SPECIAL MEETING WARRNAMBOOL CITY COUNCIL 5.45 … · Michael Neoh Cr. David Owen ... The recent...

VENUE: Reception Room 25 Liebig Street Warrnambool

COUNCILLORS Cr. Robert Anderson (Mayor)

Cr. Sue Cassidy Cr. Kylie Gaston Cr. Tony Herbert Cr. Peter Hulin

Cr. Michael Neoh Cr. David Owen

Copies of the Warrnambool City Council’s Agendas & Minutes can be obtained online at www.warrnambool.vic.gov.au

Bruce Anson CHIEF EXECUTIVE

MINUTES SPECIAL MEETING WARRNAMBOOL CITY COUNCIL 5.45PM - MONDAY 15 OCTOBER 2018

Warrnambool City Council 15 October 2018 Minutes for Special Meeting Page | 2

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ORDER OF BUSINESS

Page No.

1. OPENING PRAYER & ORIGINAL CUSTODIANS STATEMENT .................................................................. 4

2. APOLOGIES ............................................................................................................................................. 4

3. DECLARATION BY COUNCILLORS & OFFICERS OF ANY CONFLICT OF INTEREST IN ANY ITEM ON THE AGENDA ........................................................................................................................... 4

4. REPORTS

4.1 HORSES ON LADY BAY AND LEVYS POINT BEACH ................................................................. 5

5. CLOSE OF MEETING. ............................................................................................................................ 42


MINUTES OF THE SPECIAL MEETING OF THE WARRNAMBOOL CITY COUNCIL HELD IN THE

RECEPTION ROOM, WARRNAMBOOL CIVIC CENTRE, 25 LIEBIG STREET, WARRNAMBOOL ON MONDAY 15 OCTOBER 2018 COMMENCING AT 5.45PM

PRESENT: Cr. Robert Anderson, Mayor/Chairman Cr. Sue Cassidy

Cr. Kylie Gaston Cr. Tony Herbert Cr. Peter Hulin Cr. Michael Neoh Cr. David Owen

IN ATTENDANCE: Mr Bruce Anson, Chief Executive Mr Peter Utri, Director Corporate Strategies Mr Scott Cavanagh, Director City Infrastructure Mr Andrew Paton, Director City Growth 1. OPENING PRAYER

Almighty God Grant to this Council Wisdom, understanding and Sincerity of purpose For the Good Governance of this City Amen.

ORIGINAL CUSTODIANS STATEMENT

I wish to acknowledge the traditional owners of the land on which we stand and pay my respects to their Elders past and present.

2. APOLOGIES

Nil. 3. DECLARATION BY COUNCILLORS & OFFICERS OF ANY CONFLICT OF INTEREST IN ANY ITEM

ON THE AGENDA

Pursuant to Sections 77, 78 and 79 of the Local Government Act 1989 (as amended) direct and indirect conflict of interest must be declared prior to debate on specific items within the agenda; or in writing to the Chief Executive Officer before the meeting. Declaration of indirect interests must also include the classification of the interest (in circumstances where a Councillor has made a Declaration in writing, the classification of the interest must still be declared at the meeting), i.e. (a) direct financial interest (b) indirect interest by close association (c) indirect interest that is an indirect financial interest (d) indirect interest because of conflicting duties (e) indirect interest because of receipt of an applicable gift (f) indirect interest as a consequence of becoming an interested party (g) indirect interest as a result of impact on residential amenity (h) conflicting personal interest A Councillor who has declared a conflict of interest, must leave the meeting and remain outside the room while the matter is being considered, or any vote is taken. Councillors are also encouraged to declare circumstances where there may be a perceived conflict of interest. Nil.

4. REPORTS


4.1 HORSES ON LADY BAY AND LEVYS POINT BEACH PURPOSE To seek Council approval for a further negotiated and amended commercial horse training arrangements at Lady Bay and Levy’s Point Beaches.

EXECUTIVE SUMMARY Further to Council’s resolution at its meeting on 1 October 2018, the Warrnambool Racing Club, in

conjunction with Country Racing Victoria, have provided a counter offer which satisfies Councils resolution.

The Club has asked for an amendment to the terms of the agreement to include a longer term of use to justify their substantive investment and a change to the way in which numbers limits can be applied to ensure they reflect an actual breach of conditions triggering a change rather than an arbitrary change.

The three year term in the previously drafted agreements had reflected the prior transitional arrangements and a 10 option better reflects the intent of the agreements to form an ongoing arrangement that is supported by the infrastructure investments.

The two beach areas are both controlled by Council as land manager. However, different conditions prevail over the use of Lady Bay which sees horse training as a permitted use under gazettal and levy’s beach which Council can only grant a license too for use for a maximum of 2 years at any one time as per a ministerial order on the beach.

Council is required to adhere to this ministerial order and intends to enter an agreement which is for 5 times 2 year terms subject to continuing ministerial approval from the Minister for Environment and Climate Change.

Both these changes are in alignment with Councils previous decision and provide what surety that is in Councils control to the Club and Racing Victoria for the investment decision made and clarity as to the operating parameters.

All clauses in relation to breaches affecting use arrangement remain. The change removes the ability to arbitrarily reduce the use from the agreed numbers.

The horse racing industry has a long history and association with Warrnambool and its beaches. The training of race horses between sunrise and 10:00 am was first gazetted in 1911 and allowed for the training of race horses under the control of trainers as a permitted use in this area.

