State's Nominated Representative" where first appearing in that clause;
(g) clause 15.4 shall be varied by deleting the word "If" and substituting "Subject to clause 15.9, if";
(h) the following clause should be added as clause 15.9—
"15.9 The State's Nominated Representative, acting reasonably, must issue the certificate for the Melbourne Casino pursuant to clause 15.4, if—
(a) all the requirements of clause 15.4 are satisfied; and
(b) the Company is, at the time, diligently pursuing the Completion of the Melbourne Casino Complex.
If, having issued a certificate under clause 15.4 for the Melbourne Casino, the State's Nominated Representative acting reasonably determines that the Company is not diligently pursuing the Completion of the Melbourne Casino Complex the Company will be considered to have committed a breach of this document enabling action to be taken under clause 25".;
(i) clause 17.1 shall be deleted and the following shall be substituted—
"17.1 Subject only to clause 16.3, if the Company fails to Complete and open for business—
(a) the Temporary Casino by the Completion Date;
(b) the Melbourne Casino by the Completion Date; or
(c) the Melbourne Casino Complex by the Completion Date,
the State's Nominated Representative may give notice in writing to the Company that this clause 17 is to apply.";
(j) clause 17.2 shall be deleted and the following shall be substituted—
"17.2 If a notice is given under clause 17.1, the Company must pay to the State liquidated damages—
(a) in the event that the Temporary Casino is not Completed and open for business by the Completion Date (as varied by any Force Majeure Event pursuant to clause 16.3), at the rate of $50 000 for each day from that date to the date the Temporary Casino is Completed and open for business;
(b) subject to paragraph (c), in the event that the Melbourne Casino Complex is not Completed and open for business by the Completion Date (as varied by any Force Majeure Event pursuant to clause 16.3), at the rate of $50 000 for each day from that date to the date that the Melbourne Casino Complex is Completed and open for business; or
(c) in the event that the Melbourne Casino Complex is not Completed and open for business by the Completion Date (as varied by any Force Majeure Event pursuant to clause 16.3) but the Melbourne Casino is Completed and open for business, at the rate of $5 500 for each day from the date that is the later of the date that the Melbourne Casino is Completed and open for business and the Completion Date for the Melbourne Casino Complex (as varied by any Force Majeure Event pursuant to clause 16.3) until the Melbourne Casino Complex is Completed and open for business."
(k) clause 17.3 shall be varied by adding the words "or the Melbourne Casino Complex" after the words "Melbourne Casino" in paragraph (a);
(l) the following clause shall be added as clause 20.3—
"20.3 For a period of five years from 30 June 1995 the Company—
(a) agrees that it will commit to a major marketing programme at national and international level, to be co-ordinated with Tourism Victoria and the Melbourne Tourism Authority. The programme will incorporate strategies to address the marketing of exhibitions, conventions and incentive travel, recognising the role of Melbourne Tourism Authority in managing the promotion to these market segments. The programme is to be reviewed annually in advance with the first review to be completed by 30 June 1995;
(b) will participate in, and contribute to, the operation of the Melbourne Tourism Authority; and
(c) will support the efforts of the State and its representatives to attract hallmark events to Victoria."
(m) Schedule Two shall be varied by deleting the existing Schedule and substituting the attached Schedule in its place.
FORCE MAJEURE EVENT
The Company acknowledges that none of the negotiation, preparation and execution of this document, its ratification under clause 2 or any of the circumstances relating to or giving rise to the creation of this document has or will cause or create any Government Action or Force Majeure Event.
CONFIRMATION OF OTHER TERMS
5.1 The parties acknowledge and confirm that except as varied by this document the terms and conditions of the Management Agreement remain in full force and effect.
5.2 Without limiting clause 5.1, the Company acknowledges and confirms—
(a) that the Melbourne Casino Complex must be Completed by the Completion Date;
(b) that subject to clause 16.3 of the Management Agreement, the Company shall be liable for liquidated damages under clause 17 of the Management Agreement if the Melbourne Casino is not Completed and open for business by the Completion Date; and
(c) that the Company must comply with the requirements of clause 13.1 of the Management Agreement in relation to materials, fittings, equipment and workmanship utilised in carrying out the construction of the Melbourne Casino Complex.
GENERAL PROVISIONS
Clauses 33 and 35 to 40 (inclusive) of the Management Agreement apply to this document as if expressly included in this document.
EXECUTED as an agreement.
SIGNED by THE HONOURABLE HADDON STOREY QC MLC for and on behalf of the State of Victoria in the presence of<br> A. G. SANTIAGO
⎪ ⎪ ⎪
<br> HADDON STOREY
Signature of witness<br>ARMINDA SANTIAGO
HON HADDON STOREY QC MLC
Name of witness (print)
THE COMMON SEAL of CROWN CASINO LTD. is affixed in accordance with its articles of association in the presence of PETER JONSON
⎪ ⎪
LS LLOYD WILLIAMS
Director
Director
SCHEDULE TWO
DRAWINGS
Schematic design drawings described in the following list relating to the Melbourne Casino Complex, each of which has been initialled by or on behalf of the State's Nominated Representative and the Company for the purposes of identification.
Casino Complex
| Locality Plan | | Scale 1:1000 |
| Floor Plan, Level Ground/M | RL 2.4/6.0 | Scale 1:500 |
| Floor Plan Level 1 | RL 9.0/9.6 | Scale 1:500 |
| Floor Plan Level 2 | RL 13.8/14.6/15.6 | Scale 1:500 |
| Floor Plan Level 3 | RL 16.4/17.2/18.3 | Scale 1:500 |
| Roof Plan Level 4 | RL 20.4 | Scale 1:500 |
| Hotel Tower Plan | | Scale 1:200 |
| Floor Plan Level B2 | RL 3.9 | Scale 1:500 |
| Floor Plan Level B1 | RL 0.8 | Scale 1:500 |
| River Elevation | | Scale 1:500 |
| Longitudinal Section and Whiteman Street Elevation | | Scale 1:500 |
| Clarendon Street and Queensbridge Square Elevation | | Scale 1:500 |
| Crown Entertainment and Wintergarden Section | | Scale 1:500 |
Temporary Casino
| Locality Plan | Scale 1:500 |
| Ground Level Plan | Scale 1:100 |
| Galleria Plan | Scale 1:100 |
| Concourse Plan | Scale 1:100 |
| Concourse West Plan | Scale 1:100 |
| External Elevations | Scale 1:200 |
| Ground Floor Staff Area Facilities Plan | Scale 1:100 |
| Galleria Level Garden Terrace Floor Plan and Reflected Ceiling Plan | Scale 1:100 |
Temporary Casino South Extension
| Promenade Floor and Ceiling Plan | Scale 1:100 |
| Galleria and Concourse Floor Plan | Scale 1:100 |
| Sections, South Extension Elevations, South Extension | Scale 1:100 |
| Galleria and Concourse Table/Furniture/Slot Machine Plans | Scale 1:100 |
| Staff Uniform Storage and Change Facility Site Plan | Scale 1:100 |
| | |
| Staff Uniform Storage and Change Facility Floor Plan | Scale 1:100 |
| Staff Uniform Storage and Change Facility—Elevations and Sections | Scale 1:50 |
Schedule of Finishes compiled to August 1993, describing external and internal finishes relating to the Melbourne Casino Complex, initialled on each page by the State's Nominated Representative and the Company for the purposes of identification.