Policy Name=Establishment of Sporting Club and Community Group Leases

Governance Policy

File NO: CORP_GOV=AS.LE or REC05

Policy Name=Establishment of Sporting Club and Community Group Leases

Policy Purpose:

• To ensure that all community groups and sporting clubs are operating under a formal agreement with the Shire of Ashburton while occupying Shire facilities.
• To outline the process to be used when establishing Leases or User Agreements for sporting clubs and community groups, to ensure a standard, equitable and consistent approach is adopted that is appropriate to this region.

Principles/Framework Application:

Sporting club and community group Leases should be prepared in the manner outlined below for all new Leases. If this arrangement is beneficial to an existing lessee, a new Lease may be established. Any club occupying Council property, not covered by a Lease, needs to have a User Agreement or Licence, prepared in the manner outlined below.

LEASE

For any Group which has sole occupancy rights over Council Property – based on the standard lease document developed by Freehill, Hollingdale and Page

For a licensed venue only

• The Lessor is to insure any buildings or structures on the property which belong to the Lessor, but will recover the insurance premiums from the Lessee.
• For any insurance claim made the Lessee will be required to pay 100% of the excess. The Lessee will be able to request assistance from Council to cover these costs in times of economic hardship. Cyclone, Wind, Rainwater and Flood (as defined by Council’s current insurance policy) are excluded as Council will meet the excess involved with these incidents.

For a non licensed venue only

• The Lessor is to insure any buildings or structures on the property which belong to the Lessor, and will not recover the insurance premiums from the Lessee,
• Council reserves the right to claim reimbursement of excess insurance costs should the lessee be in breach of their agreement.

For both licensed and non licensed venues

• Lessee is responsible for all outgoings including water, drainage, sewerage, electricity and rubbish collection.

• The Lessee is responsible for maintenance and cleaning of the premises
• The Lessee is required to insure all building structures, fixtures, fittings and contents belonging to the Lessee on the land.
• The Lessee is not required to pay rates.
• GST will apply to all leases.
• The Lease contains a redevelopment clause (see Clause 37) which allows the Lessor to terminate the Lease by giving not less than 6 months notice to the Lessee if the Lessor wishes to redevelop the premises.
• The Lessee may not assign or sublet the premises without the Lessor’s consent
• All community or sporting groups operating under a Lease will need to provide evidence of current public liability insurance to a minimum value of $10,000,000, Higher insurance may be required in sme circumstances
• Rent review shall be conducted 1 July each year as outlined in Clause 6.3 of the Lease agreement
• The term of the Lease shall be for up to five years, with an option for up to a further five years.
• Provision of special conditions to apply to individual Leases is to be inserted in Item 15 of the Schedule.
• A copy of the Lessee’s constitution must be provided to the Shire of Ashburton and the Committee must be able to prove, at all times when requested by Council, that it is acting constitutionally.

USER/LICENCE AGREEMENTS

All continuous users of Shire facilities not under a Lease need to have a User Agreement or Licence Agreement. This includes oval users, any groups that store equipment in Shire operated buildings between uses and any group that has shared use of a Shire facility.

• User Groups who have independent access to the room/s they utilise within a larger community use building will be charged $300 annually.
• All facilities with air conditioning or sports lighting will have it metered and the User will be charged for its use
• Community Groups and Sporting Clubs will not incur additional fees for rooms used solely for storage. The hire fee for the Oval or Hall they are using will be the only charge and they will be required to sign a User Agreement or Licence Agreement.
• The User is required to insure all fixtures, fittings and contents belonging to the User on the land
• The term of the User /Licence Agreement shall be for up to five years, with an option for up to a further five years.
• All User/Licence Agreements will contain a recommendation for the User to obtain public liability insurance to a minimum value of $10,000,000. Higher insurance may be required in some circumstances.
• All users must obtain a Liquor permit to consume alcohol in the facility, as it will remain the property of the Shire of Ashburton.
• Maintenance of the facility is the responsibility of the Shire of Ashburton – however any damage deemed to be caused by negligence on behalf of the user group will be charged to the user group

• All facilities under management agreements need to be accessible via the Shire of Ashburton’s key system. Authorised staff should be allowed access to these facilities provided adequate notice is given to the User.

• Cleaning of the part of the facility occupied by the user group is the User’s responsibility

All newly established Leases, Licence Agreements and User Agreements are to be approved by Council prior to signing the final documentation.

Once formalised, the annual amount is to be included in the list of Standing Invoices produced by the Shire of Ashburton’s Finance Division and a copy of the agreement is to be kept on file.

Any sporting clubs or community groups unable to meet the demands of this policy will be able to apply to the Executive Manager Community Development for a Donation to Sporting and Community Groups as assistance towards these costs. This request must be supported by documentation proving the sporting club or community group’s financial hardship. Any contribution above $500 needs to be considered by Council.