Council has previously issued permits to race horse trainers to exercise horses on the Lady Bay and Levy’s Beaches in partnership with the Warrnambool Racing Club and South West Owners & Trainers Riders Association (SWOTRA).

The recent Ministerial decision to allow racehorses to resume training at Levy’s enables Council to have confidence a new licence would be able to be issued for this use and to reissue permits for training at Levy’s. Conditions related to the use are contained in a document from the community consultation meeting held 22nd August 2018 – Refer Appendix A.

Training cannot commence at Levy’s until Warrnambool Racing Club (WRC) have obtained a number of consents from Department of Environment, Land, Water and Planning (DELWP) and Parks Victoria which have been submitted and are awaiting approval.

WRC are in the process of obtaining the necessary consents so that training can commence at Levy’s before December when horses are not permitted to train on Lady Bay beach. Swim Only activities are permitted at Lady Bay over the Summer period.

The process has also given Council the opportunity to negotiate a reduction in horse numbers on Lady Bay and to require the Warrnambool Racing Club (WRC) to make a funding contribution towards the construction of a new bespoke car park for horse training adjoining the existing car park at the Pavilion.

WRC have written to Council seeking approval to resume training at Levy’s, have agreed to reduce numbers of horses training at Lady Bay, and made a revised offer in alignment with the resolution of October 1 2018 to contribute to the construction costs for the car park at Lady bay and to make improvements to signage and parking at Levy’s Beach – Refer Appendix B amended.


The cost of new parking facilities and wash down facilities at Lady Bay are estimated at $500,000 and $100,000 respectively. The Club has agreed to increase their contribution up to $400,000 for the Lady Bay car park as well as contributing up to $100,000 to the Levy’s Beach car park and signage. They have also requested to be part of the tender assessment panel and have some input in to the scoping of the project to ensure costs are contained and that a consensus outcome can be achieved.

A draft Agreement has been developed for horse training at Levy’s Point Beach – Refer Appendix C amended. There are proposed transitional arrangements in place to allow 60 horses at Levy’s and 40 at Hoon Hill (Hoon Hill is outside Council’s jurisdiction) until signage and car parking facilities have been improved. Thereafter there is a cap of 120 training and 40 at Hoon Hill.

A new Agreement for horse training and swimming at Lady bay has been negotiated and developed with horse numbers capped at 50 training on Lady Bay beach (reduced from 96), and up to 116 swimming, with no more than 116 horses in total on any day (unchanged). The Agreement requires training to cease between 1st December and 31st March, although swimming can continue during these times - Refer Appendix D amended.

If Council is agreeable, the necessary Agreements will be executed and a funding Agreement will be entered into between Council and WRC, to construct a new car park at Lady Bay.

Agreements cannot be executed until pending State Government approvals have been issued to WRC.

MOVED: CR. NEOH SECONDED: CR. GASTON

That Council amend the Council and Warrnambool Racing Club for Lady Bay Foreshore Agreement (Appendix D) from a 3 year term to a 5 + 5 year term by mutual agreement.

CARRIED – 6:1

Crs. Neoh, Gaston, Cassidy, Herbert, Hulin & Anderson voting for the motion

Cr. Owen voting against the motion

MOVED: CR. GASTON SECONDED: CR. CASSIDY That Council provide approval for the Chief Executive to enter into an agreement for commercial horse exercising in accordance with Section 17B of the Crown Land (Reserves) Act licence for Levy’s Beach, which retains the intent of Appendix C, subject to the agreement and licenses according with all laws, orders and other legal requirements.

CARRIED – 4:3

Crs. Gaston, Cassidy, Herbert & Anderson voting for the motion

Cr. Owen, Hulin & Neoh voting against the motion

BACKGROUND The horse racing industry has had a long association with Warrnambool and its beaches. The ability to provide beach access to the horse racing industry has attracted increased attention after it was revealed the 2015 Melbourne Cup winner, Prince of Penzance, used the Lady Bay Beach as part of its training program. Council issues permits for race horse trainers to exercise horses on the Lady Bay and Levy’s Beaches in partnership with the industry and Warrnambool Racing Club. As land manager for these areas Council is required to seek Ministerial approval to licence these uses which are controlled by strict permits. Training was halted at Levy’s pending the outcome of the Belfast Coastal Reserve Management Plan review and consultation process.


