Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 3]
THIS AGREEMENT under seal made the Second day of September One thousand nine
hundred and sixty BETWEEN THE HONOURABLE DAVID BRAND M.L.A. Premier and
Treasurer of the State of Western Australia acting for and on behalf of the
said State and its Instrumentalities (hereinafter referred to as “the
State”) of the first part THE CITY OF PERTH a body corporate by that
name pursuant to the provisions of the City of Perth Act 1914 having its
office situate at 207 Murray Street Perth in the State of Western Australia
(hereinafter with its successors referred to as “the Council”) of
the second part CHEVRON-HILTON HOTELS LIMITED a company duly incorporated
under the provisions of the Companies Acts of Victoria having its registered
office in the State of Victoria at 34 Queens Road Melbourne and its registered
office in the State of Western Australia at 20 Howard Street Perth
(hereinafter with its successors and permitted assigns referred to as
“the Company”) of the third part AND THE STATE GOVERNMENT
INSURANCE OFFICE a body corporate pursuant to the provisions of the State
Government Insurance Office Act 1938-1958 having its principal place of
business at 184 Saint George’s Terrace Perth in the State of Western
Australia of the fourth part.
WHEREAS subject to the provisions of this
Agreement —
A. The Company with a
view to the erection of an hotel and tourist centre as hereinafter provided
has agreed —
(1) to purchase from
the Council which has agreed to sell so much of certain land which the Council
has separately agreed to purchase from the Trustees of The Christian Brothers
of Strathfield in the State of New South Wales (hereinafter referred to as
“the said Trustees”) as is not required by the Council for
street-widening purposes;
(2) to purchase
certain adjoining Crown land now vested in The State Government Insurance
Office which that Office with the consent of the State has agreed to sell
conditionally upon the erection of the said hotel and tourist centre
(hereinafter referred to as “the hotel building”); and
(3) to sell to the
Council so much of the said Crown land as is required by the Council for
street-widening purposes.
B. The Council in
furtherance of its proposed town planning scheme for an area south of Saint
George’s Terrace between Barrack Street and Victoria Avenue in the City
of Perth desires for street-widening purposes to make early purchases of
certain strips of land and to make purchases at some future time of certain
other strips of land in the said area.
C. The Council for the
purpose of enabling the said Trustees to erect a new college for boys in
substitution for the existing college erected on land first referred to in
Recital “A” hereof has agreed to acquire with a view to selling to
the said Trustees certain Crown land (part whereof is to be reclaimed) which
now includes portion of a gazetted road in respect of one-half of which
easements are required for public purposes.
D.
The State and the Council have agreed that the
Council will surrender and transfer certain lands required for education and
water supply purposes respectively and will establish a car park on certain
other land.
NOW THIS AGREEMENT WITNESSETH:
1. (1)
THIS Agreement is made subject to approval and ratification by
The Parliament of Western Australia expressed in an Act to be passed by both
House’s of the Parliament before the twelfth day of October 1960 or
before such later date as the State the Council and the Company may mutually
agree upon and to provide that it shall not come into operation unless and
until a proclamation is made by the Governor and published in the Government
Gazette .
(2) THE proclamation
shall be made and published as soon as conveniently may be after the payment
of the deposit referred to in clause 6 hereof within the period therein
mentioned or within such extended period not exceeding twenty-eight (28) days
as the State may allow and upon such publication this Agreement shall have
effect and shall be deemed substituted for an agreement made the twelfth day
of May 1960 between the Company of the one part and The Honourable Arthur
Frederick Watts C.M.G. M.L.A. on behalf of the State of the other part which
latter agreement shall then cease to have effect. If the said Act is not duly
passed as aforesaid or if the said proclamation is not duly made and published
then this Agreement other than this clause shall have no operation or effect
and no party hereto shall have any claim against any one or more of the other
parties hereto with respect to any act matter or thing in or arising out of
this Agreement other than this clause BUT the State and the Company shall
enter into a new agreement as contemplated in the said agreement dated the
twelfth day of May 1960 subject to the approval thereof by The Parliament of
Western Australia before the thirtieth day of November 1960 AND any dispute or
difference between the State and the Company arising out of or in connection
with the provisions to be contained in the said new agreement shall in default
of agreement between those parties be referred to and settled by arbitration
under the provisions of the Arbitration Act 1895 and any amendments
thereof for the time being in force.