Statutory Environment=

Minute Number=12.07.1045

Approval Date=Adopted 14 November 2000

______

SignedShire President

Monitor and Review =

Last Review Date=Amended 15 February 2012

Next Review Date=

This policy is to remain in force until otherwise determined by the Council or superseded.

Draft

Date 04/05/99

Lease

Shire of Ashburton

and

Lessee

BARRISTERS & SOLICITORS

AMP Building 140 St Georges Terrace
Perth 6000 Western Australia
Telephone (08) 9211 7777 Int + (61 8) 9211 7777 Facsimile (08) 9211 7878
DX 104 Perth
Reference: KAF:DRS

PERTH SYDNEY MELBOURNE CANBERRA BRISBANE SINGAPORE HANOI HO CHIMINHCITY

CORRESPONDENT OFFICE IN JAKARTA

Table of contents

ClausePage

1 Definitions10

2 Grant of lease12

3 Quiet enjoyment12

4 Easements12

4.1 Purposes for which Lessor may act12

4.2 Rights of Lessor in respect of easements12

4.3 Easements may not substantially derogate from Lessee's Rights13

5 Rent13

6 Rent review13

6.1 Definitions13

6.2 Determination of Current or Previous CPI14

6.3 Rent Review14

6.4 Rent review notice14

6.5 Nominated Rent Payable from Rent Review Date15

7 Not to cause rent reduction15

8 Outgoings15

9 Costs and expenses16

9.1 Payment of costs16

9.2 Payment of duty and fees16

10 Interest on overdue money16

11 Goods and Services Tax16

11.1 Definitions16

11.2 Lessee must pay GST16

11.3 Lessee must pay GST at same time16

11.4 Prices do not include GST17

11.5 Apportionment of GST17

11.6 Statement of GST paid is conclusive17

12 Lessor to maintain structure17

13 Lessee to maintain premises17

13.1 General17

13.2 Carpets17

13.3 Repair or replace if necessary18

13.4 Paint and decorate18

13.5 Free from rubbish18

13.6 Pest control18

13.7 Facilities18

13.8 Service of airconditioning plant18

13.9 Maintain Land19

14 Alterations19

14.1 Restriction on alterations19

14.2 Consent to alterations19

14.3 Other work necessitated by alteration19

14.4 Asbestos and other harmful substances20

15 Use of the premises20

15.1 Purpose20

15.2 No warranty as to use20

15.3 Premises subject to restrictions20

15.4 Consent of authority needed20

16 Floor overloading20

17 Chemicals and inflammable substances20

18 Miscellaneous restrictions on use21

18.1 Infectious diseases21

18.2 Advertisements or notices21

19 Entry by lessor21

19.1 General21

19.2 Inspect state of repair21

19.3 Comply with authorities21

19.4 Maintenance, modifications or extensions21

19.5 Plant and Equipment22

19.6 Interested persons22

19.7 Affix notices22

20 Unauthorised purpose22

21 Plant and equipment22

22 Electrical circuits22

22.1 Not overload22

22.2 Consent to install equipment22

23 Insurance23

23.1 Public liability insurance23

23.2 Insurance of Lessee's Fixtures23

23.3 Workers' compensation insurance23

23.4 Glass23

23.5 Supply details etc.23

23.6 Not to invalidate insurance24

24 Lessee's indemnities24

24.1 Indemnities paramount24

24.2 Indemnity in respect of Lessor's expenses24

24.3 Lessee responsible as if owner24

24.4 General indemnity24

24.5 Limit of Lessee's obligations25

25 Lessee's obligations at risk and expense of lessee25

26 Limit of lessor's liability25

26.1 Lessor not liable for failure to perform and observe Lessor's Covenants25

26.2 Lessor not liable for loss, damage or injury25

26.3 Lessor liable while registered proprietor25

27 Report to lessor25

27.1 Damage to or defect in Premises26

27.2 Broken glass26

27.3 Malfunction of Plant and Equipment or Facility26

27.4 Circumstance likely to cause damage or danger26

28 Caveats26

28.1 Not lodge absolute caveat26

28.2 Withdraw caveat on Termination26

28.3 Appointment of Lessor as attorney to withdraw any caveat26

29 Not impede exercise of lessor's rights27

30 Compliance with statutes27

31 Default by lessee27

31.1 Events of default27

31.2 Lessor may retake possession28

31.3 Acceptance of Money Payable not to prejudice Lessor's Rights28

31.4 Lessor may remedy Lessee's default28

31.5 Exercise of Lessor's Rights29

31.6 Essential terms29

31.7 Damages for breach of essential terms29

31.8 Certificate to be conclusive30

31.9 Separate suits30

32 Destruction or damage to premises30

32.1 Major rebuilding required30

32.2 Abatement of Rent31

32.3 Lessee may Terminate31

33 Option to renew31

34 Holding over32

35 Termination32

35.1 Restoration of the Premises on Termination32

35.2 Yield up and surrender keys32

35.3 Removal of Lessee's Fixtures32

36 Lessee's fixtures not removed at termination32

36.1 Lessor may remove32

36.2 Lessee to indemnify33