The recent Ministerial decision outlined in the adopted Belfast Coast Management Plan allows for racehorses to resume training at Levy’s as an accepted activity. This enables Council to seek an updated license to reissue permits for training at Levy’s. Conditions related to the use are contained in a document from the community consultation meeting held 22nd August 2018 – Refer Appendix A. CURRENT STATUS WCC will apply to DWELP to extend and reinstate the licence at Levy’s as land manager to be able to issue the permits that will allow the resumption of training at Levy’s. The continuation of training at Lady Bay is allowed as permitted use under a separately enacted gazettal most recently in 1981. Once approval has been given, Council can proceed to enter into an Agreement with WRC which allows permits to be issued for the use. KEY CONSIDERATIONS Further to the issuing of the appropriate licence and permits training cannot commence at Levy’s until Warrnambool Racing Club (WRC) have obtained a number of consents from Department of Environment, Land Water and Planning (DELWP) and Parks Victoria these have been submitted awaiting approval. WRC are working to obtain all necessary consents to enable training to commence at Levy’s before December when horses are no longer permitted to train on Lady Bay beach for the seasonal shut down, although swimming is permitted. The process has also given Council the opportunity to negotiate a reduction in horse numbers on Lady Bay and to work with the Warrnambool Racing Club (WRC) to construct a new bespoke car park for horse training adjoining the existing car park at the Pavilion. A draft Agreement has been developed for horse training at Levy’s Point Beach. There are proposed transitional arrangements in place to allow 60 horses at Levy’s and 40 at Hoon Hill (Hoon Hill is outside Council’s jurisdiction) until signage and car parking facilities have been improved. Thereafter there is a cap of 120 training and 40 at Hoon Hill. A new agreement for horse training and swimming at Lady bay has been negotiated and developed with horse numbers capped at 50 training on Lady Bay beach (reduced from 96), and retain the daily cap of 116 swimming and training (unchanged). Training is not allowed between the 1st December to 31st March each year. The Club in return for agreement to major infrastructure works in the area is seeking an extended agreement with Council to amortise its investment. CONSULTATION / COMMUNICATION Extensive consultation has been undertaken by DELWP and Parks Victoria with the community as part of the Belfast Coastal Reserve Management Plan. Any Agreement with the WRC and subsequent permits for training at Levy’s will be consistent with the management plan. TIMING With the Lady Bay closure period nearing there is some urgency to complete works so that training activities can re-commence at Levy’s before December. FINANCIAL CONSIDERATION The initial costs of infrastructure upgrades at Levy’s will be funded by the WRC. Council will receive additional income from trainers in accordance with our fees and charges schedule which will cover any maintenance costs.


Council will enter into a funding agreement with WRC to cover the cost of constructing the new car park and associated facilities at Lady Bay. An updated funding contribution up to $400,000 has been offered to Council by the WRC. RISK Risks to Council are assessed as financial and reputational. Reputational as some members of the community do not agree that training of racehorses should take place at Lady Bay and Levy’s Point beaches and have voiced significant opposition through the State Governments Belfast Coastal Reserve Management Plan consultation process. As Council is the land manager for Lady Bay beach, and parts of Levy’s, Council has some risk exposure, however this is mitigated by the Agreement with WRC and the individual permits issued to trainers which require health and safety to be addressed during training As well as strict conditions of use for designated areas. Utilisation of the area remains contingent to adherence to the use agreement by the industry and is subject to continuing approval of licenced use by the minister. Council can only allow the use of the beach to the extent of its authorisation as crown land manger. WRC are responsible to provide a safe workplace for their trainers as training is a profession and therefore a workplace covered by Health and Safety legislation. WRC employs supervisors to oversee training activities to minimise risk.


APPENDIX A






APPENDIX B AMENDED





APPENDIX C AMENDED

WARRNAMBOOL CITY COUNCIL

AND

WARRNAMBOOL RACING CLUB

FOR

LEVY’S POINT

COMMENCEMENT DATE: ____ / ____ / ____


AGREEMENT THIS AGREEMENT is made on the specified in Item 1 if the Schedule 1 between the party referred

to in Item 2 of the Schedule 1 ("the Council")

AND

The party referred to in Item 3 of the Schedule 1 ("the Club")

RECITALS:

A. Council is the Committee of Management pursuant to the Crown Land (Reserve) Act 1978 and as Committee of Management has the care, protection and management of lands reserved for public purposes within the City of Warrnambool which comprises sections of the Levy’s Beach area. Council does not have jurisdiction over Hoon Hill and other areas of the Belfast Coastal Reserve referred to in the Belfast Coastal Reserve Management Plan. B. Pursuant to regulations published in the Victorian Government Gazette number 110-11 November 1981, regulation 36 states that no person shall ride, drive or lead or allow to roam any horse or other animal upon any part of the reserve, except with permission in writing at such times and in such areas as the Committee may specify from time to time. C. Council as the Committee of Management has granted permission, for horse owners and trainers

(subject to permits being issued), for the purposes of exercising horses, in the area of foreshore

delineated by a red line commencing at Levy’s Beach delineated on the map being annexed to

schedule 2 hereof (collectively called "the area"). D. Council and the Club have agreed that, as defined in the attached diagram (App. A) whereby

the Club would oversee the use of the area in accordance with the terms and conditions of this

Agreement and the permits.

IT IS AGREED AS FOLLOWS: 1. TERM

1.1 This Agreement shall commence on the date specified in Item 4 of Schedule 1 ("the

Commencement Date") and shall continue to clause 5, for the period set out in Item 5 of the

Schedule ("the period") subject to the provisions of the agreement.

2. CONTRACT AMOUNT

2.1 The Club shall pay to Council a fee ("the Contract Amount") referred to in Item 6 of the Schedule 1. The Contract Amount shall be paid by monthly instalments in arrears on the 1st day of each month.

2.2 If the term of the period is greater than one year, then the Contract Amount will be reviewed

on the anniversary of the commencement date throughout the period. Council and the Club shall

meet three months prior to the anniversary of the commencement date to review the new Contract

Amount. In reaching the new Contract Amount, Council and the Club will negotiate in good faith. In

the event that Council and the Club cannot reach agreement as to the new Contract Amount, then

the new Contract Amount will determined by Council. The new Contract Amount will become the

Contract Amount for the purpose of this Agreement.