(3) IF the said Act is
passed by both Houses of the Parliament within the time or extended time
referred to in subclause (1) of this clause but the deposit referred to
in clause 6 hereof is not paid within the period or extended period
referred to in subclause (2) of this clause then the Council and the said
Trustees may by notice in writing given to the State not earlier than fifty
(50) days nor more than sixty (60) days from the passing as aforesaid of the
said Act request that this Agreement shall operate in relation to all the
provisions thereof except clauses 4 to 16 both inclusive. If such request
is so made a proclamation relating to all the provisions hereof other than
clauses 4 to 16 both inclusive shall be made by the Governor and
published in the Government Gazette whereupon this Agreement other than
clauses 4 to 16 both inclusive hereof shall operate but clauses 4 to
16 both inclusive hereof shall have no operation or effect and no party hereto
shall have any claim against any one or more of the other parties hereto with
respect to any act matter or thing in or arising out of the said
clauses 4 to 16 BUT the State and the Company shall enter into the new
agreement as referred to in subclause (2) of this clause.
2. CLAUSES 3 and 4 of
this Agreement relate to the land described in Schedule “A” hereto
being land now owned by the said Trustees and situate south of and adjoining
Saint George’s Terrace and west of and adjoining Victoria Avenue in the
City of Perth and upon which the said Trustees are at present conducting a
college for boys.
3. THE Council will by
separate agreement with the said Trustees purchase from the said Trustees who
will sell an estate in fee simple free of all encumbrances in the whole of the
land described in Schedule “A” hereto upon terms and conditions
which will include provisions to the effect —
(a) That
the said Trustees will by the thirty-first day of December 1960 demolish the
improvements on a portion of the land as shown coloured yellow on Drawing
No. 26 SO6 dated the 22nd day of July 1960 drawn by the Company’s
architects and initialled by or on behalf of the Council the Company and the
said Trustees for the purposes of identification (copies of which drawing are
deposited in the offices of the State and the Council) which portion is
required by the Company by the first-mentioned date for the purpose of part of
its building operations pursuant to this Agreement and the said Trustees will
on or before that date give vacant possession of the said portion of the land
to the Council; and
(b) That
the said Trustees will give to the Council vacant possession of the balance of
the land on or before the fifteenth day of September 1961.
4. THE Council will
excise and retain for street-widening purposes certain strips on the northern
eastern and southern boundaries of the land being the whole of the lands
described in Schedule “A” hereto less the portion thereof
delineated and coloured green (subject to survey) on Department of Lands and
Surveys 6 Plan No. CD 632 (hereinafter referred to as “the said
Plan CD 632” and copies of which initialled by or on behalf of the
parties hereto for the purposes of identification are deposited in the offices
of the State and of the Council) AND will sell and transfer to the Company for
the purposes hereinafter mentioned an estate in fee simple free of
encumbrances in the balance of the land being the land referred to as Lot 817
on sketchplan prepared by P. G. S. Hope & Partners dated 28/7/60 and
initialled by or on behalf of the parties hereto for the purposes of
identification (copies whereof are deposited in the offices of the State and
of the Council) and generally delineated and coloured green on the said Plan
CD 632 upon terms and conditions which will include provisions to the effect
that the Council will on the thirty-first day of December 1960 give to the
Company vacant possession of that portion of the land referred to in
paragraph (a) of clause 3 hereof and will by the thirtieth day of
September 1961 demolish the improvements on the then balance of the land and
give vacant possession thereof to the Company. Subject to survey the land
shown coloured green on the said Plan CD 632 together with adjoining land
having a width of 348.5 links (230 feet) and a depth of 522.7 links (345 feet)
or thereabouts as delineated and coloured red (subject to survey) on the said
Plan CD 632 are together hereinafter referred to as “the hotel
site.”