36.3 Property may be sold33

36.4 Lessee to pay damages33

37 Assigning and charging33

37.1 No assignment without consent33

37.2 Exclusion of the Property Law Act33

37.3 Changes in beneficial ownership of shares33

37.4 Directors or shareholders must guarantee33

37.5 Covenants of assignee supplementary34

38 Redevelopment34

39 Act by agents34

40 Lessee liable for permitted persons34

41 Notice34

41.1 Definition34

41.2 Form and Service34

41.3 Conclusive evidence36

42 Proper law36

43 Accrual on daily basis36

44 Statutory powers36

45 Moratorium not to apply36

46 Severance36

47 Waivers37

47.1 Failure or delay is not waiver37

47.2 Partial exercise does not preclude further exercise37

48 Variation37

49 Further assurances37

50 Counterparts37

51 Payment of money37

52 Interpretation37

52.1 Headings37

52.2 Last day not a Business Day37

52.3 Joint and several covenants37

52.4 Reference to a Party38

52.5 Reference to other document38

52.6 Reference to a statute38

52.7 Singular, plural and gender38

52.8 Reference to a person and a body corporate38

52.9 Professional body38

52.10 Month38

52.11 Lessee's Covenants38

53 Land Administration Act38

54 Special Conditions39

Schedule40

This Lease

is made on between the following parties:

1.Shire of Ashburton
a body corporate pursuant to the Local Government Act 1995
of PO Box 665, Tom Price, Western Australia
(Lessor)

2.[insert name of party]
[insert ACN/ARBN]
of [insert address]
(Lessee)

The Parties agree:

Definitions

Unless otherwise required by the context or subject matter:

Address means the address specified in Item 8 of the Schedule or any other address which the Lessor by notice to the Lessee nominates;

Business Day means a day other than a Saturday, Sunday or public holiday in Western Australia;

Costs and Expenses means the costs and expenses mentioned in clause 9;

Date of Commencement means the date specified in Item 4 of the Schedule;

Document means this deed as supplemented, amended or varied from time to time;

Encumbrance means a mortgage, charge, bill of sale, lien, pledge, easement, restrictive covenant, writ, warrant or caveat and the claim stated in that caveat affecting the Land or the Premises;

Event of Default means an event specified in clause 31.1;

Facility means a lavatory, sink, drain or other sewerage or plumbing facility, and a gas or electrical fitting or appliance in or on the Premises;

Further Term means each further term specified in Item 5 of the Schedule;

Holding Over means holding over by the Lessee under clause 36;

Insured Risk means an event against which the Lessor insures including, but not limited to, fire, explosion, earthquake, aircraft, riot, civil commotion, lightning, storm, tempest, act of God, fusion, smoke, rainwater, water leakage, impact by vehicles, machinery breakdown and malicious acts or omissions;

Interest means interest at the rate specified in Item 10 of the Schedule;

Land means the land described in Item 2 of the Schedule;

Legal Fees means all amounts which are payable or have been paid by the Lessor to the Lessor's solicitor calculated on whichever of the following bases costs are determined as between the Lessor and the Lessor's solicitor:

(a)as stated in a written agreement between the Lessor and the Lessor's solicitor; or

(b)the maximum permitted scale for the work involved;

Lessee's Covenants means the covenants, agreements and obligations contained or implied in this Document or imposed by law to be observed and performed by the Lessee;

Lessee's Fixture means each structure, building or fixture installed in or on the Premises by the Lessee or a previous occupier of the Premises or any part of the Premises;

Lessee's Rights means all rights in favour of the Lessee contained or implied in this Document;

Lessor's Covenants means the covenants, agreements and obligations contained or implied in this Document or imposed by law to be observed and performed by the Lessor;

Lessor's Fixtures includes:

(a)floor or window coverings;

(b)partitioning;

(c)light fittings; and

(d)any other fixture or fitting;

installed by the Lessor in the Premises and any replacement of any item mentioned in this definition;

Lessor's Rights means all rights in favour of the Lessor contained or implied in this Document or granted by law;

Losses includes claims, demands, losses, damages, Costs and Expenses;

Managing Agent means the firm specified in Item 9 of the Schedule or any person, firm or corporation as the Lessor by notice to the Lessee nominates;