2.3 At the commencement date of this agreement Council and the Club shall set a fee, on a per

horse basis, to be charged to persons using the area. If the term of the period is greater than one

year, then the fee to be charged will be reviewed on the anniversary of the commencement date

throughout the period and shall be by agreement between Council and the Club. In the event that

Council and the Club cannot agree on the fee, then the fee will be determined by Council as defined

in Councils Fees & Charges.

3. THE CLUB' COVENANTS The Club covenants and agrees to:

3.1 At its own cost, employ a suitably qualified person or persons who will attend the area

Monday to Friday, whenever horses are trained on the beach and be present at all times,

just prior to dawn (as established by the Bureau of Meteorology website) and 11.15am to

ensure compliance and collect access data within the terms of the permit issued by Council,

and this Agreement by persons using the area.

3.2 Pay all wages, group tax, superannuation, guarantee levy obligations, payroll tax, workers

compensation insurance and all other payments required by law to be made and which may

become due with respect to the employment of any staff by the Club.

3.3 At all times properly insure and keep insured with a reputable insurer every worker employed

by the Club who should be insured by it under the provisions of the relevant act dealing with

workers compensation insurance and to comply with the provisions and regulations of that

act.

3.4 Comply with and ensure that its employees comply with all lawful instructions of the Council

and perform all of the covenants and duties contained in this Agreement diligently, honestly

and to the best of their abilities and ensure that its employees also diligently, honestly and

to the best of their abilities undertake the Club's obligations (as are applicable to the

employees).

3.5 Ensure that at all times to the best of its ability maintain a co-operative manner and attitude

with and towards the Council and the Councils employees and ensure that its employees

also maintain a co-operative manner and attitude with and towards the Council and the

Councils employees.

3.6 Keep such proper books and records as the Council from time to time may require and shall

when required by the Council deliver to it full and correct accounts and receipts, payments,

transactions and dealings by them of and in relation to the terms or duties to be carried out

pursuant by it to this Agreement. The said books and records shall be open for inspection

by the Council, their auditors or accountants at all times. The Club shall also supply such

information as the Council, their auditors or accountants may from time to time require.

3.7 If requested by Council, to meet with Council at a suitable time to be arranged to discuss

any areas or matters which may require attention.

3.8 Comply with all laws including but not being limited with laws pertaining to occupational

health and safety and any local laws or regulations. The Club and its employee shall also

ensure that persons using the area and the car park shall also comply with all laws including

but not limited to occupational health and safety laws and any local laws or regulations.


3.9 Advise Council, verbally initially and then in writing of any breach of the Agreement

and or any of the terms of the permits immediately upon it becoming aware of the

breach. In the case of a breach of the terms of the permit, the Club will supply to

Council, the name and address of the person breaching the terms of the permit and

the nature of the breach. Further, if required by Council, the Club or its employee shall

provide any evidence required by Council to assist Council in prosecuting the breach

including but not being limited to providing a statutory declaration.

3.10 Ensure that the terms of the permits issued are being adhered to at all times. 3.11 Ensure that the welfare of the horses using the area is of paramount importance and

that the persons using the area adhere with the Code of Practice for the Welfare of

Horses as revised from time to time.

1.12 Ensure that on any one day, that the maximum number of horses using the beach for

exercise is restricted to 60 and 40 horses using the “Hoon Hill” area for exercise. In

busy periods such as the May Racing Carnival, advise Council if numbers are

potentially exceeded and what numbers are anticipated.

Once infrastructure upgrades to parking areas and installation of additional signage,

this number is allowed to increase to 120 horses on Levy’s Beach and 40 on Hoon

Hill, subject to permits being obtained as described in this agreement.

The infrastructure upgrades and signage are attached at (App. B)

3.13 Collect and record details of horses using the area as well as details of the trainer,

the number of vehicles of each trainer in the main car park and shall supply such

information to Council if requested. The Club shall ensure that any person using the

area has been issued with a permit and that the permit is still current and valid.

3.14 Undertake and supervise a roster of persons who are to use the area on a daily basis.

The Club acknowledgers that not all of the horses using the area will be race horses

and the Club will make appropriate arrangements with owners and trainers of non-

race horses for the use of the area.

4. COUNCILS RESPONSIBILITIES The Council shall be responsible for:

4.1 Updating this agreement and issuing permits to persons to use the area. Council will

be responsible for establishing the terms and conditions contained in the permits and

can alter the terms and conditions of the permits from time to time.

4.2 Providing a full list of permit holders to the Club as well as the terms and conditions

attached to the permits.

4.3 Advising the Club if a permit has been suspended, cancelled or varied.


5. TERMINATION

This Agreement may be terminated by:

5.1 Immediately and without notice upon the happening of one or more of the following events

("the Determining Events"):

5.1.1 If the Club defaults in the performance of any covenant, undertaking or agreement on its part

to be performed under this Agreement and fails to remedy the default within three days of

receiving a notice of default;

5.1.2 If the Club is wound up, has a receiver, a receiver and manager or an administrator appointed

or is placed under official management, or enters into any scheme of arrangement or any

resolution it is proposed which would if passed in it being would up voluntarily or otherwise;

6. NOT TO INVALIDATE INSURANCE

The Club, their employees, invitees or agents shall not do or permit anything to be done in or on

the area of the car parks whereby any policy or policies of insurance taken out by the Council may

become void or voidable or whereby the premiums thereon may be increased. The Club shall pay

to the Council all sums paid by way of increased premiums and all expenses incurred by the

Council in or incidental to any policy or policies which are void or voidable together with any loss

sustained by the Council occasioned by any breach of this covenant.

7. ASSIGNMENT

This Agreement is personal to the Council and to the Club and is not assignable.

8. COMPLY WITH STATUTES The Club shall comply with all statutes, legislations, local laws and regulations.

9. DUTIES OF THE PARTIES Each of the parties shall be just and faithful to the other and offer every assistance in their power in

carrying out the terms of this Agreement.

10. DISPUTES All disputes, differences and questions whatsoever which may arise between the parties as

to the construction of this Agreement or as to any matter or thing connected with or arising out of

this Agreement shall be initially determined by the parties meeting in an attempt to resolve any

dispute and failing the dispute being resolved within seven days of that meeting then the dispute,

question or other matter shall be referred to a single arbitrator appointed under the provisions

of the relevant Act dealing with commercial arbitration in the relevant State where the business

is located.


11. LEGAL COSTS Each party will bear their own costs with respect to the preparation and negotiating of this

Agreement. The Club will be liable to pay (and will pay upon receiving a written demand) all of the

Council legal costs in the event that it defaults under any of the covenants which it is to perform and

or the terms and conditions of this Agreement.

12. NOTICES

Any notice required to be delivered shall be delivered by hand within 24 hours and a copy mailed

to the relevant party's address as hereinbefore mentioned.

13. INDEMNITY The Club hereby indemnifies Council from and against all actions, claims , demands, losses,

damages, costs and expenses which the Council may become liable for, within, during the

term or after its determination including but not being limited to or arising from:

13.1 Loss, damage or injury from any cause whatsoever to property or persons to the extent

occasioned or contributed to be any act, neglect or default of the Club or any employee,

customer or invitee of or any other person claiming through or under the Club to observe or

perform any of the covenants, terms, conditions and stipulation on the part of the Club

contained in this Agreement whether positive or negative and expressed or implied;

13.2 Loss, damage or injury from any cause whatsoever to property or persons the Premises to

the extend occasioned or contributed to by any act, matter, omission, neglect, breach or

default of or as a result of the creation of some dangerous thing or state of affairs by the

Club or by an employee, customer, invitee or agent or any other person claiming through

or under the Club and whether the existence of such dangerous things or dangerous

state of affairs was ought to have been known to Council or not. Save and except that this

indemnity will not apply to the extent that Council has been negligent and such negligence

has contributed to the loss or damage.

14. RELEASE

The Club agrees and hereby releases to the full extent permitted by law the Council, from all claims

and demands of every kind resulting from any accident, damage or injury occurring within the area

of the car park or as a result for the Club undertaking in fulfilling its obligations pursuant to this

Agreement and the Club expressly agrees that the Council shall have no responsibility or liability

for any loss, damage or injury suffered by the Club (whether to or in respect of the Club

person or property or business). The benefit of this release shall insure solely to the Council

personally and shall not be effective to release any insurer or any of them from any claims defended

by such insurer under any rights of subrogation in any policy of insurance with the Council or any

party as the case may be.


15. NATURE OF RELATIONSHIP The Club and the Council acknowledge that nothing in this Agreement shall be deemed or

construed, to give rise to, or create the relationship between the Council and the Club of master

and servant, agent or principal, partners, employee and employer or joint ventures.

16. OFFSET The Club shall not be entitled to withhold or set off against any monies which it believes is

owing to it by Council against monies which it owes or are believed to owe to Council.

17. INTEREST Where the Club fails to pay any amount which maybe owing to Council on time, then interest at a

rate 2% higher than that prescribed by the Penalty Interest Rates Act (1983) will accrue on the

outstanding amount until it is paid in full.

18. GOODS AND SERVICES TAX 18.1 GST Definitions For the purpose of this Clause 18.1: "GST" means GST within the meaning of the GST Act. "GST Act" means A New Tax System (Goods and Services Tax Act 1999) (as amended). Expressions are set out in italics in this clause bear the same meaning as those expressions in the GST Act.

18.2 Amounts otherwise payable do not include GST Except where the expressed provision is made to the contrary, and subject to this Clause 18.1,

the consideration payable by any party under this Agreement represents the value of the

taxable supply for which payment is to be made.

18.3 Liability to pay any GST Subject to Clause 18.5 if a party makes a taxable supply in connections with this Agreement for a

consideration, which, under Clause 18.2 or 18.4 represents it values then the party liable to pay

for the taxable supply must also pay, at the same time and in the same manner as the value

is otherwise payable, the amount of any GST payable in respect of the taxable supply.


18.4 Reimbursements

If this Agreement requires the Council to pay, reimburse or contribute to any amount paid or

payable by the Club in respect of an acquisition from a third party for which the Club are entitled to

claim an input tax credit, the amount required to be paid, reimbursed or contributed by the

Council will be the value of the acquisition by the Club plus, if the Club's recovery from the

Council is a taxable supply, any GST payable under Clause 18.3.

18.5 Tax Invoice

A party's right to payment under Clause 18.3 is subject to valid tax invoice being delivered to the

party liable to pay for the taxable supply.

19. SEVERENCE

If any part of this Agreement becomes void or unenforceable or is illegal then that part shall be

severed from this Agreement to the intent that all parts which are not void, unenforceable or illegal

shall remain in full force and effect and be unaffected by the severance.


EXECUTED ON BEHALF OF WARRNAMBOOL CITY COUNCIL BY:

Full name: ……………………………………………………. Title: …………………………………………………………….. Signature: ………………………………………………………

Witness: ……………………………………………………

THE COMMON SEAL of WARRNAMBOOL

RACING CLUB INCORPORATED was

hereunto affixed in the presence of:

· ...........................................

Chief Executive Officer

Peter Downs

…………………………………………… Chairman

Nick Rule

In the presence of:

Witness Witness ………………………………. ……………………………….


SCHEDULE 1

Item 1

Date of making agreement: ltem2 The Council: Item 3 The Club: Item 4 Commencement Date: Item 5 Period: Item 6 The Contract Amount:

TBC 2018 WARRNAMBOOL CITY COUNCIL

of 25 Liebig Street, Warrnambool 3280 WARRNAMBOOL RACING CLUB INCORPORATED

of 2- 64 Grafton Road, Warrnambool 3280

TBC 2018 2 years subject to continuing ministerial approval Shall be

$3.00 per horse to exercise on the beach. This amount will be automatically increased annually by CPI. Pursuant to clause 2.3 of this agreement

as varied from time to time.


SCHEDULE 2 • PROPOSED AREAS 2018

This plan is referenced in the Belfast Reserve Coastal Management Plan. Note this agreement only relates to the section of the reserve that Council has jurisdiction over.



Indicative Signage


APPENDIX D AMENDED

WARRNAMBOOL CITY COUNCIL

AND

WARRNAMBOOL RACING CLUB

FOR

LADY BAY FORESHORE

COMMENCEMENT DATE: ____ / ____ / ____


AGREEMENT

THIS AGREEMENT is made on the specified in Item 1 if the Schedule 1 between the party

referred to in Item 2 of the Schedule 1

("the Council")

AND

The party referred to in Item 3 of the Schedule:

("the Club")

RECITALS:

A. Council is the Committee of Management pursuant to the Crown Land (Reserve) Act

1978 and as Committee of Management has the care, protection and management of lands

reserved for public purposes within the City of Warrnambool which comprises the

foreshore of Lady Bay and other land.

B. Pursuant to regulations published in the Victorian Government Gazette number 110-11 November 1981, regulation 36 states that no person shall ride, drive or lead or allow to roam any horse or other animal upon any part of the reserve, except with permission in writing at such times and in such areas as the Committee may specify from time to time.

C. Council as the Committee of Management has granted permission, for horse owners and

trainers (subject to permits being issued) to permit the holders of permits to access

and use, for the purposes of exercising horses, the area of the foreshore delineated by a

red line commencing at McGennans car park and terminating at the boat exit near the

Pavilion Cafe and a further area shown as a blue rectangle for the purposes of allowing

horses to swim in accordance with the permits and this agreement such areas being

delineated on the map being annexed to schedule 2 hereof (collectively called "the area").

D. Council and the Club have had discussions whereby the Club would oversee the use of the

area in accordance with the terms and conditions of this Agreement and the permits.

IT IS AGREED AS FOLLOWS:

1. TERM

1.1This Agreement shall commence on the date specified in Item 4 of Schedule 1 ("the

Commencement Date") and shall continue to clause 5, for the period set out in Item 5

of the Schedule ("the period") subject to the provisions of the agreement.


2. CONTRACT AMOUNT

2.1 The Club shall pay to Council a fee ("the Contract Amount") referred to in Item 6 of the

Schedule1. The Contract Amount shall be paid by monthly instalments in arrears on the

1st day of each month.

2.2 If the term of the period is greater than one year, then the Contract Amount will be

reviewed on the anniversary of the commencement date throughout the period.

Council and the Club shall meet three months prior to the anniversary of the

commencement date to reach agreement of the new Contract Amount. In reaching the

new Contract Amount, Council and the Club will negotiate in good faith. In the event that

Council and the Club cannot reach agreement as to the new Contract Amount, then the

new Contract Amount will determined by Council. The new Contract Amount will become

the Contract Amount for the purpose of this Agreement.

2.3 At the commencement date of this agreement Council and the Club shall set a fee, on a

per horse basis, to be charged to the Club for providing access to trainers using the area.

If the fee remains unchanged, it will automatically be increased annually by CPI.

3. THE CLUB'COVENANTS

The Club covenants and agrees to:

3.1 At its own cost, employ a suitably qualified person or persons who will attend the area

Monday to Friday, whenever horses are trained on the beach and be present at all times,

just prior to dawn (as established by the Bureau of Meteorology website) and 10.15am

to ensure compliance and collect access data within the terms of the permit issued by

Council and this Agreement by persons using the area. Saturday & Sunday access data to

be provided to WRC by the individual trainers.

3.2 Pay all wages, group tax, superannuation, guarantee levy obligations, payroll tax, workers

compensation insurance and all other payments required by law to be made and which

may become due with respect to the employment of any staff by the Club.

3.3 At all times properly insure and keep insured with a reputable insurer every worker

employed by the Club who should be insured by it under the provisions of the relevant act

dealing with workers compensation insurance and to comply with the provisions and

regulations of that act.

3.4 Comply with and ensure that its employees comply with all lawful instructions of the

Council and perform all of the covenants and duties contained in this Agreement diligently,

honestly and to the best of their abilities and ensure that its employees also diligently,

honestly and to the best of their abilities undertake the Club's obligations (as are applicable

to the employees).

3.5 Ensure that at all times to the best of its ability maintain a co-operative manner and attitude

with and towards the Council and the Councils employees and ensure that its employees

also maintain a co-operative manner and attitude with and towards the Council and the

Councils employees.

3.6 Keep such proper books and records as the Council from time to time may require and

shall when required by the Council deliver to it full and correct accounts and receipts,

payments, transactions and dealings by them of and in relation to the terms or duties to

be carried out pursuant by it to this Agreement. The said books and records shall be open

for inspection by the Council, their auditors or accountants at all times. The Club shall

also supply such information as the Council, their auditors or accountants may from time

to time require.


3.7 If requested by Council, to meet with Council at a suitable time to be arranged to discuss

any areas or matters which may require attention.

3.8 Comply with all laws including but not being limited to laws pertaining to occupational

health and safety and any local laws or regulations. The Club and its employee shall also

ensure that persons using the area and the car park shall also comply with all laws including

but not limited to occupational health and safety laws and any local laws or regulations.

3.9 Advise Council, verbally initially and then in writing of any breach of the Agreement

and or any of the terms of the permits immediately upon it becoming aware of the breach.

In the case of a breach of the terms of the permit, the Club will supply to Council, the name

and address of the person breaching the terms of the permit and the nature of the breach.

Further, if required by Council, the Club or its employee, shall provide any evidence

required by Council to assist Council in prosecuting the breach including but not being

limited to providing a statutory declaration.

3.10 Ensure that the terms of the permits issued are being adhered to at all times. 3.11 Ensure that the welfare of the horses using the area are of paramount importance and

that the persons using the area adhere with the Code of Practice for the Welfare of Horses

as revised from time to time.

3.12 Ensure that horse exercising can only take place from the 1st April until the 1st

December in any calendar year. On any one day, that the maximum number of horses

using the area is restricted to 50 horses which can use the area for exercising and

swimming and 116 horses using the area for swimming only. In busy periods such as the

May Racing Carnival, advise Council if numbers are potentially exceeded and what

numbers are anticipated.

3.13 Collect and record details of horses using the area as well as details of the trainer, the

number of vehicles of each trainer in the main car park and shall supply such information

to Council if requested. The Club shall ensure that any person using the area has been

issued with a permit and that the permit is still current and valid.

3.14 Undertake and supervise a roster of persons who are to use the area on a daily basis.

The Club acknowledgers that not all of the horses using the area will be race horses and

the Club will make appropriate arrangements with owners and trainers of non-race horses

for the use of the area.


4. COUNCILS RESPONSIBILITIES The Council shall be responsible for:

4.1 Issuing permits to persons to use the area. Council will be responsible for establishing the

terms and conditions contained in the permits and can alter the terms and conditions of the

permits from time to time.

4.2 Providing a full list of permit holders to the Club as well as the terms and conditions

attached to the permits.

4.3 Advising the Club if a permit has been suspended, cancelled or varied.

5. TERMINATION

This Agreement may be terminated by:

5.1 Immediately and without notice upon the happening of one or more of the following events

("the Determining Events"):

5.1.1 If the Club defaults in the performance of any covenant, undertaking or agreement

on its part to be performed under this Agreement and fails to remedy the default within

three days of receiving a notice of default;

5.1.2 If the Club is wound up, has a receiver, a receiver and manager or an administrator

appointed or is placed under official management, or enters into any scheme of

arrangement or any resolution it is proposed which would if passed in it being would

up voluntarily or otherwise;

6. NOT TO INVALIDATE INSURANCE

The Club, their employees, invitees or agents shall not do or permit anything to be done in or on

the area of the car parks whereby any policy or policies of insurance taken out by the Council

may become void or voidable or whereby the premiums thereon may be increased. The Club

shall pay to the Council all sums paid by way of increased premiums and all expenses incurred

by the Council in or incidental to any policy or policies which are void or voidable together with

any loss sustained by the Council occasioned by any breach of this covenant.

7. ASSIGNMENT

This Agreement is personal to the Council and to the Club and is not assignable.

8. COMPLY WITH STATUTES

The Club shall comply with all statutes, legislations, local laws and regulations.

9. DUTIES OF THE PARTIES

Each of the parties shall be just and faithful to the other and offer every assistance in their power

in carrying out the terms of this Agreement.


10. DISPUTES

All disputes, differences and questions whatsoever which may arise between the parties as to the construction of this Agreement or as to any matter or thing connected with or arising out of this Agreement shall be initially determined by the parties meeting in an attempt to resolve any dispute and failing the dispute being resolved within seven days of that meeting then the dispute, question or other matter shall be referred to a single arbitrator appointed under the provisions of the relevant Act dealing with commercial arbitration in the relevant State where the business is located.

11. LEGAL COSTS

Each party will bear their own costs with respect to the preparation and negotiating of this Agreement. The Club will be liable to pay (and will pay upon receiving a written demand) all of the Council legal costs in the event that it defaults under any of the covenants which it is to perform and or the terms and conditions of this Agreement.

12. NOTICES

Any notice required to be delivered shall be delivered by hand within 24 hours and a copy mailed to the relevant party's address as hereinbefore mentioned.

13. INDEMNITY

The Club hereby indemnifies Council from and against all actions, claims , demands, losses, damages, costs and expenses which the Council may become liable for, within, during the term or after its determination including but not being limited to or

arising from:

13.1 Loss, damage or injury from any cause whatsoever to property or persons to the extent occasioned or contributed to be any act, neglect or default of the Club or any employee, customer or invitee of or any other person claiming through or under the Club to observe or perform any of the covenants, terms, conditions and stipulation on the part of the Club contained in this Agreement whether positive or negative and expressed or implied;

13.2 Loss, damage or injury from any cause whatsoever to property or persons the Premises to the extend occasioned or contributed to by any act, matter, omission, neglect, breach or default of or as a result of the creation of some dangerous thing or state of affairs by the Club or by an employee, customer, invitee or agent or any other person claiming through or under the Club and whether the existence of such dangerous things or dangerous state of affairs was ought to have been known to Council or not. Save and except that this indemnity will not apply to the extent that Council has been negligent and such negligence has contributed to the loss or damage.

14. RELEASE

The Club agrees and hereby releases to the full extent permitted by law the Council, from all claims and demands of every kind resulting from any accident, damage or injury occurring within the area of the car park or as a result for the Club undertaking in fulfilling its obligations pursuant to this Agreement and the Club expressly agrees that the Council shall have no responsibility or liability for any loss, damage or injury suffered by the Club (whether to or in respect of the Club person or property or business). The benefit of this release shall insure solely to the Council personally and shall not be effective to release any insurer or any of them from any claims defended by such insurer under any rights of subrogation in any policy of insurance with the Council or any party as the case may be.


15. NATURE OF RELATIONSHIP

The Club and the Council acknowledge that nothing in this Agreement shall be deemed

or construed, to give rise to, or create the relationship between the Council and the Club of

master and servant, agent or principal, partners, employee and employer or joint ventures.

16. OFFSET

The Club shall not be entitled to withhold or set off against any monies which it believes

is owing to it by Council against monies which it owes or are believed to owe to Council.

17. INTEREST

Where the Club fails to pay any amount which maybe owing to Council on time, then interest

at a rate 2% higher than that prescribed by the Penalty Interest Rates Act (1983), will accrue

on the outstanding amount until it is paid in full.

18. GOODS AND SERVICES TAX

18.1 GST Definitions For the purpose of this Clause 18.1:

"GST" means GST within the meaning of the GST Act. "GST Act" means A New Tax System (Goods and Services Tax Act 1999) (as amended).

Expressions are set out in italics in this clause bear the same meaning as those expressions

in the GST Act.

18.2 Amounts otherwise payable do not include GST

Except where the expressed provision is made to the contrary, and subject to this Clause

18.1, the consideration payable by any party under this Agreement represents the

value of the taxable supply for which payment is to be made.

18.3 Liability to pay any GST

Subject to Clause 18.5 if a party makes a taxable supply in connections with this

Agreement for a consideration, which, under Clause 18.2 or 18.4 represents it values

then the party liable to pay for the taxable supply must also pay, at the same time and

in the same manner as the value is otherwise payable, the amount of any GST payable

in respect of the taxable supply.

18.4 Reimbursements

If this Agreement requires the Council to pay, reimburse or contribute to any amount

paid or payable by the Club in respect of an acquisition from a third party for which the Club

are entitled to claim an input tax credit, the amount required to be paid, reimbursed or

contributed by the Council will be the value of the acquisition by the Club plus, if the

Club's recovery from the Council is a taxable supply, any GST payable under Clause 18.3.


18.5 Tax Invoice

A party's right to payment under Clause 18.3 is subject to valid tax invoice being delivered

to the party liable to pay for the taxable supply.

19. SEVERENCE

If any part of this Agreement becomes void or unenforceable or is illegal then that part shall be

severed from this Agreement to the intent that all parts which are not void, unenforceable or

illegal shall remain in full force and effect and be unaffected by the severance.


EXECUTED ON BEHALF OF WARRNAMBOOL CITY COUNCIL BY:

Full name

Title

Signature

Witness ……………………………………………………………………………………………….

THE COMMON SEAL of WARRNAMBOOL

RACING CLUB INCORPORATED was

hereunto affixed in the presence of:

·

………………………………… Chief Executive Officer

Peter Downs

…………………………………… Chairman

Nick Rule

In the presence of:

Witness Witness

………………………………… ……………………………………


SCHEDULE 1

Item 1

Date of making agreement:

ltem2

The Council:

Item 3

The Club:

Item 4

Commencement Date:

Item 5 Period:

Item 6

The Contract Amount:

xxxxxxxxxxxx 2018 WARRNAMBOOL CITY COUNCIL

of 25 Liebig Street, Warrnambool 3280 WARRNAMBOOL RACING CLUB INCORPORATED

of 2- 64 Grafton Road, Warrnambool 3280

xxxxxxxxxxxxxxx 2018 10 years Shall be

$3.00 per horse to exercise on the beach And $1.50 per horse to swim only Pursuant to clause 2.3 of this agreement

as varied from time to time or increased

annually by CPI


SCHEDULE 2 • PROPOSED AREAS 2018


5. CLOSE OF MEETING

The meeting closed at 6.55pm.

CHAIRMAN

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