5. CLAUSES 6 and 7 of
this Agreement relate to the land described in Schedule “B” hereto
being Crown land vested under the provisions of the Land Act 1933-1958 in
The State Government Insurance Office having a frontage of 348.5 links (230
feet) to the said Saint George’s Terrace and adjoining the land
described in Schedule “A” hereto.
6. THE State
Government Insurance Office with the consent of the State shall sell to the
Company which shall purchase an estate in fee simple free of trusts and
encumbrances in the land described in Schedule “B” hereto for the
sum of TWO HUNDRED AND TWENTY-FOUR THOUSAND ONE HUNDRED AND SIXTY POUNDS
(£224,160) which purchase price shall be paid as follows: A deposit of
TWENTY-TWO THOUSAND FIVE HUNDRED POUNDS (£22,500) within fourteen (14)
days next following the giving by the State to the Company of a notice in
writing that both Houses of The Parliament of Western Australia have
passed the Act ratifying this Agreement and the balance of the purchase price
by two (2) equal annual instalments each of ONE HUNDRED THOUSAND EIGHT
HUNDRED AND THIRTY POUNDS (£100,830) payable respectively without
interest on the first and second anniversaries of the passing as aforesaid of
the Act ratifying this Agreement. The certificate or certificates of title to
the said land may at the option of The State Government Insurance Office be
retained by it until the Company has paid the whole of the said price and has
completed the erection on the hotel site of the hotel building in accordance
with the provisions of this Agreement. Vacant possession of the land described
in Schedule “B” hereto will be given to the Company on payment by
it of the said deposit. Section twenty-five of the Reserves Act 1959 is
deemed modified to any extent necessary to give effect to this Agreement.
7. SUBJECT to the
prior compliance by the Company with its obligations under clauses 6 and
9 hereof and subject to clause 13 hereof the Company shall sell to the
Council which shall purchase an estate in fee simple free of trusts and
encumbrances in so much of the land as is required by the Council for
street-widening purposes being strips on the northern and southern boundaries
of the land and being the whole of the land described in Schedule
“B” hereto less that portion of the land which (subject to survey)
is shown coloured red on the said Plan CD 632.
8. CLAUSES 9 to 16
both inclusive of this Agreement relate to the hotel site referred to in
clause 4 hereof.
9. THE Company shall
with all reasonable despatch after the publication of a proclamation referred
to in clause 1 hereof commence on the hotel site the construction of the
hotel building being an hotel and tourist centre containing not less than two
hundred (200) bedrooms with provision for an airline terminal all in
accordance with a ground plan and building plan approved or to be approved in
writing by the Treasurer for the time being of the State of Western Australia
(hereinafter referred to as “the Treasurer”) at a cost inclusive
of the purchase price of the land described in Schedule “B” hereto
of TWO MILLION POUNDS (£2,000,000) or thereabouts and shall complete such
construction in accordance with the said approval and the relevant laws for
the time being in force in the said State not later than two (2) months before
the date of the formal opening of the games commonly known as “The
British Empire and Commonwealth Games” at Perth in the year One thousand
nine hundred and sixty-two or before the first day of December 1962 whichever
date shall be the earlier.
10. THE Company in its
construction of the hotel building as aforesaid shall use its best endeavours
to obtain and use local materials and equipment and to employ local labour.
11. THE ground and
building plans referred to in clause 9 hereof shall to the satisfaction
of the Treasurer make adequate provision for the privacy of Government House
on adjoining land.
12. THE State
undertakes that the Bill for the Act to ratify this Agreement shall make
provision for —
(a)
approving and ratifying this Agreement;
(b)
requiring the Council and the said Trustees in accordance with the provisions
hereof to carry out the demolitions and to give the vacant possessions
referred to in this Agreement in relation to the land generally delineated and
coloured green on the said Plan CD 632;
(c) the
grant and issue of the licenses under the provisions of the Licensing
Act 1911 and its amendments for the time being in force as referred to in
clause 16 hereof;
(d)
requiring the parties to this Agreement to carry out their respective
obligations hereunder;
(e)
closing the portion of the road referred to in clause 19 hereof; and
(f)
requiring the said Trustees to erect the new college for boys as contemplated
by the provisions of clause 23 hereof.
13. EXCEPT with the
consent in writing of the Treasurer the Company shall not dispose of or
encumber the land described in Schedule “B” hereto or any part
thereof or of its interest therein or in this Agreement until the full
purchase price for that land has been duly paid and until the erection of the
hotel building on the hotel site has been completed in accordance with the
ground plan and building plan referred to in clause 9 hereof. Subject to
clause 37 hereof (relating to delays) and except where and to the extent
that the Treasurer waives compliance with an obligation of the Company if the
Company should fail to comply with any of its obligations under this Agreement
and to remedy that failure within ninety (90) days after the State has given
to the Company notice in writing specifying the obligation with which the
Company has failed to comply the Company shall thereupon forfeit the whole of
any deposit paid in respect of the land described in Schedule “B”
hereto and will also forfeit its rights and benefits under this Agreement in
relation to that land and forthwith on written demand made by the Treasurer in
that behalf shall execute or cause to be executed and shall deliver to the
Treasurer a registerable transfer of that land free of all encumbrances to the
said The State Government Insurance Office and without the payment of any
compensation shall give vacant possession of that land to that Office AND the
Company doth hereby irrevocably constitute and appoint the Treasurer the true
and lawful attorney of the Company to execute the transfer aforesaid.
14. (1)
IN the event of MacRobertson Miller Airlines Limited T.A.A. and
Ansett-A.N.A. or any two of them making request in writing to the Company that
the Company will allow part of the hotel building to be used as an airline
terminal by those Companies or by any two of them the Company will agree and
in the event of disagreement between the Company and the other Companies
concerned as to the terms and conditions upon which that part of the hotel
building may be used as such airline terminal the matter in dispute shall if
the other Companies shall so request be referred to and determined by
arbitration the Company to appoint one arbitrator and the other Companies
concerned to join in appointing one other arbitrator and the two arbitrators
to appoint an umpire who if so requested by all the parties to the arbitration
shall be the Treasurer or his nominee but otherwise the matter in dispute
shall be referred to and determined by arbitration under the provisions of the
Arbitration Act 1895 and its amendments for the time being in force.
(2) THE State agrees
in principle to undertake that while the Company maintains on the hotel site
airline terminal facilities which in the opinion of the State are adequate for
the needs of the City of Perth and unless and until a new concept accepted in
at least one other Australian State favours a system of several composite
airlines terminals of the type contemplated in subclause (1) of this
clause to serve the needs of a city the size of the City of Perth the
Government of the said State will not sponsor or assist in the establishment
of another such airline terminal in competition with the Company’s
airline terminal within an area having a radius of one mile from the hotel
site for a period of twenty years from the date hereof.
15. THE Company shall
indemnify and keep indemnified the State against all actions claims damages
costs and demands arising out of or in connection with the construction
maintenance and use by the Company of the hotel building or its use of the
hotel site.
16. (1)
ON the completion of the erection by the Company of the hotel
building or at such earlier date as the State and the Company may in writing
mutually agree upon the Company may in manner mentioned in the next succeeding
subclause apply to the Licensing Court constituted under the Licensing
Act 1911 and its amendments for the time being in force for the grant and
issue to the nominee of the Company of a publican’s general license in
respect of premises comprising the whole or part of the hotel site and the
hotel building and of a restaurant license in respect of not more than four
(4) particular areas of those premises.
(2) THE application
shall be in writing accompanied by properly drawn plans of the hotel building
showing in regard thereto the information referred to in section 61(2)(b)
of the said Act and in relation to each license applied for shall disclose the
name and address of the proposed licensee and particulars of the area or areas
in respect of which the license is sought.
(3) ON receipt of the
said application the Licensing Court may fix a premium to be paid by the
Company to the Consolidated Revenue Fund in respect of the licenses and the
Court on payment of the premium (if any) so fixed or on its deciding not to
fix a premium shall notwithstanding the provisions of the said Act in relation
to notices fees objections and hearing and without further compliance with or
observance of those provisions grant and issue the licenses as applied for as
though enabled by the said Act so to do.
(4) EACH of the
licenses so granted shall have effect as if duly granted under the said Act
but shall remain in force until the thirty-first day of December in the year
next following the date upon which the license is granted and the said Act
shall be deemed modified to any extent necessary to give effect to this
clause.
17. CLAUSES 18 to 23
hereof both inclusive relate to the land described in Schedule “C”
hereto being land comprising an area of not less than fourteen (14) acres
adjoining the south-eastern boundary of grounds owned by the Western
Australian Cricket Association Incorporated and being (subject to survey and
to reclamation) land shown coloured blue on the said Plan CD 632.
18. SO much of the
land described in Schedule “C” hereto as is at present less than
seven (7) feet six (6) inches above Low Water Mark Fremantle shall by the
thirty-first day of December 1960 be reclaimed and made stable by and at the
expense of the Council by raising that portion of the land to an elevation of
at least seven (7) feet six (6) inches above Low Water Mark Fremantle and as
part of such reclamation work the Council shall construct a levee along so
much of the boundary of the land as is at the date hereof below Low Water Mark
Fremantle. The Council will indemnify and keep indemnified the State against
all actions claims damages costs and demands arising out of or in connection
with the work.
19. ON the publication
of a proclamation referred to in clause 1 hereof the State will give to
the Council which in turn will forthwith give to the said Trustees vacant
possession of so much of the land as is then not less than seven (7) feet six
(6) inches above Low Water Mark Fremantle and is not the subject of the
easements referred to in clause 21 hereof. So much of the gazetted road
being portion of the road known as Riverside Drive as is included in the land
described in Schedule “C” hereto will be closed by a provision in
the Act ratifying this Agreement.
20. THE State will
give to the Council which in turn will forthwith give to the said Trustees
vacant possession of the balance of the land progressively as and when the
reclamation work referred to in clause 18 hereof raises the land to a
height of not less than seven (7) feet six (6) inches above Low Water Mark
Fremantle.
21. AS soon as
conveniently may be after the reclamation work referred to in clause 18
hereof is sufficiently advanced for the purposes of this clause the State will
cause a survey to be made of the whole of the land and when the said Trustees
have entered into a contract for the erection of the new college referred to
in clause 23 hereof and work pursuant to that contract has commenced on
the site of the new college the State will cause to be issued to the Council a
Crown Grant to the land under the provisions of the Land Act 1933-1958
(as though enabled thereby) subject to and conditionally upon the simultaneous
execution by the Council and delivery to the State of Deeds of Easement in
respect of a portion of the land being a strip thirty-three (33) feet wide
adjoining and extending along the north-western boundary of the land in a form
which has already been approved by the State the Council and the said Trustees
and initialled by them or on their behalf for the purposes of identification
(copies of which form are deposited in the offices of the State and of the
Council). The Council will in turn forthwith thereafter transfer the whole of
its estate and interest in the land and will give vacant possession thereof to
the said Trustees subject to the easements created by the said Deeds of
Easement.
22. BY the
thirty-first day of March 1961 this State will cause the Metropolitan Water
Supply Sewerage and Drainage Department and the State Electricity Commission
of Western Australia to provide to the land reasonable facilities for the
services of sewerage water electricity and gas upon and subject to terms and
conditions as usually imposed by the said Department and the said Commission
respectively in relation to the provision of those services: PROVIDED THAT the
Council will on demand pay to the said Department the whole of the expenses
which it incurs hereunder and will pay to the said Commission any amount which
that Commission determines to have been incurred by it in providing the
facility in excess of the normal expenditure for the purpose.
23. THE Council
warrants that its separate agreement with the said Trustees makes provision
that with all reasonable despatch after the publication of a proclamation
referred to in clause 1 hereof the said Trustees will commence the
erection upon so much of the land of which it has vacant possession of a new
college for boys and will by the fifteenth day of September 1961 complete the
erection of the new college in substitution for the college referred to in
clause 2 hereof.
24. CLAUSES 25 and 26
of this Agreement relate to the lands described in Schedule “D”
hereto being lands comprising a total of five and one-half (5½) acres or
thereabouts in area and adjoining the South Kensington School in Victoria Park
and in respect of which the Council is registered as the proprietor of an
estate in leasehold.
25. AS soon as
practicable after the publication of a proclamation referred to in
clause 1 hereof the Council in consideration of these presents will
surrender to Her Majesty the whole of the Council’s estate and interest
in the lands described in Schedule “D” hereto and give vacant
possession thereof.
26. THE State will
cause the lands to be set apart under the provisions of the Land
Act 1933-1958 as reserves for school sites.
27. CLAUSES 28 and 29
hereof relate to the land described in Schedule “E” hereto
being land comprising forty-one (41) acres or thereabouts situate in the Mount
Kenneth area of the City of Perth and in respect of which the Council is
registered as the proprietor of an estate in fee simple.
28. AS soon as
practicable after a request in writing for the purpose is made to the Council
by the State after the publication of a proclamation referred to in
clause 1 hereof the Council will in consideration of these presents
execute and deliver a registerable transfer to the Minister of Water Supply
Sewerage and Drainage of the whole of the Council’s estate and interest
in the land described in Schedule “E” hereto free of trusts and
encumbrances and at the time of such delivery shall give vacant possession of
the land to the said Minister with a view to the subsequent use of that land
for water supply purposes.
29. THE land shall be
valued as at the date of this Agreement by mutual agreement between the State
and the Council and in default of agreement the valuation shall be referred to
and determined by arbitration as hereinafter provided. The amount of the
valuation as so agreed or determined shall not be payable to the Council but
shall be credited without interest to the Council in the books of the State
against the total of the valuations referred to in clause 32 hereof.
30. CLAUSES 31 32 and
33 of this Agreement relate to the lands described in Schedule “F”
hereto comprising Reserve 18392 for Public Buildings upon which the existing
Supreme Court Buildings stand less that portion thereof shown coloured brown
on the said Plan CD 632 and also comprising the whole of adjoining Reserve
A18391 for Public Gardens.
31. THE lands
described in Schedule “F” hereto shall as at the date of this
Agreement be valued on the basis of unimproved land free from all restrictions
of a town planning nature at an amount to be determined by agreement between
the State and the Council and in default of agreement to be referred to and
determined by arbitration as hereinafter provided. The amount of the valuation
as so agreed or determined shall not be payable in cash by the Council but
shall be credited without interest to the State for the purpose mentioned in
the next succeeding clause.
32. THE State agrees
that the town planning scheme proposed by the Council for the area bounded by
Barrack Street Saint George’s Terrace Victoria Avenue and Riverside
Drive as generally indicated (subject to survey) on the Council’s
Drawing No. 2432 (copies of which initialled by or on behalf of the
parties hereto for the purposes of identification are deposited in the offices
of the State and of the Council) is one that is desirable to be carried into
effect and also agrees that the understanding of the State is that for this
scheme to be fully effective it will be necessary for the lands described in
Schedule “F” hereto to be acquired by the Council. The State is
not now prepared to sell or transfer these lands to the Council but when at
some future time the then Government of the said State may decide that because
of the growth of population or for other reason it becomes necessary to erect
elsewhere new Supreme Court Buildings in substitution for the existing Supreme
Court Buildings the then Government will grant and issue to the Council a
Crown Grant under the provisions of the Land Act 1933-1958 (as though
enabled thereby) of the whole of the lands described in Schedule
“F” hereto for a consideration which subject to any agreement to
the contrary which may then be made between the then Government and the
Council will be equal to the difference between the valuation referred to in
clause 29 hereof of the land situate in the Mount Kenneth area and
described in Schedule “E” hereto on the one hand and on the
other hand the total of the valuation referred to in clause 31 hereof of
the lands described in Schedule “F” hereto and the valuation (to
be agreed or determined as mentioned in clause 31 hereof) of the
improvements on the lands described in Schedule “F” hereto as
those improvements shall exist on the date of the issue of the said Crown
Grant. The amount of such difference shall be paid by the Council to the State
on the issue of the said Crown Grant and the State will then give to the
Council vacant possession of the lands.
33. THE Council in its
use of the lands the subject of the Crown Grant referred to in the last
preceding clause will have due regard to the preservation of that historical
building situate on portion of the said lands which was the original Supreme
Court Building in the said State and which at the date hereof is being
occupied by the Court of Arbitration.
34. IN relation to the
lands described in Schedule “G” hereto comprising Government House
site certain lands adjoining that site on the western and eastern boundaries
and also the excepted portion (coloured brown on the said Plan CD 632) of
the reserve for Public Buildings referred to in Schedule “F”
hereto the State appreciates that the completion of the Council’s
proposed town planning scheme for the area referred to in clause 32
hereof will require the excision from the lands of such substantial areas of
both the northern and southern boundaries as will make the existing Government
House on the lands no longer tenable as the Governor’s residence. The
State acknowledges to the Council that when the time comes that Government
House is no longer required as the Governor’s residence it is
anticipated that the Government of that time will give to the Council the
right to acquire for street-widening purposes strips on the northern and
southern boundaries of the lands generally indicated (subject to survey) on
the said Council’s drawing number 2432 on terms then to be agreed upon.
35. IN relation to the
lands described in Schedule “H” hereto being lands adjacent to
Nelson Crescent in the City of Perth and shown coloured grey on the said Plan
CD 632 the Council undertakes with the State that the Council will provide a
parking area for motor and other vehicles on the lands and will acquire by
private treaty or compulsorily such lands as it may be necessary to acquire
for this purpose.
36. THE remaining
clauses of this Agreement are of general application.
37. THIS Agreement is
made subject to any delays in the performance of obligations herein which may
be occasioned by or arise from circumstances beyond the power and control of
the party to this Agreement responsible for the performance of such
obligations including delays caused by or arising from act of God act of war
force majeure act of public enemies strikes lockouts stoppages restraint of
labour or other similar acts (whether partial or general) shortage of
essential materials reasonable failure to secure or delays of contractors
riots and civil commotion.
38. THIS Agreement
shall be interpreted according to the laws for the time being in force in the
said State of Western Australia.
39. ANY obligation of
the State or of the Company under the provisions of this Agreement may from
time to time be cancelled added to or varied by an agreement to that effect
made between the State and the Company.
40. ANY dispute or
difference between the State and any one or more of the other parties to this
Agreement arising out of or in connection with this Agreement (except
clause 34 hereof) or any variation thereof or as to the construction of
this Agreement or of such variation or as to the rights duties or liabilities
of the parties hereto shall in default of agreement between the parties to the
dispute or difference be referred to and settled by arbitration under the
provisions of the Arbitration Act 1895 and its amendments for the time
being in force. This clause is without prejudice to the rights and obligations
of the Council or of the Company which they or either of them may have under
any separate agreement between themselves or with the said Trustees.
41. ANY notice consent
request or other writing authorised or required by this Agreement to be given
or sent by or to the State or the Company shall be deemed to have been duly
given or sent by the State if signed by the Treasurer and forwarded by prepaid
post to the Company at its registered office in the State of Western Australia
and by the Company if signed by the attorney general manager or secretary of
the Company and forwarded by prepaid post to the Treasurer AND shall be deemed
to be given or sent at the time when in due course of post it should be
delivered at the address to which it is sent.
42. THE Act ratifying
this Agreement may make provision for an amendment to the Swan River
Improvement Act 1925-1939 to authorise the reclamation of further land
adjoining the land described in Schedule “C” hereto.