Money Payable means the Rent and any other money payable by the Lessee under this Document;

Outgoings means the outgoings payable by the Lessee under clause 8;

Painting and Decorating Intervals means the intervals specified in Item 11 of the Schedule;

Party means the Lessor or the Lessee according to the context;

Permitted Person means:

(a)an agent, employee, licensee, or invitee of the Lessee; and

(b)any person visiting the Premises with the express or implied consent of any person mentioned in paragraph (a);

Permitted Use means the use specified in Item 13 of the Schedule;

Plant and Equipment means any plant and equipment in or on the Premises including, but not limited to, plant and equipment for or in connection with any:

(a)Service; or

(b)heating, cooling, lighting, power or plumbing;

Premises means the Land and all structures and improvements on the Land as specified in Item 1 of the Schedule;

Public Liability Insurance Amount means the amount specified in Item 12 of the Schedule;

Rent means the rent specified in Item 6 of the Schedule as varied from time to time under this Document;

Schedule means the schedule to this Document;

Service means electricity, gas, oil, fuel, water or other like service;

Special Conditions means each special condition specified in Item 15of the Schedule;

Term means the term specified in Item 3 of the Schedule and any Further Term;

Termination means the expiry or earlier determination of the Term or any period of Holding Over; and

Unfit for Occupation means that the Premises or any part of the Premises are so destroyed or damaged as to:

(a)render the Premises substantially unfit for occupation and use; or

(b)interfere substantially with the Lessee's Rights.

Grant of lease

The Lessor:

LEASES the Premises; and

GRANTS the Lessee's Rights;

to the Lessee subject to all Encumbrances for the term specified in Item 3 of the Schedule and subject to:

the payment of the Money Payable; and

the observance and performance of the Lessee's Covenants;

but RESERVING to the Lessor the Lessor's Rights.

Quiet enjoyment

Except as provided in this Lease and subject to the observance and performance of the Lessee's Covenants, the Lessee may quietly hold the Premises and enjoy the Lessee's Rights during the Term without any interruption or disturbance from the Lessor or any person lawfully claiming through or under the Lessor.

Easements

Purposes for which Lessor may act

The Lessor may for the purpose of providing:

a public or private entrance to or exit from;

a support for a structure erected on;

the supply of a Service, a Facility, or telephone or electronic communication to; or

any other right, privilege or facility for;

the Premises, the Land or any other land, do any of the things specified in clause 4.2.

Rights of Lessor in respect of easements

The Lessor may for the purposes detailed in clause 4.1 and subject to clause 4.3;

grant rights of support to or enter into any arrangement or agreement with:

any owner, lessee, tenant, occupier, or other person, interested in land adjacent to or near to the Premises; or

any public authority;

dedicate or transfer any part of the Land; or

grant or create any easement or privilege in favour of any person or public authority over or affecting the Premises, the Land or the Premises.

Easements may not substantially derogate from Lessee's Rights

The Lessor may not without the Lessee's consent, which consent may not be unreasonably withheld, dedicate, transfer, grant or create any easement, right or privilege which substantially and permanently derogates from the Lessee's Rights.

Rent

The Lessee must pay to the Lessor the Rent without deduction or set off including but not limited to equitable setoff at the times and in the manner specified in Item 6 of the Schedule during the Term except that the first and last payments will be apportioned on a daily basis if they are for periods of less than a month.

Rent review

Definitions

In this clause:

Consumer Price Index means the index published by the Australian Bureau of Statistics as the Consumer Price Index for Perth for all groups or if that index is suspended or discontinued, the index substituted for it by the Australian Statistician;

Current CPI means for a Rent Review Date:

the Consumer Price Index number last published prior to that Rent Review Date; or

if the Lessor appoints an actuary to determine an index under clause 6.2, the number certified by that actuary;

Previous CPI means for a Rent Review Date:

(a)the Consumer Price Index number last published before:

(1)the immediately preceding Rent Review Date; or

(2)if there is no preceding Rent Review Date, the date of commencement of the Term; or

(b)if an actuary is appointed by the Lessor under clause 6.2, the number certified by that actuary;

Rent Notice means a notice given by the Lessor to the Lessee under clause 6.3; and

Rent Review Date means each date specified in Item 7 of the Schedule.

Determination of Current or Previous CPI

If:

in determining the Current CPI:

the Consumer Price Index number is not published; or

in the opinion of the Lessor there is a material change in the basis of assessment of the Consumer Price Index; or

in determining the Previous CPI, no Consumer Price Index number was published within a period of FOUR (4) months prior to:

the immediately preceding Rent Review Date; or

if there is no preceding Rent Review Date, the date of commencement of the Term;

theLessor may appoint an actuary from the Fellows of the Institute of Actuaries of Australia to determine: