draft deed of variation - 57 ashmore street, erskineville€¦ · this amendment deed is made on...
TRANSCRIPT
Amendment Deed
The Council of the City of Sydney
and
Greenland Golden Horse Investment Pty Ltd ACN 600 607 001
as trustee for
The Greenland Golden Horse Investment Trust ABN 60 504 131 264
and
Greenland Golden Horse Investment No. 5 Pty Ltd ACN 629 257 398
as trustee for
The Greenland Golden Horse Investment Trust No. 5 ABN 98 501 855 702
CONTENTS
CLAUSE PAGE
1. INTERPRETATION ............................................................................................3
2. AMENDMENTS .................................................................................................3
3. EFFECTIVE DATE..............................................................................................3
4. REMAINING PROVISIONS UNAFFECTED ..............................................................4
5. REGISTRATION ON TITLE .................................................................................4
6. DEALINGS .......................................................................................................4
7. GENERAL ........................................................................................................5
7.1 Governing law ......................................................................................5
7.2 Liability for expenses .............................................................................5
7.3 Counterparts ........................................................................................5
Schedule 1 – Planning Agreement ......................................................................................... 6
THIS AMENDMENT DEED is made on 2019.
BETWEEN:
(1) The Council of the City of Sydney ABN 22 636 550 790 of Town Hall House,
456 Kent Street, SYDNEY NSW 2000 (the City); and
(2) Greenland Golden Horse Investment Pty Ltd ACN 600 607 001 as trustee
for The Greenland Golden Horse Investment Trust ABN 60 504 131 264 of
Level 23, 31 Market Street, SYDNEY NSW 2000 (the Developer); and
(3) Greenland Golden Horse Investment No. 5 Pty Ltd ACN 629 257 398 as
trustee for The Greenland Golden Horse Trust No. 5 ABN 98 501 855 702 of
Level 23, 31 Market Street, SYDNEY NSW 2000 (the Property 2 Landowner).
BACKGROUND
(A) The City and the Developer are parties to a Planning Agreement in relation to the
Development, the purpose of which is to facilitate the provision by the Developer
of certain Public Benefits in phases over a number of years.
(B) Under the Planning Agreement, the Developer is required to provide Guarantees
as security for the provision of the Public Benefits and payment of contributions
under section 7.11 of the Act, with the Guarantees for Phases 1 to 4 of the
Development being required prior to the issue of any construction certificate
referable to Building B or C.
(C) The parties wish to amend the Planning Agreement in the manner set out in this
Deed to enable the staged provision of Guarantees for Phases 1 to 7 of the
Development and to add the Property 2 Landowner as a party to the Planning
Agreement.
(D) The Property 2 Landowner consents to becoming a party to the Planning
Agreement on the terms set out in this Deed.
THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
(a) Words which are defined in the Planning Agreement and which are used in
this Deed have the same meaning in this Deed as in the Planning Agreement.
(b) The provisions of clause 1.2 of the Planning Agreement form part of this
Deed as if set out at length in this Deed.
2. AMENDMENTS
The Planning Agreement is amended as set out in Schedule 1 of this Deed.
3. EFFECTIVE DATE
This Deed takes effect, and the parties agreed to be bound by the Planning
Agreement as amended by this Deed, from the date of this Deed (the Effective
Date).
4. REMAINING PROVISIONS UNAFFECTED
(a) Except as specifically amended by this Deed, all terms and conditions of the
Planning Agreement remain in full force and effect.
(b) With effect from the Effective Date (as defined in clause 3), the Planning
Agreement as amended by this Deed is to be read as a single integrated
document incorporating the amendments in Schedule 1.
5. REGISTRATION ON TITLE
The Developer and Property 2 Landowner:
(a) consent to the registration of this Deed at NSW Land Registry Services on
the certificate of title to Property 1 and Property 2 (as relevant);
(b) warrant that they will formally request all consents to the registration of this
Deed on the certificate of title to Property 1 and Property 2 (as relevant)
within 20 Business Days of the execution of this Deed by all parties; and
(c) must within 20 Business Days of a written request from the City do all things
necessary to allow the City to register this Deed on the certificate of title to
Property 1 and Property 2 (as relevant), including but not limited to:
(i) producing any title documents required by the Registrar-General of
NSW Land Registry Services;
(ii) providing any letters of consent to registration of this Deed on the
certificate of title to Property 1 and Property 2 which have been
provided to the Developer and Property 2 Landowner; and
(iii) providing the production slip number when the Developer produces
the certificate of title to Property 1 and Property 2 at NSW Land
Registry Services; and
(d) The Developer must provide the City with a cheque for registration fees
payable in relation to registration of this document at NSW Land Registry
Services.
(e) The Developer must act promptly in complying with and assisting to respond
to any requisitions raised by NSW Land Registry Services that relate to
registration of this document.
6. DEALINGS
Prior to registration of this Deed in accordance with clause 5:
(a) the Developer must not Deal with this Deed without:
(i) the prior written consent of the City; and
(ii) the City, the Developer and the Property 2 Landowner and the third
party the subject of the Dealing entering into a Novation Deed; and
(b) the Developer and the Property 2 Landowner must not Deal with this Deed
or Property 1 or Property 2 without:
(i) the prior written consent of the City; and
(ii) the City, the Developer, the Property 2 Landowner and the third party
the subject of the Dealing entering into a Novation Deed.
7. GENERAL
7.1 Governing law
(a) This Deed is governed by the laws of New South Wales.
(b) Each party submits to the exclusive jurisdiction of the courts exercising
jurisdiction in New South Wales, and any court that may hear appeals from
any of those courts, for any proceedings in connection with this Deed, and
waives any right it might have to claim that those courts are an inconvenient
forum.
7.2 Liability for expenses
(a) The Developer must pay its own and the City’s expenses incurred in
negotiating, executing, registering, releasing, administering and enforcing
this Deed.
(b) The Developer must pay for all reasonable costs and expenses associated
with the preparation and giving of public notice of this Deed.
(c) The Developer and the City acknowledge and agree that the Property 2
Landowner will not be responsible for any expenses associated with
negotiating, executing, registering, releasing, administering and enforcing
this Deed.
7.3 Counterparts
This Deed may be executed in counterparts.
Planning Agreement
The Council of the City of Sydney
and
Greenland Golden Horse Investment Pty Ltd ACN 600 607 001
as trustee for
The Greenland Golden Horse Investment Trust ABN 60 504 131 264
and
Greenland Golden Horse Investment No. 5 Pty Ltd ACN 629 257 398
as trustee for
The Greenland Golden Horse Investment Trust No. 5 ABN 98 501 855 702
CONTENTS
CLAUSE PAGE
1. INTERPRETATION ............................................................................................3
2. AMENDMENTS .................................................................................................3
3. EFFECTIVE DATE..............................................................................................3
4. REMAINING PROVISIONS UNAFFECTED ..............................................................4
5. REGISTRATION ON TITLE .................................................................................4
6. DEALINGS .......................................................................................................4
7. GENERAL ........................................................................................................5
7.1 Governing law ......................................................................................5 7.2 Liability for expenses .............................................................................5 7.3 Counterparts ........................................................................................5
1. INTERPRETATION .......................................................................................... 11
1.1 Definitions ......................................................................................... 11 1.2 Rules for interpreting this document...................................................... 18
2. APPLICATION OF THE ACT AND THE REGULATION ............................................. 19
2.1 Application of this document ................................................................ 19 2.2 Public Benefits to be made by Developer ............................................... 19 2.3 Application of sections 7.11, 7.12 and 7.24 of the Act ............................. 19 2.4 City rights .......................................................................................... 20 2.5 Explanatory note ................................................................................ 20
3. OPERATION OF THIS PLANNING AGREEMENT .................................................... 20
3.1 Commencement ................................................................................. 20 3.2 Property 2 Landowner obligations ......................................................... 20
4. WARRANTIES ................................................................................................ 20
4.1 Mutual warranties ............................................................................... 20 4.2 Developer warranties .......................................................................... 21 4.3 Property 2 Landowner warranties .......................................................... 21
5. PUBLIC BENEFITS .......................................................................................... 21
5.1 Developer to provide Public Benefits ..................................................... 21 5.2 Trunk Drainage design election ............................................................. 22 5.3 Resequencing of Public Benefits ............................................................ 22
6. SECTION 7.11 PUBLIC BENEFITS ..................................................................... 22
6.1 Subject to clause 5.1 ........................................................................... 22 6.2 Adjustment of Attributed Value of Section 7.11 Public Benefits ................. 23 6.3 Ability to offset against section 7.11 obligations ...................................... 23 6.4 Section 7.11 Credits ............................................................................ 23 6.5 Ability to carry forward ........................................................................ 24 6.6 Treatment of section 7.11 obligations .................................................... 24
7. SECTION 7.11 RECONCILIATIONS .................................................................... 24
7.1 General ............................................................................................. 24 7.2 End of Development Reconciliation ........................................................ 24
8. COMPLETION ................................................................................................. 25
8.1 Date of Completion ............................................................................. 25
8.2 Sunset Date for Completion ................................................................. 26 8.3 Developer completion notice ................................................................ 26 8.4 Inspection by the City ......................................................................... 26 8.5 Non-completion of Public Benefits ......................................................... 27
9. INDEMNITY ................................................................................................... 28
10. DEFECTS LIABILITY ........................................................................................ 28
10.1 Security for Defects Liability Period ....................................................... 28 10.2 Defect in the Public Benefits ................................................................. 28 10.3 Maintenance of the Public Benefits ........................................................ 28
11. REGISTRATION AND CAVEAT .......................................................................... 29
11.1 Registration of this document ............................................................... 29 11.2 Caveat .............................................................................................. 30 11.3 Release of this document ..................................................................... 31
12. PROVISION OF GUARANTEE ............................................................................ 31
12.1 Developer to provide Guarantee ........................................................... 31 12.2 Developer to provide a Monetary Contributions Notice ............................. 31 12.3 City to approve or reject Monetary Contribution Notice ............................ 32 12.4 Indexation ......................................................................................... 33 12.5 Adjustment of Guarantee Amount ......................................................... 33
13. ENFORCEMENT .............................................................................................. 34
13.1 Right of City to claim on Guarantee ....................................................... 34 13.2 Expenditure by the City ....................................................................... 35 13.3 Top-up of Guarantee ........................................................................... 35 13.4 Return of Guarantee ........................................................................... 35 13.5 Compulsory acquisition ........................................................................ 36
14. DISPUTE RESOLUTION ................................................................................... 36
14.1 Application ......................................................................................... 36 14.2 Negotiation ........................................................................................ 36 14.3 Not use information ............................................................................ 37 14.4 Condition precedent to litigation ........................................................... 37 14.5 Summary or urgent relief..................................................................... 37
15. TAXES AND GST ............................................................................................ 37
15.1 Responsibility for Taxes ....................................................................... 37 15.2 GST free supply .................................................................................. 38 15.3 Supply subject to GST ......................................................................... 38
16. DEALINGS ..................................................................................................... 38
16.1 Dealing by the City ............................................................................. 38 16.2 Dealing by the Developer and Property 2 Landowner ............................... 39 16.3 Extinguishment or creation of interests on Transfer Land and Easement Land
........................................................................................................ 40
17. TERMINATION ............................................................................................... 40
18. CONFIDENTIALITY AND DISCLOSURES ............................................................. 41
18.1 Use and disclosure of Confidential Information ....................................... 41 18.2 Disclosures to personnel and advisers ................................................... 41 18.3 Disclosures required by law .................................................................. 41 18.4 Receiving party's return or destruction of documents .............................. 42 18.5 Security and control ............................................................................ 42 18.6 Media releases ................................................................................... 42
19. TRUSTEE CAPACITY ....................................................................................... 43
19.1 Limitation of Liability – Greenland Golden Horse Investment Pty Ltd ......... 43 19.2 Limitation of Liability – Greenland Golden Horse Investment No. 5 Pty Ltd . 43 19.3 Trust representations and warranties .................................................... 44 19.4 Trustee obligations.............................................................................. 44
20. NOTICES ...................................................................................................... 45
21. GENERAL ...................................................................................................... 45
21.1 Governing law .................................................................................... 45 21.2 Access to information .......................................................................... 45 21.3 Liability for expenses ........................................................................... 45 21.4 Role and relationship of parties ............................................................ 46 21.5 Giving effect to this document .............................................................. 46 21.6 Time for doing acts ............................................................................. 46 21.7 Severance.......................................................................................... 46 21.8 Preservation of existing rights .............................................................. 47 21.9 No merger ......................................................................................... 47 21.10 Waiver of rights .................................................................................. 47 21.11 Operation of this document .................................................................. 47 21.12 Operation of indemnities ...................................................................... 47 21.13 Inconsistency with other documents...................................................... 47 21.14 No fetter ............................................................................................ 48 21.15 Counterparts ...................................................................................... 48
1. PUBLIC BENEFITS - OVERVIEW........................................................................ 57
2. TRANSFER LAND ............................................................................................ 62
2.1 Dedication of land – decision ................................................................ 62 2.2 Obligations on dedication ..................................................................... 62 2.3 Obligations on transfer ........................................................................ 62
3. EASEMENTS .................................................................................................. 63
3.1 Creation ............................................................................................ 63 3.2 Obligations satisfied ............................................................................ 63
4. FINAL DESIGN OF THE DEVELOPER’S WORKS ................................................... 64
4.1 Scope of Developer’s Works ................................................................. 64 4.2 Final design of Developer’s Works ......................................................... 64 4.3 Preparation of and changes to construction design drawings .................... 65
5. CONSTRUCTION OF DEVELOPER’S WORKS ........................................................ 66
5.1 Insurance .......................................................................................... 66 5.2 Approvals and consents ....................................................................... 67 5.3 Construction work ............................................................................... 67 5.4 Inspections by the City ........................................................................ 67
6. STANDARDS .................................................................................................. 67
1. DEFINITIONS AND INTERPRETATION ............................................................... 74
1.1 Definitions ......................................................................................... 74 1.2 Rules for interpreting this document...................................................... 75
2. NOVATION .................................................................................................... 75
3. RIGHTS AND OBLIGATIONS ............................................................................ 75
4. RELEASE AND LIABILITY ................................................................................. 75
4.1 City ................................................................................................... 75 4.2 Outgoing Party ................................................................................... 75
5. CONFIRMATION OF PLANNING AGREEMENT ...................................................... 76
6. REPRESENTATIONS AND WARRANTIES ............................................................. 76
6.1 Authority ........................................................................................... 76 6.2 Authorisations .................................................................................... 76
7. TRUSTEE CAPACITY ....................................................................................... 76
7.1 Limitation of Liability – Greenland Golden Horse Investment Pty Ltd ........ 76 7.2 Limitation of Liability – Greenland Golden Horse Investment No. 5 Pty Ltd . 77 7.3 Trust representations and warranties .................................................... 77 7.4 Trustee obligations.............................................................................. 78 If a party enters into this document in its capacity as trustee of a trust, that party
must: ................................................................................................ 78
8. NOT USED .................................................................................................... 78
9. NOT USED .................................................................................................... 78
10. GENERAL ...................................................................................................... 78
Schedules
1 Agreement Details ......................................................................................... 49 2 Requirements under the Act and Regulation (clause 2) ....................................... 54 3 Public Benefits (clause 5) ................................................................................ 57 4 Novation Deed ............................................................................................... 73 5 Easements .................................................................................................... 82
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THIS PLANNING AGREEMENT is made on 2017.
BETWEEN:
(1) The Council of the City of Sydney ABN 22 636 550 790 of Town Hall House,
456 Kent Street, SYDNEY NSW 2000 (the City); and
(2) Greenland Golden Horse Investment Pty Ltd ACN 600 607 001 as trustee
for The Greenland Golden Horse Investment Trust ABN 60 504 131 264 of
Level 23, 31 Market Street, SYDNEY NSW 2000 (the Developer); and
(3) Greenland Golden Horse Investment No. 5 Pty Ltd ACN 629 257 398 as
trustee for The Greenland Golden Horse Trust No. 5 ABN 98 501 855 702 of
Level 23, 31 Market Street, SYDNEY NSW 2000 (the Property 2 Landowner).
BACKGROUND
(A) The Developer is the owner of Property 1 and intends to undertake the
Development on the Land. The Development will be carried out in phases over a
number of years.
(B) The Property 2 Landowner is the owner of Property 2 and consents to the
Developer undertaking the Development on Property 2 subject to the terms of this
document.
(C) The Developer has offered to enter into this document with the City to provide the
Public Benefits on the terms of this document. The Public Benefits will be delivered
in phases over a number of years.
(D) The Property 2 Landowner has agreed to be a party to this document solely in its
capacity as landowner of part of the land on which the Public Benefits will be
provided.
THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 Definitions
The following definitions apply in this document.
Act means the Environmental Planning and Assessment Act 1979 (NSW).
Active Phase(s) means any Phase or Phases for which a construction certificate
has been issued, or in relation to which the Developer has given the City a
Monetary Contributions Notice.
Adverse Affectation has the same meaning as in clause 4 of Part 2 of Schedule
3 of the Conveyancing (Sale of Land) Regulation 2010 (NSW).
Attributed Value means the value the City and the Developer agree is to be
attributed to each element of the Public Benefits as at the date of this document,
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as set out in clause 1 of Schedule 3 of this document as may be adjusted in
accordance with clause 6.2.
Authorisation means:
(a) an approval, authorisation, consent, declaration, exemption, permit, licence,
notarisation or waiver, however it is described, and including any condition
attached to it; and
(b) in relation to anything that could be prohibited or restricted by law if a
Government Agency acts in any way within a specified period, the expiry of
that period without that action being taken,
including any renewal or amendment.
Business Day means a day (other than a Saturday, Sunday or public holiday) on
which banks are open for general banking business in Sydney, Australia.
City's Personal Information means Personal Information to which the
Developer, or any third party engaged by the Developer, has access directly or
indirectly in connection with this document, including the Personal Information of
any personnel, customer or supplier of the City (other than the Developer).
City's Policies means all policies and procedures relevant to the provision of the
Public Benefits, as notified by the City in writing to the Developer.
City’s Representative means the person named in Item 3 of Schedule 1 or
his/her delegate.
Completion means the point at which the Developer’s Works or each relevant
part of them are complete except for minor defects:
(a) the existence of which do not prevent the Developer’s Works being
reasonably capable of being used for their intended purpose;
(b) which the Developer has grounds for not promptly rectifying; and
(c) rectification of which will not affect the immediate and convenient use of the
Developer’s Works for their intended purpose.
Completion Notice means a notice issued by the Developer in accordance with
clause 8.1.
Confidential Information means:
(a) information of a party (disclosing party) that is:
(i) made available by or on behalf of the disclosing party to the other
party (receiving party), or is otherwise obtained by or on behalf of
the receiving party; and
(ii) by its nature confidential or the receiving party knows, or ought
reasonably to know, is confidential.
13
Confidential Information may be made available or obtained directly or indirectly,
and before, on or after the date of this document.
Confidential Information does not include information that:
(a) is in or enters the public domain through no fault of the receiving party or
any of its officers, employees or agents;
(b) is or was made available to the receiving party by a person (other than the
disclosing party) who is not or was not then under an obligation of
confidence to the disclosing party in relation to that information; or
(c) is or was developed by the receiving party independently of the disclosing
party and any of its officers, employees or agents.
Construction Certificate has the same meaning as in the Act.
Contamination has the meaning given to that word in the Contaminated Land
Management Act 1997 (NSW).
Corporations Act means the Corporations Act 2001 (Cth).
Cumulative Shortfall means an amount calculated in accordance with Item 7D
of Schedule 1 of this document.
DCP Public Benefits means the Public Benefits described as “DCP Public Benefits”
in Schedule 3.
DCP Works Guarantee means a Guarantee or Guarantees for the DCP Works
Guarantee Amount.
DCP Works Guarantee Amount means an amount in accordance with Item 7A
of Schedule 1 of this document.
Dealing means selling, transferring, assigning, novating, charging, or
encumbering (other than by mortgage) and, where appearing, Deal has the same
meaning.
Defect means any error, omission, defect, non-conformity, discrepancy,
shrinkage, blemish in appearance or other fault in the Public Benefits or any other
matter which prevents the Public Benefits from complying with the terms of this
document.
Defects Liability Period means, for each Phase of the Developer’ Works, the
period of 12 months from the date on which the last item of Developer’s Works
within that Phase of the Developer’s Works reaches Completion.
Developer’s Representative means the person named in Item 4 of Schedule 1
or his/her delegate.
Developer’s Works means those parts of the Public Benefits described as “S.11
Works” and "DCP Public Benefits (works)" in clause 1 of Schedule 3, to be delivered
by the Developer in accordance with this document.
14
Development means the development of the Land by the Developer described at
Item 2 of Schedule 1.
Development Application means the development application identified in Item
6 of Schedule 1 and includes all plans, reports, models, photomontages and
material boards (as amended or supplemented) submitted to the consent authority
before the determination of that Development Application.
Development Consent means the consent granted to the Development
Application for the Development and includes all modifications made under
section 4.55 of the Act.
Dispute means any dispute or difference between the parties arising out of,
relating to or in connection with this document, including any dispute or difference
as to the formation, validity, existence or termination of this document.
Easements means the interests, substantially in the form attached to this
document at Schedule 5, to be created over the Easement Land in accordance with
Schedule 3 of this document which form part of the Public Benefits.
Easement Land means land over which the Easements are to be created.
Environmental Laws means all laws and legislation relating to environmental
protection, building, planning, health, safety or work health and safety matters
and includes the following:
(a) the Work Health and Safety Act 2011 (NSW);
(b) the Protection of the Environment Operations Act 1997 (NSW); and
(c) the Contaminated Land Management Act 1997 (NSW).
Government Agency means:
(a) a government or government department or other body;
(b) a governmental, semi-governmental or judicial person; or
(c) a person (whether autonomous or not) who is charged with the
administration of a law.
Gross Floor Area has the meaning given to that term in the Sydney Local
Environment Plan in effect at the date of this document.
GST means the same as in the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Guarantee means an irrevocable unconditional bank guarantee or documentary
performance bond for the Guarantee Amount which must:
(a) be denominated in Australian dollars;
(b) be an unconditional undertaking;
15
(c) be signed and issued by a bank licensed to carry on business in Australia,
an Australian Prudential Regulation Authority (APRA) regulated authorised
deposit taking institution or an insurer authorised by APRA to conduct new
or renewal insurance business in Australia having at all times an investment
grade security rating from an industry recognised rating agency of at least:
(i) BBB + (Standard & Poors and Fitch);
(ii) Baa 1 (Moodys); or
(iii) Bbb (Bests);
(d) be issued on behalf of the Developer;
(e) have no expiry or end date;
(f) state the beneficiary as the City;
(g) be irrevocable;
(h) state the Guarantee Amount as the minimum amount required by this
document to be lodged as security;
(i) state the purpose of the security as required in accordance with this
document; and
(j) be on such other terms approved by the City.
Guarantee Amount(s) means a Guarantee or Guarantees for the total amount
listed in Item 7 of Schedule 1 of this document or, where the context requires, the
Guarantee or Guarantees for the total amount required for a specified Phase.
Guarantee Amount(s) Due Date means the date or milestone by which the
Developer must provide the Guarantee Amount to the City, set out at Item 8 of
Schedule 1.
Index Number means the Consumer Price Index (Sydney all groups) published
by the Australian Bureau of Statistics from time to time.
Insolvency Event means:
(a) having a controller, receiver, manager, administrator, provisional liquidator,
liquidator or analogous person appointed;
(b) an application being made to a court for an order to appoint a controller,
provisional liquidator, trustee for creditors or in bankruptcy or analogous
person to the person or any of the person's property;
(c) the person being taken under section 459F(1) of the Corporations Act to
have failed to comply with a statutory demand;
(d) an application being made to a court for an order for its winding up;
(e) an order being made, or the person passing a resolution, for its winding up;
16
(f) the person:
(i) suspending payment of its debts, ceasing (or threatening to cease) to
carry on all or a material part of its business, stating that it is unable
to pay its debts or being or becoming otherwise insolvent; or
(ii) being unable to pay its debts or otherwise insolvent;
(g) the person taking any step toward entering into a compromise or
arrangement with, or assignment for the benefit of, any of its members or
creditors;
(h) a court or other authority enforcing any judgment or order against the
person for the payment of money or the recovery of any property; or
(i) any analogous event under the laws of any applicable jurisdiction,
unless this takes place as part of a solvent reconstruction, amalgamation, merger
or consolidation that has been approved by the other party.
Land means the land described in Item 1 of Schedule 1 of this document.
Laws means all applicable laws, regulations, industry codes and standards,
including all Environmental Laws.
Monetary Contributions Notice means a written notice given by the Developer
to the City under clause 12.2(a).
Novation Deed means a deed on terms substantially consistent with the deed
attached at Schedule 4 of this document.
Occupation Certificate has the same meaning as in the Act.
Personal Information has the meaning set out in the Privacy Act 1988 (Cth).
Personnel means the Developer’s officers, employees, agents, contractors or
subcontractors.
Phase means a phase in the construction of the Development, being either:
(a) Phase 1 which relates to Buildings B and C;
(b) Phase 2 which relates to Building A;
(c) Phase 3 which relates to Building D;
(d) Phase 4 which relates to Building E;
(e) Phase 5 which relates to Building F;
(f) Phase 6 which relates to Building I; or
(g) Phase 7 which relates to Building G and H;
as those areas are identified in the document prepared by AECOM dated 7 October
2016 and identified as “Site Locality and Indicative Phasing”.
17
Phase Subdivision means the subdivision of Property 1 and or Property 2 into
parcels to reflect each Phase.
Privacy Laws means the Privacy Act 1988 (Cth), the Privacy and Personal
Information Protection Act 1998 (NSW), the Spam Act 2003 (Cth), the Do Not Call
Register Act 2006 (Cth) and any other applicable legislation, principles, industry
codes and policies relating to the handling of Personal Information.
Property 1 means the whole of the land contained in Lot 1 in DP 1236425 and
located at 149 -163 Mitchell Road Erskineville.
Property 2 means the whole of the land contained in Lots 2 to 5 in
DP 1236425 and Lot 2 in DP 772101 and located at 149-175 Mitchell Road
Erskineville.
Public Benefits means the provision of benefits to the community by the
Developer in the form and at the times specified in Schedule 3 which are comprised
of the Section 7.11 Public Benefits and the DCP Public Benefits.
Quantity Surveyor means a qualified independent and practising quantity
surveyor with at least five years’ experience in the assessment of building and
construction costs.
Quantity Surveyor’s Assessment means the assessment by the Quantity
Surveyor of the cost to deliver the Developer’s Works.
Reconciliation Date means the date of issue of an Occupation Certificate in
respect of the Stage 2 Development Consent for Phase 7.
Regulation means the Environmental Planning and Assessment Regulation 2000
(NSW).
Remediation Action Plan means the document of this name as approved under
the Development Consent.
S7.11 Works Guarantee means a Guarantee or Guarantees for the S7.11 Works
Guarantee Amount.
S7.11 Works Guarantee Amount means the amount listed in Item 7B of
Schedule 1 of this document.
Section 7.11 Credit means the amount by which the Attributed Value for Section
7.11 Public Benefits associated with a particular Phase exceeds the section 7.11
monetary contributions payable for that Phase.
Section 7.11 Monetary Contributions mean the section 7.11 monetary
contributions imposed pursuant to any Stage 2 Development Consent.
Section 7.11 Public Benefits means the Public Benefits described as “S7.11
Works” and “S7.11 Land Dedication” in Schedule 3.
Shortfall means an amount calculated in accordance with Item 7C of Schedule 1
of this document.
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Shortfall Guarantee means a Guarantee or Guarantees for the Shortfall
Guarantee Amount.
Shortfall Guarantee Amount means total amount calculated in accordance with
Item 7E of Schedule 1 of this document.
Stage 2 Development Application means subsequent detailed development
applications for each respective Phase of the Development.
Stage 2 Development Consent means any consent granted in respect of a Stage
2 Development Application for the Development.
Standards means the policies, procedures and standards for carrying out the
Developer’s Works, listed non-exhaustively at clause 6 of Schedule 3.
Subdivision of Land has the same meaning as in the Act.
Sunset Date has the meaning given in clause 8.2.
Tax means a tax, levy, duty, rate, charge, deduction or withholding, however it is
described, that is imposed by law or by a Government Agency, together with any
related interest, penalty, fine or other charge.
Transfer Land means land forming part of the Public Benefit that is to be either
dedicated or transferred to the City in accordance with Schedule 3 of this
document.
Trunk Drain Design Option X refers to design option for the trunk drain as
shown on the drawing attached at Annexure B.
Trunk Drain Design Option Y refers to design option for the trunk drain as shown
on the drawing attached at Annexure C.
1.2 Rules for interpreting this document
Headings are for convenience only, and do not affect interpretation. The following
rules also apply in interpreting this document, except where the context makes it
clear that a rule is not intended to apply.
(a) A reference to:
(i) a legislative provision or legislation (including subordinate legislation)
is to that provision or legislation as amended, re-enacted or replaced,
and includes any subordinate legislation issued under it;
(ii) a document (including this document) or agreement, or a provision of
a document (including this document) or agreement, is to that
document, agreement or provision as amended, supplemented,
replaced or novated;
(iii) a party to this document or to any other document or agreement
includes a permitted substitute or a permitted assign of that party;
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(iv) a person includes any type of entity or body of persons, whether or
not it is incorporated or has a separate legal identity, and any
executor, administrator or successor in law of the person; and
(v) anything (including a right, obligation or concept) includes each part
of it.
(b) A singular word includes the plural, and vice versa.
(c) A word which suggests one gender includes the other genders.
(d) If a word or phrase is defined, any other grammatical form of that word or
phrase has a corresponding meaning.
(e) If an example is given of anything (including a right, obligation or concept),
such as by saying it includes something else, the example does not limit the
scope of that thing.
(f) A reference to including means “including, without limitation”.
(g) A reference to dollars or $ is to an amount in Australian currency.
(h) A reference to this document includes the agreement recorded by this
document.
(i) Words defined in the GST Act have the same meaning in clauses about GST.
(j) This document is not to be interpreted against the interests of a party merely
because that party proposed this document or some provision in it or
because that party relies on a provision of this document to protect itself.
2. APPLICATION OF THE ACT AND THE REGULATION
2.1 Application of this document
This document is a planning agreement within the meaning of section 7.4 of the
Act and applies to:
(a) the Land; and
(b) the Development.
2.2 Public Benefits to be made by Developer
Clause 5.1 and Schedule 3 set out the details of the:
(a) Public Benefits to be delivered by the Developer;
(b) time or times by which the Developer must deliver the Public Benefits; and
(c) manner in which the Developer must deliver the Public Benefits.
2.3 Application of sections 7.11, 7.12 and 7.24 of the Act
The application of sections 7.11, 7.12 and 7.24 of the Act are excluded to the
extent set out in Items 5 and 6 of Schedule 2 to this document.
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2.4 City rights
This document does not impose an obligation on the City to:
(a) grant Development Consent for the Development; or
(b) exercise any function under the Act in relation to a change to an
environmental planning instrument, including the making or revocation of
an environmental planning instrument.
2.5 Explanatory note
The explanatory note prepared in accordance with clause 25E of the Regulation
must not be used to assist in construing this document.
3. OPERATION OF THIS PLANNING AGREEMENT
3.1 Commencement
This document will commence on the date of execution of this document by all
parties to this document.
3.2 Property 2 Landowner obligations
The parties acknowledge and agree that the Property 2 Landowner has agreed to
be a party to this document solely in its capacity as landowner of part of the land
on which the Public Benefits will be provided.
4. WARRANTIES
4.1 Mutual warranties
Each party represents and warrants that:
(a) (power) it has full legal capacity and power to enter into this document and
to carry out the transactions that it contemplates;
(b) (corporate authority) it has taken all corporate action that is necessary or
desirable to authorise its entry into this document and to carry out the
transactions contemplated;
(c) (Authorisations) it holds each Authorisation that is necessary or desirable
to:
(i) enable it to properly execute this document and to carry out the
transactions that it contemplates;
(ii) ensure that this document is legal, valid, binding and admissible in
evidence; or
(iii) enable it to properly carry on its business as it is now being conducted,
and it is complying with any conditions to which any of these Authorisations
is subject;
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(d) (documents effective) this document constitutes its legal, valid and
binding obligations, enforceable against it in accordance with its terms
(except to the extent limited by equitable principles and laws affecting
creditors' rights generally), subject to any necessary stamping or
registration;
(e) (solvency) there are no reasonable grounds to suspect that it will not be
able to pay its debts as and when they become due and payable; and
(f) (no controller) no controller is currently appointed in relation to any of its
property, or any property of any of its subsidiaries.
4.2 Developer warranties
(a) The Developer warrants to the City that, at the date of this document:
(i) it is the registered proprietor of Property 1;
(ii) it is legally entitled to apply for all consents and approvals that are
required by this document and do all things necessary to give effect
to this document notwithstanding that the Developer is not the
registered proprietor of Property 2;
(iii) all work performed by the Developer and the Personnel under this
document will be performed with due care and skill and to a standard
which is equal to or better than that which a well experienced person
in the industry would expect to be provided by an organisation of the
Developer’s size and experience; and
(iv) it is not aware of any matter which may materially affect the
Developer’s ability to perform its obligations under this document.
(b) The Developer warrants to the City that, prior to commencing delivery of the
Public Benefits it will have obtained all Authorisations and insurances
required under any Law to carry out its obligations under this document.
4.3 Property 2 Landowner warranties
The Property 2 Landowner warrants to the City that, at the date of this document:
(a) it is the registered proprietor of Property 2;
(b) it is legally entitled to seek all consents and approvals that are required by
this document and do all things necessary to give effect to this document;
(c) it is not aware of any matter which may materially affect the Property 2
Landowner’s ability to perform its obligations under this document.
5. PUBLIC BENEFITS
5.1 Developer to provide Public Benefits
The Developer must, at its cost and risk, provide the Public Benefits to the City in
accordance with this document.
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5.2 Trunk Drainage design election
By the later of:
(a) the date which is 12 months after the date of this document; and
(b) the date which is 28 days after the development consent for Phase 2 of the
Development is issued,
(Notice Date), the City must provide the Developer with written notice
nominating whether the trunk drainage works are to proceed in accordance with:
(c) Trunk Drain Design Option X; or
(d) Trunk Drain Design Option Y.
5.3 Resequencing of Public Benefits
(a) The parties acknowledge that the Developer may seek to amend the
sequencing of the Public Benefits as set out in Schedule 3.
(b) The City agrees to consider any reasonable proposal by the Developer to
amend the sequencing of the Public Benefits as contemplated in clause (a)
above provided that in relation to any Public Benefits that have been brought
forward from a later Phase to an earlier Phase, the Developer:
(i) agrees to both commence and complete any such Public Benefits in
the earlier Phase; and
(ii) ensures that any such Public Benefits reach Completion on or before
the date of issue of an Occupation Certificate for the relevant building
or buildings which are delivered in the earlier Phase.
(c) If the parties agree to an amendment to the sequencing of the Public
Benefits, the Developer will be required to provide the Public Benefits in
accordance with the agreed amended sequencing and the Guarantee
Amount for each Phase will be adjusted so that:
(i) the value of the DCP Works Guarantee for each Phase is equal to the
Attributed Value of that part of the DCP Public Benefits described as
"DCP Public Benefits (works)" in Schedule 3 to be provided as part of
the relevant Phase in accordance with the amended sequencing; and
(ii) the value of the S7.11 Works Guarantee for each Phase is equal to the
Attributed Value of that part of the Public Benefits described as "S7.11
Works" in Schedule 3 to be provided as part of the relevant Phase in
accordance with the amended sequencing.
6. SECTION 7.11 PUBLIC BENEFITS
6.1 Subject to clause 5.1
The Developer acknowledges and agrees that nothing in this clause 6 affects the
Developer’s obligation to provide the Public Benefits as specified in clause 5.1 of
this document.
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6.2 Adjustment of Attributed Value of Section 7.11 Public Benefits
(a) If the Developer and the City agree to vary the scope or standard of any of
the Section 7.11 Public Benefits, the Attributed Value that relates to the
varied Section 7.11 Public Benefits will be adjusted as follows:
(i) the Developer must engage a Quantity Surveyor to value the variation
to the scope and or standard of the relevant Section 7.11 Public
Benefits and its associated Attributed Value and prepare a written of
this (Report);
(ii) the Developer must provide the Report to the City as soon as possible;
and
(iii) the parties must approve the Attributed Value that relates to the
varied Section 7.11 Public Benefits as detailed in the Report.
(b) The Developer and the City acknowledge and agree that any increase in the
scope of Section 7.11 Public Benefits will require the parties to negotiate in
good faith a deed of amendment to this document.
6.3 Ability to offset against section 7.11 obligations
The City acknowledges and agrees that the Attributed Value for the Section 7.11
Public Benefits will be offset against the total Section 7.11 Monetary Contributions
due for the Development, irrespective of:
(a) the actual value of the Section 7.11 Public Benefits; and
(b) the due date specified for the payment of Section 7.11 Monetary
Contributions, in accordance with the methodology set out in clauses 5.3
and 7.
6.4 Section 7.11 Credits
(a) The parties acknowledge and agree that a Section 7.11 Credit for a particular
Phase can be applied against Section 7.11 Monetary Contributions payable
for other Phases.
Note: By way of example, where Section 7.11 Monetary Contributions
payable for a particular Phase exceed the value of the Section 7.11 Public
Benefits associated with that Phase, the Developer may use any Section
7.11 Credits to satisfy the Section 7.11 Monetary Contribution payable.
(b) The Developer acknowledges and agrees that the existence of a Section 7.11
Credit does not entitle the Developer to:
(i) any refund of the value of the Section 7.11 Credit; or
(ii) any other concession to the value of the Section 7.11 Credit.
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6.5 Ability to carry forward
If the total value of Section 7.11 Monetary Contributions for a particular Phase
does not equal the total value of Section 7.11 Public Benefits associated with that
Phase, the parties acknowledge and agree that:
(a) Section 7.11 Monetary Contributions otherwise payable for that Phase may
be deferred to future Phases; and
(b) Section 7.11 Credits may be carried forward to future Phases.
6.6 Treatment of section 7.11 obligations
The parties acknowledge and agree that where the Attributed Value for a Phase:
(a) exceeds the Section 7.11 Monetary Contributions that would otherwise be
payable under a condition of any Stage 2 Development Consent for the
relevant Phase,
(i) the Section 7.11 Public Benefits that relate to the relevant Stage 2
Development Consent will fully satisfy the obligation to pay Section
7.11 Monetary Contributions for that Phase; and
(ii) a Section 7.11 Credit will be created; and
(b) is less than the Section 7.11 Monetary Contributions that would otherwise
be required under a condition of any Stage 2 Development Consent for the
relevant Phase:
(i) the Section 7.11 Public Benefits will partially satisfy the obligation to
pay Section 7.11 Monetary Contributions for that Phase to the full
extent of the Attributed Value; and
(ii) the Developer will apply a Section 7.11 Credit in relation to the
difference.
7. SECTION 7.11 RECONCILIATIONS
7.1 General
The Developer acknowledges and agrees that although this document allows for
Section 7.11 Monetary Contributions otherwise payable for a particular Phase to
be deferred to future Phases under the reconciliation mechanism described in this
clause 7, the liability of the Developer to pay Section 7.11 Monetary Contributions
to the City is imposed pursuant to the relevant Stage 2 Development Consent for
each Phase and not under this document.
7.2 End of Development Reconciliation
(a) By the Reconciliation Date, the Developer shall calculate the sum of each of:
(i) the Section 7.11 Monetary Contributions payable under the terms of
each Development Consent for Phases 1 to 7 inclusive (Monetary
Contribution Obligation); and
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(ii) the Attributed Value of the Section 7.11 Public Benefits that have been
delivered which are associated with Phases 1 to 7 inclusive (Total
Attributed Value).
(b) The Developer shall provide to the City, for its approval, the calculations
contemplated in clause 7.2(a) on the Reconciliation Date.
(c) The Residual Contribution Amount shall be calculated as follows:
A – B = Residual Contribution Amount
where
A = Monetary Contribution Obligation
B = Total Attributed Value
(d) Subject to clause 7.2(e), where the Residual Contribution Amount:
(i) is greater than zero, the Developer shall pay the Residual Contribution
Amount to the City within 28 days of the Reconciliation Date; and
(ii) is less than zero, the Developer acknowledges and agrees that it is
not entitled to any refund or concession of the amount by which the
Residual Contribution Amount is less than zero.
(e) If there is a Dispute in relation to the Residual Contribution Amount:
(i) the Developer shall pay the portion of the Residual Contribution
Amount which is not in dispute within 28 days of the Reconciliation
Date; and
(ii) if the Residual Contribution Amount as determined following the
procedure set out in clause 13 generates:
(A) an amount payable by the Developer in addition to any amount
paid pursuant to clause 7.2(e)(i), any such amount must be
paid by the Developer to the City within 28 days of that Dispute
being resolved; or
(B) an amount to be refunded to the Developer, having regard to
any amount paid pursuant to clause 7.2(e)(i), any such amount
must be paid by the City to the Developer within 28 days of that
Dispute being resolved.
8. COMPLETION
8.1 Date of Completion
Subject to clause 8.2, the Developer must ensure that the Developer’s Works reach
Completion on or before the applicable date or milestone referred to in the table
to clause 1 of Schedule 3 of this document.
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8.2 Sunset Date for Completion
(a) The Developer’s Works associated with the construction of Phases 1 to 4
inclusive must reach Completion on or before the date which is 7 years after
the date of issue of the first Construction Certificate for any of buildings B,
C, A, D and E (the “Sunset Date”).
(b) If the Developer has not complied with its obligations under clause 8.2 by
the Sunset Date, the City may exercise its rights under clause 13 in respect
of Developer’s Works which were required to have been provided by the
Sunset Date, but have not been provided.
8.3 Developer completion notice
When, in the reasonable opinion of the Developer, the Developer’s Works have
reached Completion, the Developer must notify the City’s Representative in writing
and must include in that notice:
(a) a statement from the person with direct responsibility and supervision of
that work that in their opinion the Developer’s Works have reached
Completion;
(b) copies of any warranties, guarantees, maintenance information or other
material reasonably required for the City to assume responsibility for the
Developer’s Works; and
(c) at least three sets of the “as built” drawings of the Developer’s Works,
including one set in electronic format,
(Completion Notice). For the avoidance of doubt, the Developer can issue
separate Completion Notices at separate times for different elements of the
Developer’s Works, however the Developer must ensure that Completion is
achieved for the Developer’s Works before the applicable due date specified in
Item 1 of Schedule 3.
8.4 Inspection by the City
(a) The City’s Representative must inspect the Developer’s Works within 5
Business Days of the date that the Completion Notice is received by the City.
The City’s Representative may refuse to complete the inspection until the
Completion Notice has been issued with all required documentation attached
in accordance with clause 8.3. Within 10 Business Days of the date of the
inspection by the City’s Representative, the City must by written notice to
the Developer:
(i) state that Completion has been achieved;
(ii) state that Completion has not been achieved and, if so, identify the
Defects, errors or omissions which, in the opinion of the City’s
Representative, prevent Completion; or
(iii) issue a notice under clause 8.5(a).
(b) Nothing in this clause 8.4, or any notice issued under this clause 8.4, will:
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(i) reduce or waive in any manner the Developer’s responsibility to:
(A) deliver the Developer’s Works in accordance with this
document; or
(B) the Developer’s responsibility to correct Defects, errors or
omissions, whether or not these are identified by the City; or
(ii) create any liability for the City in relation to any defective aspect of
the Developer’s Works.
8.5 Non-completion of Public Benefits
(a) If the Developer makes a request by notice in writing not to complete the
Public Benefits (or any part of the Public Benefits):
(i) the City may permit the Developer not to complete the Public Benefits
(or any part of the Public Benefits) by issuing a notice in writing to the
Developer stating that completion of the items identified in that notice
is not required to fulfil the Developer’s obligations under this
document; and
(ii) the City may make a claim on the S7.11 Works Guarantee or DCP
Works Guarantee (as relevant) for the Phase for which the Public
Benefit is not being delivered by the Developer in such amount as the
City considers necessary to complete the portion of Public Benefit not
being delivered by the Developer.
(b) If the Developer fails to complete the whole of the Public Benefits in the form
and to the standards required under the Development Consent or this
document then the City may either:
(i) complete the Public Benefits itself, including by exercising its right to
compulsorily acquire the Transfer Land in accordance with clause 13.5
of this document; or
(ii) modify the Public Benefits to reasonably achieve the objectives
identified in the Development Consent and this document,
and may recover all costs of and reasonably incidental to that work from the
Developer. The City can claim on the Guarantees for the Phases for which
the relevant Public Benefits have not been satisfactorily completed in order
to exercise this right, in which case the provisions of clause 12 will apply.
To the extent that the City’s costs exceed the amount of the relevant
Guarantees, the City can recover this amount from the Developer as a debt
due and owing to the City.
(c) If the City exercises its rights under this clause 8.5 to complete the Public
Benefits, the Developer grants the City a non-exclusive licence for the period
necessary for the City to access the Land to carry out, or procure the
carrying out, of the Public Benefits.
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9. INDEMNITY
The Developer indemnifies the City against all damage, expense, loss or liability of
any nature suffered or incurred by the City arising from any act or omission by the
Developer (or any Personnel) in connection with the performance of the
Developer’s obligations under this document, except where the damage, expense,
loss or liability suffered or incurred is caused by, or contributed to by, any wilful
or negligent act or omission of the City (or any person engaged by the City).
10. DEFECTS LIABILITY
10.1 Security for Defects Liability Period
Until the expiry of the relevant Defects Liability Period, the City may retain from
the Guarantee an amount equal to 10% of the Attributed Value of the Developer’s
Works as security for the Developer’s performance of its obligations under this
clause 10. The Developer must make any necessary arrangements to allow the
provision of the Guarantee for the Defects Liability Period in accordance with this
clause.
10.2 Defect in the Public Benefits
(a) If:
(i) the Developer is in breach of clause 5.1 of this document; or
(ii) the City notifies the Developer of a Defect in the Public Benefits within
the Defects Liability Period,
then, following written notice from the City, the Developer must promptly
correct or replace (at the Developer’s expense) the defective elements of
the Public Benefits.
(b) If the Developer is unable or unwilling to comply with clause 10.2(a), or fails
to rectify the Defect within three months of receiving notice from the City
under clause 10.2(a), the City may:
(i) rectify the Defect itself;
(ii) make a claim on the Guarantee in accordance with clause 12 for the
reasonable costs of the City in rectifying the Defect; and
(iii) to the extent the costs incurred to rectify the Defect exceeds the
Guarantee, recover the reasonable costs from the Developer as a debt
due and owing to the City.
(c) If the City requires access to the Land to rectify any Defect, the Developer
grants the City and its contractors a non-exclusive licence for such period as
is necessary for the City and its contractors to access the Land to carry out,
or procure the carrying out, of the rectification works.
10.3 Maintenance of the Public Benefits
(a) The Developer must, to the extent required under this document, maintain
the Public Benefits:
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(i) as contemplated by item 9 of Schedule 1; and
(ii) for the period of 12 months from the date on which the Developer’s
Works reach Completion.
(b) Without limiting or otherwise restricting any other provision of this
document, the Developer warrants to the City that the Developer:
(i) has the skill, competence, resources, commitment and experienced
personnel available to undertake the maintenance works and that all
personnel used by the Developer to undertake the maintenance works
possess the appropriate skills;
(ii) at all times will be suitably qualified and experienced, and shall
exercise due skill, care and diligence in the carrying out and
completion of the maintenance works; and
(iii) will ensure that the maintenance works:
(A) will be fit for purpose;
(B) comply with all legislative requirements; and
(C) comply with all the requirements of this document.
(b) If the Developer requires access to any part of the Land owned by the City
to complete the Public Benefits referred to in this clause 10.3, the City
grants the Developer a licence for the period necessary for the Developer to
access the Land to carry out, or procure the carrying out, of the Public
Benefits referred to in this clause 10.3.
11. REGISTRATION AND CAVEAT
11.1 Registration of this document
(a) The Developer:
(i) consents to the registration of this document and any variation to it
at NSW Land Registry Services on the certificate of title to Property 1;
(ii) warrants that it has obtained all consents to the registration of this
document on the certificate of title to Property 1; and
(iii) must within 20 Business Days of a written request from the City do all
things necessary to allow the City to register this document on the
certificate of title to Property 1, including but not limited to:
(A) producing any documents or letters of consent required by the
Registrar-General of NSW Land Registry Services;
(B) providing the production slip number when the Developer
produces the certificate of title to Property 1 at NSW Land
Registry Services; and
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(C) providing the City with a cheque for registration fees payable in
relation to registration of this document at NSW Land Registry
Services.
(iv) The Developer must act promptly in complying with and assisting to
respond to any requisitions raised by NSW Land Registry Services that
relate to registration of this document.
(b) The Property 2 Landowner:
(i) consents to the registration of this document and any variation to it
at NSW Land Registry Services on the certificate of title to Property 2;
(ii) warrants that it will formally request all consents to the registration of
this document on the certificate of title to Property 2 within 20
Business Days of the execution of this document by all parties; and
(iii) must within 20 Business Days of a written request from the City do
the following to allow the City to register this document on the
certificate of title to Property 2:
(A) producing any title documents required by the Registrar-
General of NSW Land Registry Services;
(B) providing any letters of consent to registration of this document
on the certificate of title to Property 2 which have been provided
to the Property 2 Landowner; and
(C) providing the production slip number when the Developer
produces the certificate of title to Property 2 at NSW Land
Registry Services,
(iv) The Developer must provide the City with a cheque for registration
fees payable in relation to registration of this document at NSW Land
Registry Services.
(v) The Developer must act promptly in complying with and assisting to
respond to any requisitions raised by NSW Land Registry Services that
relate to registration of this document.
11.2 Caveat
(a) The City may, at any time after the date of this document, register a caveat
over the Land preventing any dealing with the Land that is inconsistent with
this document. Provided that the City complies with this clause 11.2(a), the
Developer must not object to the registration of this caveat and may not
attempt to have the caveat removed from the certificate of title to the Land.
(b) In exercising its rights under this clause 11.2(a) the City must do all things
reasonably required to:
(i) remove the caveat from the Land once this document has been
registered on the certificate of title to the Land; and
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(ii) consent to the registration of:
(A) this document; and
(B) any plan of consolidation, plan of subdivision or other dealing
required by this document or the Development Consent.
11.3 Release of this document
(a) If the Developer has provided all Public Benefits and otherwise complied with
this document then the City must promptly do all things reasonably required
to remove this document from the applicable certificate of title to the Land.
(b) Without limiting clause 11.3(a), the City acknowledges that the Developer
may apply for one or more Phase Subdivisions (subject to obtaining and in
accordance with an Authorisation). If the Developer has provided all Public
Benefits required to be provided in connection with a Phase and otherwise
complied with this document then the City must promptly do all things
reasonably required to remove this document from the applicable certificate
of title for the relevant Phase.
12. PROVISION OF GUARANTEE
12.1 Developer to provide Guarantee
The Developer must deliver the Guarantee for the Guarantee Amount as indexed
in accordance with clause 12.4 to the City by the Guarantee Amount Due Date,
noting that this may be by way of the provision of one or more guarantees which
together equal the Guarantee Amount.
12.2 Developer to provide a Monetary Contributions Notice
(a) Prior to making an application for a construction certificate for a Phase or
providing the City with a Guarantee for a Phase, the Developer must give
the City written notice of the Developer's intention to apply for a construction
certificate and provide a Guarantee for that Phase (Monetary Contribution
Notice).
(b) A Monetary Contribution Notice must set out:
(i) the amount of all Guarantees currently held by the City for any
previous Phases and the purpose for which each of the Guarantees is
held;
(ii) the amount of Section 7.11 Monetary Contributions payable for that
Phase;
(iii) the amount of any S7.11 Works Guarantee required for that Phase;
(iv) the amount of any DCP Works Guarantee required for that Phase;
(v) the calculation of the Shortfall for that Phase;
(vi) the calculation of the Cumulative Shortfall (if any) as at the beginning
of the Phase;
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(vii) subject to clause 12.2(c), the amount of any Shortfall Guarantee
required for the Phase;
(viii) details of indexation applied in accordance with clause 12.4 in order
to calculate:
(A) the S7.11 Works Guarantee Amount for the Phase;
(B) the DCP Works Guarantee Amount for the Phase; and
(C) the Attributed Value of any Public Benefits described as "S7.11
Land Dedication" and "S7.11 Works' in Schedule 3 for the
Phase; and
(ix) whether the Developer is seeking the City’s consent as contemplated
by clause 12.2(d).
(c) If the amount of the Shortfall Guarantee for a Phase is less than or equal to
zero, then the Developer will not be required to provide a Shortfall
Guarantee for that Phase.
(d) If a Monetary Contributions Notice shows that the value of all Shortfall
Guarantees held by the City at the beginning of a Phase exceeds the
Cumulative Shortfall as at the beginning of that Phase (SG Excess), the
Developer may request the City's consent to apply the SG Excess towards
the S7.11 Works Guarantee for the relevant Phase, such consent not to be
unreasonably withheld.
12.3 City to approve or reject Monetary Contribution Notice
(a) Within 28 days of receiving a Monetary Contributions Notice for a Phase in
accordance with clause 12.2, the City must confirm in writing:
(i) whether or not it agrees with the matters set out in the Monetary
Contributions Notice and if not, the reasons it does not agree; and
(ii) whether it consents to any request by the Developer in accordance
with clause 12.2(d) and if not, the reasons for withholding its consent.
(b) If the City notifies the Developer that it does not agree with any matters set
out in the Monetary Contributions Notice in accordance with
clause 12.3(a)(i):
(i) the Developer may submit an updated Monetary Contributions Notice
to the City with 14 days of receiving that notice; and
(ii) clause 12.3(a) applies to the updated Monetary Contributions Notice
as if it were a Monetary Contributions Notice submitted under
clause 12.2(a).
(c) Where the City does not:
(i) agree with the matters set out in a Monetary Contributions Notice
submitted by the Developer in accordance with clause 12.3(b)(i); or
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(ii) provide its consent to a request made by the Developer under clause
12.2(d),
a Dispute will be taken to have arisen between the parties for the purposes
of clause 14 of this document and will be subject to the procedures set out
in clause 14.
12.4 Indexation
(a) On the date that a Monetary Contribution Notice is provided for a Phase in
accordance with clause 12.2, the DCP Works Guarantee Amount for the
Phase, the S7.11 Works Guarantee Amount for the Phase and the Attributed
Value of any Public Benefits described as "S7.11 Land Dedication" and
"S7.11 Works' in Schedule 3 for the Phase are to be adjusted to a revised
amount by applying the following formula:
RV = V x (W/111.3)
Where:
RV is the revised Guarantee Amount or Attributed Value (as relevant)
applicable from the date of the Monetary Contribution Notice;
V is the DCP Works Guarantee Amount shown in Item 7A of Schedule 1,
the S7.11 Works Guarantee Amount shown in Item 7B of Schedule 1
or the Attributed Value of Public Benefits shown in Schedule 3 for the
Phase (as relevant); and
W is the Index Number most recently published before the date on which
the Monetary Contribution Notice is being provided.
12.5 Adjustment of Guarantee Amount
If requested by the City, on each anniversary of the date of the Guarantee (the
“Adjustment Date”), the Guarantee Amounts are to be adjusted to a revised
amount by applying the following formula:
RGA = GA x (A/B)
where:
RGA is the revised guarantee amount applicable from the relevant Adjustment
Date
GA is the Guarantee Amount that is current on the relevant Adjustment Date
A is the Index Number most recently published before the relevant
Adjustment Date
B is the Index Number most recently published:
(i) before the date of the Guarantee for the first Adjustment Date; and
(ii) before the preceding Adjustment Date for every subsequent
Adjustment Date
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If after the formula is applied the revised Guarantee Amount will be less than the
amount held at the preceding Adjustment Date, the Guarantee Amount will not be
adjusted.
13. ENFORCEMENT
13.1 Right of City to claim on Guarantee
(a) The Developer agrees that the City may make an appropriation from the
Guarantee for a Phase in such amount as the City, acting reasonably, thinks
appropriate if:
(i) the Developer fails to comply with clause 4.2 of Schedule 3 of this
document (provision of detailed design drawings and detailed costs
estimate for the relevant Phase);
(ii) the City allows the Developer not to complete the Public Benefits for
that Phase, or any part of them, in accordance with clause 8.5(a)(ii);
(iii) an Insolvency Event occurs in respect of the Developer;
(iv) the Developer fails to deliver the Public Benefits for that Phase in
accordance with clause 8.5(b);
(v) the Developer fails to rectify a Defect in the Public Benefits for that
Phase accordance with clause 10.2 of this document;
(vi) the detailed designs for the Developer’s Works for that Phase are not
finalised between the parties within 12 months of the date of issue of
a Construction Certificate that approves the construction of any
structures above the ground floor of the relevant Phase of the
Development;
(vii) the Developer’s Works do not reach Completion:
(A) for Phases 1 to 4 inclusive, by the Sunset Date; and
(B) for each of Phases 5 to 7 inclusive, within 36 months of the date
of issue of the first Construction Certificate in respect of the
relevant Phase of the Development (or such later time as agreed
by the City in writing); or
(C) the City incurs any other expense or liability in exercising its
rights and powers under this document.
(b) Any amount of the Guarantee appropriated by the City in accordance with
clause 13.1(a) must be applied only towards:
(i) the costs and expenses incurred by the City rectifying any default by
the Developer under this document; and
(ii) carrying out any works required to achieve the Public Benefits.
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13.2 Expenditure by the City
If the City claims on the Guarantee to Complete the Developer’s Works, then the
City:
(a) is not required to expend more money than the Guarantee Amount and may
elect not to carry out items of the Developer’s Works to ensure that those
works can be carried out for an amount equal to or less than the Guarantee
Amount; or
(b) may expend more than the Guarantee Amount. If the City expends more
money than the Guarantee Amount then the amount in excess of the
Guarantee Amount will be deemed to be a debt due and owing to the City
by the Developer.
13.3 Top-up of Guarantee
If the City calls upon a Guarantee in accordance with this clause 13 then the
Developer must immediately provide to the City a replacement Guarantee to
ensure that, at all times until the relevant Guarantee is released in accordance
with paragraph 13.4, the City is in possession of a Guarantee for a face value
equivalent to the Guarantee Amount.
13.4 Return of Guarantee
(a) If:
(i) the monies secured by a Guarantee have not been expended;
(ii) the City has concurred with Completion in accordance with clause
8.4(a)(i) of this document, taking into account any approved non-
completion of Public Benefits approved by clause 8.5(a) of this
document; and
(iii) the Developer has complied with its obligations under clause 7.2(d) if
the time for compliance with those obligations has arisen;
(iv) the City has been provided with the security for the Defects Liability
Period in accordance with clause 10.1,
then the City will promptly return 90% of the DCP Works Guarantee and
S7.11 Works Guarantee (as relevant) for the relevant Phase for which the
Public Benefits have achieved Completion to the Developer following the
issue of a notice pursuant to clause 8.4(a)(i) of this document. For the
avoidance of doubt, the parties contemplate that this clause permits the
progressive return of relevant portions of the Guarantees referred to in
clause 12.1 in accordance with the Phases referred to in this document.
(b) If, following expiry of the Defects Liability Period, the City is satisfied that
all defects in the relevant Phase have been rectified in accordance with
clause 10 then the City must promptly return to the Developer the portion
of the Guarantee retained by the City as security for the Defects Liability
Period.
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13.5 Compulsory acquisition
If the Developer or Property 2 Landowner (as relevant) fail to transfer or dedicate
any part of the Transfer Land falling within Property 1 or Property 2 respectively,
to the City in accordance with Schedule 3 of this document then the City may
compulsorily acquire that land for the amount of $1.00 in accordance with the Land
Acquisition (Just Terms Compensation) Act 1991 (NSW). The City and the
Developer and Property 2 Landowner agree that:
(a) this clause 13.5 is an agreement between the Developer or Property 2
Landowner (as relevant) and the City for the purposes of section 30 of the
Land Acquisition (Just Terms Compensation) Act 1991 (NSW);
(b) in this clause 13.5 the Developer or Property 2 Landowner (as relevant) and
the City have agreed on all relevant matters concerning the compulsory
acquisition and the compensation to be paid for the acquisition; and
(c) the Developer must pay the City, promptly on demand, an amount
equivalent to all costs incurred by the City in acquiring the whole or any part
of the Transfer Land as contemplated by this clause 13.5.
14. DISPUTE RESOLUTION
14.1 Application
Any Dispute must be determined in accordance with the procedure in this
clause 14.
14.2 Negotiation
(a) If any Dispute arises, a party to the Dispute (Referring Party) may by
giving notice to the other party or parties to the Dispute (Dispute Notice)
refer the Dispute to the Developer’s Representative, the Property 2
Landowner’s Representative and the City’s Representative for resolution.
The Dispute Notice must:
(i) be in writing;
(ii) state that it is given pursuant to this clause 14; and
(iii) include or be accompanied by reasonable particulars of the Dispute
including:
(A) a brief description of the circumstances in which the Dispute
arose;
(B) references to any:
(aa) provisions of this document; and
(bb) acts or omissions of any person,
relevant to the Dispute; and
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(C) where applicable, the amount in dispute (whether monetary or
any other commodity) and if not precisely known, the best
estimate available.
(b) Within 10 Business Days of the Referring Party issuing the Dispute Notice
(Resolution Period), the Developer’s Representative, the Property 2
Landowner’s Representative and the City’s Representative must meet at
least once to attempt to resolve the Dispute.
(c) The Developer’s Representative, the Property 2 Landowner’s Representative
and the City’s Representative may meet more than once to resolve a
Dispute. The Developer’s Representative, the Property 2 Landowner’s
Representative and the City’s Representative may meet in person, via
telephone, videoconference, internet-based instant messaging or any other
agreed means of instantaneous communication to effect the meeting.
14.3 Not use information
The purpose of any exchange of information or documents or the making of any
offer of settlement under this clause 14 is to attempt to settle the Dispute. Neither
party may use any information or documents obtained through any dispute
resolution process undertaken under this clause 14 for any purpose other than in
an attempt to settle the Dispute.
14.4 Condition precedent to litigation
Subject to clause 14.5, a party must not commence legal proceedings in respect
of a Dispute unless:
(a) a Dispute Notice has been given; and
(b) the Resolution Period has expired.
14.5 Summary or urgent relief
Nothing in this clause 14 will prevent a party from instituting proceedings to seek
urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
15. TAXES AND GST
15.1 Responsibility for Taxes
(a) The Developer is responsible for any and all Taxes and other like liabilities
which may arise under any Commonwealth, State or Territory legislation (as
amended from time to time) as a result of or in connection with this
document or the Public Benefits.
(b) The Developer must indemnify the City in relation to any claims, liabilities
and costs (including penalties and interest) arising as a result of any Tax or
other like liability for which the Developer is responsible under
clause 15.1(a).
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15.2 GST free supply
To the extent that Divisions 81 and 82 of the GST Law apply to a supply made
under this document:
(a) no additional amount will be payable by a party on account of GST; and
(b) no tax invoices will be exchanged between the parties.
15.3 Supply subject to GST
To the extent that clause 15.2 does not apply to a supply made under this
document, this clause 15.3 will apply.
(a) If one party (Supplying Party) makes a taxable supply and the
consideration for that supply does not expressly include GST, the party that
is liable to provide the consideration (Receiving Party) must also pay an
amount (GST Amount) equal to the GST payable in respect of that supply.
(b) Subject to first receiving a tax invoice or adjustment note as appropriate,
the receiving party must pay the GST amount when it is liable to provide the
consideration.
(c) If one party must indemnify or reimburse another party (Payee) for any
loss or expense incurred by the Payee, the required payment does not
include any amount which the Payee (or an entity that is in the same GST
group as the Payee) is entitled to claim as an input tax credit, but will be
increased under clause 15.3(a) if the payment is consideration for a taxable
supply.
(d) If an adjustment event arises in respect of a taxable supply made by a
Supplying Party, the GST Amount payable by the Receiving Party under
clause 15.3(a) will be recalculated to reflect the adjustment event and a
payment will be made by the Receiving Party to the Supplying Party, or by
the Supplying Party to the Receiving Party, as the case requires.
(e) The Developer will assume the City is not entitled to any input tax credit
when calculating any amounts payable under this clause 15.3.
(f) In this document:
(i) consideration includes non-monetary consideration, in respect of
which the parties must agree on a market value, acting reasonably;
and
(ii) in addition to the meaning given in the GST Act, the term "GST"
includes a notional liability for GST.
16. DEALINGS
16.1 Dealing by the City
(a) The City may Deal with its interest in this document without the consent of
the Developer if the Dealing is with a Government Agency. The City must
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give the Developer notice of the Dealing within five Business Days of the
date of the Dealing.
(b) The City may not otherwise Deal with its interest in this document without
the consent of the Developer, such consent not to be unreasonably withheld
or delayed.
16.2 Dealing by the Developer and Property 2 Landowner
(a) On and from registration of this document in accordance with clause 11:
(i) the Developer may register a Phase Subdivision;
(ii) the Developer may register a plan of strata subdivision, and the City
consents to this document remaining registered only on the certificate
of title to the common property of the strata plan upon registration of
the strata plan;
(iii) the Developer must not, either in its capacity as the Developer or as
the owner of Property 1, otherwise Deal with this document to:
(A) a third party that is a purchaser of the whole or any part of
Property 1; or
(B) any other third party,
without:
(C) the prior written consent of the City; and
(D) the City, the Developer, the Property 2 Landowner and the third
party the subject of the Dealing entering into a Novation Deed
in respect of the Dealing;
(iv) the Property 2 Landowner must not otherwise Deal with this document
to:
(A) a third party that is a purchaser of the whole or any part of the
Property 2; or
(B) any other third party,
without:
(C) the prior written consent of the City; and
(D) the City, the Property 2 Landowner and the third party the
subject of the Dealing entering into a Novation Deed in respect
of the Dealing.
(b) For the avoidance of doubt, nothing in this clause 16prohibits or places any
restrictions on the Property 2 Landowner granting any lease or licence over
the whole or any part of Property 2, and the requirements of clause
16.2(a)(ii)do not apply in respect of any grant of a lease or licence over the
whole or any part of Property 2.
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(c) The Developer must pay the City’s reasonable costs and expenses relating
to any consent or documentation required due to the operation of this clause
16.2.
16.3 Extinguishment or creation of interests on Transfer Land and Easement
Land
(a) Prior to the dedication or transfer of the Transfer Land to the City, the
Developer or Property 2 Landowner (as relevant) must:
(i) extinguish all leases and licences over the Transfer Land; and
(ii) use their best endeavours to extinguish all redundant encumbrances
and those that, in the City’s opinion acting reasonably, would
unreasonably impede the intended use of all or any part of the
Transfer Land.
(b) Prior to the creation of the Easements the Developer or Property 2
Landowner (as relevant) must use their best endeavours to extinguish all
encumbrances that, in the City’s opinion acting reasonably, would
unreasonably impede the intended operation of the Easements.
(c) The Developer and Property 2 Landowner (as relevant) must comply with
any reasonable directions by the City relating to the Transfer Land, including
but not limited to the creation of any encumbrances over the Transfer Land.
17. TERMINATION
(a) The City may terminate this document by notice in writing to the Developer
if the Development Consent lapses or is surrendered by the Developer.
(b) If the Development Consent lapses or is surrendered by the Developer,
either the Developer or the Property 2 Landowner, may by notice in writing
to the City request the City to exercise its rights under clause 17(a) and the
City must consent to any such request.
(c) If the City terminates this document pursuant to clause 17(a) then:
(i) the rights of each party that arose before the termination or which
may arise at any future time for any breach or non-observance of
obligations occurring prior to the termination are not affected;
(ii) the Developer must take all steps reasonably necessary to minimise
any loss the each party may suffer as a result of the termination of
this document;
(iii) the City will return the Guarantee to the Developer after first
deducting any amounts owing to the City or costs incurred by the City
by operation of this document. If in exercising its rights under this
document the City expends more money than the Guarantee Amount
then the amount in excess of the Guarantee Amount will be deemed
to be a debt due and owing to the City by the Developer; and
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(iv) the City must within 10 Business Days, at the Developer’s cost, do all
things reasonably required to remove this document or any caveat
from the certificate(s) of title to the Land, including by signing a
request for removal of this document, or withdrawal of caveat, as
applicable.
18. CONFIDENTIALITY AND DISCLOSURES
18.1 Use and disclosure of Confidential Information
A party (receiving party) which acquires Confidential Information of another
party (disclosing party) must not:
(a) use any of the Confidential Information except to the extent necessary to
exercise its rights and perform its obligations under this document; or
(b) disclose any of the Confidential Information except in accordance with
clauses 18.2 or 18.3.
18.2 Disclosures to personnel and advisers
(a) The receiving party may disclose Confidential Information to an officer,
employee, agent, contractor, or legal, financial or other professional adviser
if:
(i) the disclosure is necessary to enable the receiving party to perform
its obligations or to exercise its rights under this document; and
(ii) prior to disclosure, the receiving party informs the person of the
receiving party's obligations in relation to the Confidential Information
under this document and obtains an undertaking from the person to
comply with those obligations.
(b) The receiving party:
(i) must ensure that any person to whom Confidential Information is
disclosed under clause 18.2(a) keeps the Confidential Information
confidential and does not use it for any purpose other than as
permitted under clause 18.2(a); and
(ii) is liable for the actions of any officer, employee, agent, contractor or
legal, financial or other professional adviser that causes a breach of
the obligations set out in clause 18.2(b)(i).
18.3 Disclosures required by law
(a) Subject to clause 18.3(b), the receiving party may disclose Confidential
Information that the receiving party is required to disclose:
(i) by law or by order of any court or tribunal of competent jurisdiction;
or
(ii) by any Government Agency, stock exchange or other regulatory body.
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(b) If the receiving party is required to make a disclosure under clause 18.3(a),
the receiving party must:
(i) to the extent possible, notify the disclosing party immediately it
anticipates that it may be required to disclose any of the Confidential
Information;
(ii) consult with and follow any reasonable directions from the disclosing
party to minimise disclosure; and
(iii) if disclosure cannot be avoided:
(A) only disclose Confidential Information to the extent necessary
to comply; and
(B) use reasonable efforts to ensure that any Confidential
Information disclosed is kept confidential.
18.4 Receiving party's return or destruction of documents
On termination of this document the receiving party must immediately:
(a) deliver to the disclosing party all documents and other materials containing,
recording or referring to Confidential Information; and
(b) erase or destroy in another way all electronic and other intangible records
containing, recording or referring to Confidential Information,
which are in the possession, power or control of the receiving party or of any
person to whom the receiving party has given access.
18.5 Security and control
The receiving party must:
(a) keep effective control of the Confidential Information; and
(b) ensure that the Confidential Information is kept secure from theft, loss,
damage or unauthorised access or alteration.
18.6 Media releases
(a) Subject to clause 18.6(b), the Developer must not issue any information,
publication, document or article for publication in any media concerning this
document or the Public Benefits without the City's prior written consent. The
City must respond to any such request for consent within two Business Days
and must not unreasonably withhold its consent.
(b) The restriction on the Developer specified in clause 18.6(a) does not apply
to any information, publication, document or article for publication in any
media which is issued by the Developer about the Development provided it
does not reference this document or the Public Benefits.
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19. TRUSTEE CAPACITY
19.1 Limitation of Liability – Greenland Golden Horse Investment Pty Ltd
(a) Greenland Golden Horse Investment Pty Ltd ACN 600 607 001 264 (GGH
Trustee Company) enters into this document solely in its capacity as
trustee for The Greenland Golden Horse Investment Trust ABN 60 504 131
(GGH Trust) and in no other capacity.
(b) A liability arising under or in connection with this document can be enforced
against the GGH Trustee Company only to the extent to which it can be
satisfied out of the property of the GGH Trust out of which the GGH Trustee
Company is actually indemnified for the liability.
(c) The limitation of the GGH Trustee Company’s liability contained in this clause
applies notwithstanding any other provision of this document and extends
to all liabilities of the GGH Trustee Company in connection with this
document.
(d) The other parties to this document may not sue the GGH Trustee Company
in any other capacity other than as trustee of the GGH Trust, including
seeking the appointment to the GGH Trustee Company of a receiver (except
in relation to the property of the GGH Trust), a liquidator, an administrator
or any other similar person.
(e) The provisions of this clause will not apply to any liability or obligation of the
GGH Trustee Company to the extent that there is a reduction in the extent
of its indemnification out of the assets of the GGH Trust as a result of the
operation of laws of Australia or the application of any provisions of the GGH
Trust’s constitution or to the extent that the GGH Trustee Company fails to
exercise any right of indemnity it has out of the assets of the GGH Trust.
19.2 Limitation of Liability – Greenland Golden Horse Investment No. 5 Pty Ltd
(a) Greenland Golden Horse Investment No. 5 Pty Ltd ACN 629 257 398 (No. 5
Trustee Company) enters into this document solely in its capacity as
trustee for The Greenland Golden Horse Investment Trust No. 5 ABN 98 501
855 702 (No. 5 Trust) and in no other capacity.
(b) A liability arising under or in connection with this document can be enforced
against the No. 5 Trustee Company only to the extent to which it can be
satisfied out of the property of the No. 5 Trust out of which the No. 5 Trustee
Company is actually indemnified for the liability.
(c) The limitation of the No. 5 Trustee Company’s liability contained in this
clause applies notwithstanding any other provision of this document and
extends to all liabilities of the No. 5 Trustee Company in connection with this
document.
(d) The other parties to this document may not sue the No. 5 Trustee Company
in any other capacity other than as trustee of the Trust, including seeking
the appointment to the No. 5 Trustee Company of a receiver (except in
relation to the property of the No. 5 Trust), a liquidator, an administrator or
any other similar person.
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(e) The provisions of this clause will not apply to any liability or obligation of the
No. 5 Trustee Company to the extent that there is a reduction in the extent
of its indemnification out of the assets of the No. 5 Trust as a result of the
operation of laws of Australia or the application of any provisions of the
Trust’s constitution or to the extent that the No. 5 Trustee Company fails to
exercise any right of indemnity it has out of the assets of the No. 5 Trust.
19.3 Trust representations and warranties
If a party enters into this document in its capacity as trustee of a trust (the party),
the party represents and warrants to the City that:
(a) it has power to enter into this document in its capacity as trustee of the
trust;
(b) it has the right to be indemnified to the value of the assets of the trust in
respect of obligations incurred by it under this document and has not done
anything to diminish its rights to be indemnified to the value of the assets
of the trust;
(c) there are and will remain at all times while the party has obligations under
this document, sufficient assets within the trust to ensure that the party is
able to comply with those obligations;
(d) the trust has been validly created and is in existence at the date of this
document and the trust will not vest or come to an end during the term of
this document;
(e) no proceedings of any description have been or are likely to be commenced
or threatened which could have a material adverse effect on the assets or
financial position of the trust or it's trusteeship of the trust; and
(f) it is to the commercial benefit of the trust that the party enters into this
document in its capacity, inter alia, as trustee of the trust.
19.4 Trustee obligations
If a party enters into this document in its capacity as trustee of a trust, that party
must:
(a) immediately notify the City in writing if it ceases to be the trustee of the
trust, and procure that any new trustee executes in favour of the City any
documents or guarantees which the City requires and which are no more
onerous than those required or obtained by the City under or in relation to
this document; and
(b) notify the City immediately in writing if the trust is determined or for any
reason ceases to exist, or if it is required or directed by any of the
beneficiaries of the trust to do any act or thing in relation to the trust or the
trust funds of the trust.
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20. NOTICES
(a) A notice, consent or other communication under this document is only
effective if it is in writing, signed and either left at the addressee's address
or sent to the addressee by mail, electronic mail or fax. If it is sent by mail,
it is taken to have been received 5 Business Days after it is posted. If it is
sent by fax, it is taken to have been received when the addressee actually
receives it in full and in legible form.
(b) A person's address, electronic mail and fax number are those set out in
Schedule 1 for the City’s Representative, the Property 2 Landowner’s
Representative and the Developer’s Representative, or as the person notifies
the sender in writing from time to time.
21. GENERAL
21.1 Governing law
(a) This document is governed by the laws of New South Wales.
(b) Each party submits to the exclusive jurisdiction of the courts exercising
jurisdiction in New South Wales, and any court that may hear appeals from
any of those courts, for any proceedings in connection with this document,
and waives any right it might have to claim that those courts are an
inconvenient forum.
21.2 Access to information
In accordance with section 121 of the Government Information (Public Access) Act
2009 (NSW), the Developer agrees to allow the City immediate access to the
following information contained in records held by the Developer:
(a) information that relates directly to the delivery of the Public Benefits by the
Developer;
(b) information collected by the Developer from members of the public to whom
the Developer provides, or offers to provide, services on behalf of the City;
and
(c) information received by the Developer from the City to enable the Developer
to deliver the Public Benefits.
21.3 Liability for expenses
(a) The Developer must pay its own and the City’s expenses incurred in
negotiating, executing, registering, releasing, administering and enforcing
this document.
(b) The Developer must pay for all reasonable costs and expenses associated
with the preparation and giving of public notice of this document and the
explanatory note prepared in accordance with the Regulations and for any
consent the City is required to provide under this document.
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(c) The Developer and the City acknowledge and agree that the Property 2
Landowner will not be responsible for any of the City's expenses associated
with negotiating, executing, registering, releasing, administering and
enforcing this document.
21.4 Role and relationship of parties
(a) Nothing in this document creates a joint venture, partnership, or the
relationship of principal and agent, or employee and employer between the
parties;
(b) No party has the authority to bind any other party by any representation,
declaration or admission, or to make any contract or commitment on behalf
of any other party or to pledge any other party’s credit; and
(c) The liability of the Developer and the Property 2 Landowner is joint and
several under this document for so long as the Developer and Property 2
Landowner are related bodies corporate within the meaning of section 50 of
the Corporations Act 2001 (Cth). If the whole or any part of Property 1 or
Property 2 is sold to a purchaser that is not a related body corporate of
either the Developer or Property 2 Landowner, then the liability of that
purchaser under this document will be several.
21.5 Giving effect to this document
Each party must do anything (including execute any document), and must ensure
that its employees and agents do anything (including execute any document), that
the other party may reasonably require to give full effect to this document.
21.6 Time for doing acts
(a) If:
(i) the time for doing any act or thing required to be done; or
(ii) a notice period specified in this document,
expires on a day other than a Business Day, the time for doing that act or
thing or the expiration of that notice period is extended until the following
Business Day.
(b) If any act or thing required to be done is done after 5pm on the specified
day, it is taken to have been done on the following Business Day.
21.7 Severance
If any clause or part of any clause is in any way unenforceable, invalid or illegal,
it is to be read down so as to be enforceable, valid and legal. If this is not possible,
the clause (or where possible, the offending part) is to be severed from this
document without affecting the enforceability, validity or legality of the remaining
clauses (or parts of those clauses) which will continue in full force and effect.
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21.8 Preservation of existing rights
The expiration or termination of this document does not affect any right that has
accrued to a party before the expiration or termination date.
21.9 No merger
Any right or obligation of any party that is expressed to operate or have effect on
or after the completion, expiration or termination of this document for any reason,
will not merge on the occurrence of that event but will remain in full force and
effect.
21.10 Waiver of rights
A right may only be waived in writing, signed by the party giving the waiver, and:
(a) no other conduct of a party (including a failure to exercise, or delay in
exercising, the right) operates as a waiver of the right or otherwise prevents
the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as a waiver
of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise of that right or
of any other right.
21.11 Operation of this document
(a) This document contains the entire agreement between the parties about its
subject matter. Any previous understanding, agreement, representation or
warranty relating to that subject matter is replaced by this document and
has no further effect.
(b) Any right that a person may have under this document is in addition to, and
does not replace or limit, any other right that the person may have.
(c) Any provision of this document which is unenforceable or partly
unenforceable is, where possible, to be severed to the extent necessary to
make this document enforceable, unless this would materially change the
intended effect of this document.
21.12 Operation of indemnities
(a) Each indemnity in this document survives the expiry or termination of this
document.
(b) A party may recover a payment under an indemnity in this document before
it makes the payment in respect of which the indemnity is given.
21.13 Inconsistency with other documents
Unless the contrary intention is expressed, if there is an inconsistency between
any of one or more of:
(a) this document;
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(b) any Schedule to this document; and
(c) the provisions of any other document of the Developer,
the order of precedence between them will be the order listed above, this document
having the highest level of precedence.
21.14 No fetter
Nothing in this document in any way restricts or otherwise affects the City’s
unfettered discretion to exercise its statutory powers as a public authority.
21.15 Counterparts
This document may be executed in counterparts.
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SCHEDULE 1
Agreement Details
ITEM TERM DESCRIPTION
1. Land Property 1 and Property 2.
2. Development The development the subject of the Development
Application being the redevelopment of the Land
as a mixed use precinct of residential, commercial
and recreation uses involving 7 phases including
building envelopes for nine development blocks
ranging in height between 2 and 8 storeys and
concept design for landscaping and public domain
works.
The total Gross Floor Area for the development
on the Land is 121,572.5 square meters with up
to 10% additional floor space available for
achieving design excellence
3. City’s
Representative
Name:
Director, Planning,
Development and Transport
Address: Level 1, 456 Kent Street,
Sydney NSW 2000
Fax number: +612 9265 9518
Email: [email protected]
4. Developer’s
Representative
Name: Project Manager, Greenland GH
Investment Pty Limited
Address: Level 23, 31 Market Street, Sydney,
N.S.W 2000
Fax number: (02) 8262 1401
Email: [email protected]
5. Property 2
Landowner’s
Representative
Name: Project Manager, Greenland GH
Investment Pty Limited
50
Address: Level 23, 31 Market Street, Sydney,
N.S.W 2000
Fax number: (02) 8262 1401
Email: [email protected]
6. Development
Application
D/2015/966 being the Stage 1 DA Concept Plan
relating to the Land (as may be modified from
time to time), together with all subsequent
development applications or amendments to
development applications that relate to the Stage
1 DA Concept Plan.
7. Guarantee
Amount
An amount equal to the sum of
- the DCP Works Guarantee Amount;
- S7.11 Works Guarantee Amount; and
- the Shortfall Guarantee Amount,
for each Phase.
7A. DCP Works
Guarantee
Amount
The Attributed Value of that part of the DCP
Public Benefits described as "DCP Public Benefits
(works)" in Schedule 3 associated with the
relevant Phase as follows:
Phase 1: $1,888,352
Phase 2: $498,168
Phase 3: $815,614
Phase 4: $512,442
Phase 5: $503,134
Phase 6: $95,689
Phase 7: $59,231
7B. S7.11 Works
Guarantee
Amount
The Attributed Value of that part of the Public
Benefits described as "S7.11 Works" in Schedule
3 associated with the relevant Phase as follows:
Phase 1: $146,724
51
Phase 2: $93,401
Phase 3: $617,112
Phase 4: $9,397,636
Phase 5: $1,606,630
Phase 6: $898,525
Phase 7: $0
Where Trunk Drainage Option X is elected, an
additional amount in each of Phase 3 and 4 as
follows:
Phase 3: $1,682,862
Phase 4: $9,962,048
Or where Trunk Drainage Option Y is elected an
additional amount in each of Phase 3 to 6
inclusive as follows:
Phase 3: $1,817,135
Phase 4: $4,537,392
Phase 5: $5,488,417
Phase 6: $2,268,586
7C. Shortfall SF = Q – (R+S)
where:
Q is the value of the Section 7.11 Monetary
Contribution for the Phase;
R is the Attributed Value of any Public
Benefits described as "S7.11 Land
Dedication" in Schedule 3 associated with
the Phase indexed in accordance with
clause 12.4;
S is the Attributed Value of that part of the
Public Benefits described as "S7.11
Works" in Schedule 3, including the
Attributed Value of any relevant trunk
drainage works, associated with the
Phase indexed in accordance with clause
12.4.
52
7D. Cumulative
Shortfall
CS = SF1 + SF2 + … SF7
where:
SF1 is the Shortfall for Phase 1;
SF2 is the Shortfall for Phase 2;
….
SF7 is the Shortfall for Phase 7.
Note: Shortfall values to be included for all
Active Phases up to the current Phase. If
CS is less than zero, the Cumulative
Shortfall is taken to be zero.
7E. Shortfall
Guarantee
Amount
SG = CS – T
where:
CS is the Cumulative Shortfall;
T is the total value of any Shortfall
Guarantees for previous Phases held by
the City.
Note: Where the application of the above
formula to a Phase produces a positive
number, this indicates that the
cumulative value of Section 7.11
Monetary Contributions as at a relevant
Phase exceeds the cumulative value of
S7.11 Works for all Phases up to and
including that Phase. The requirement for
the Developer to provide a Shortfall
Guarantee in those circumstances ensures
that the City is always holding security or
completed "S7.11 Works" equal to the
greater of the cumulative value of "S7.11
Works" for all Active Phases and the
cumulative Section 7.11 Monetary
Contributions for all Active Phases, less
the value of any "S7.11 Land Dedication"
associated with Active Phases.
(Note: See Annexure D for example Monetary
Contribution Notice sections for
calculation of Shortfall, Cumulative
53
Shortfall and Shortfall Guarantee
Amount).
8. Guarantee
Amount Due Date
At least five Business Days before the first
Construction Certificate is issued for the relevant
building specified below as relevant to each
specified Phase of the Development.
Phase 1: Building B or C
Phase 2: Building A
Phase 3: Building D
Phase 4: Building E
Phase 5: Building F
Phase 6: Building I
Phase 7: Building G or H; and
The additional guarantees for Trunk Drainage for:
- Option X prior to the issue of any
construction certificate referable to Phases
3 and 4; or
- Option Y prior to the issue of any
construction certificate referable to the
relevant Phase for each of Phases 3 to 6.
9. Maintenance of
Developer’s
Works
As set out in Annexure A.
54
SCHEDULE 2
Requirements under the Act and Regulation (clause 2)
The below table summarises how this document complies with the Act and Regulation.
ITEM SECTION OF ACT OR
REGULATION
PROVISION/CLAUSE OF THIS DOCUMENT
1. Planning instrument and/or
development application
(section 7.4(1) of the Act)
The Developer has:
(a) sought a change to an
environmental planning
instrument;
(b) made, or proposes to
make, a Development
Application; or
(c) entered into an
agreement with, or is
otherwise associated
with, a person, to whom
paragraph (a) or (b)
applies.
(a) No
(b) Yes
(c) No
2. Description of land to which
this document applies (section
7.4(3)(a) of the Act)
Item 1 of Schedule 1.
3. Description of change to the
environmental planning
instrument to which this
document applies and/or the
development to which this
document applies (section
7.4(3)(b) of the Act)
The Development as described in item 2 of
Schedule 1.
4. The scope, timing and manner
of delivery of Public Benefits
required by this document
(section 7.4(3)(c) of the Act)
Schedule 3 and Annexure A.
5. Applicability of sections 7.11
and 7.12 of the Act (section
7.4(3)(d) of the Act)
The application of sections 7.11 and 7.12 of the
Act is not excluded in respect of the
Development.
However, as contemplated by Item 7 of this
Schedule 2, contributions (if any) under
sections 7.11 or 7.12 will be offset in
accordance with clauses 6 and 7 of this
55
ITEM SECTION OF ACT OR
REGULATION
PROVISION/CLAUSE OF THIS DOCUMENT
document. The remaining amount of s7.11
contributions, if any, are payable in accordance
with the Development Consent.
6. Applicability of section 7.24 of
the Act (section 7.4(3)(d) of the
Act)
The application of section 7.24 of the Act is not
excluded in respect of the Development
7. Consideration of benefits under
this document if section 7.11
applies (section 7.4(3)(e) of the
Act)
Benefits as contemplated by this document are
to be taken into consideration in determining a
development contribution under section 7.11 of
the Act.
8. Mechanism for Dispute
Resolution (section 7.4(3)(f) of
the Act)
Clause 14
9. Enforcement of this document
(section 7.4(3)(g) of the Act)
Clause 12
10. No obligation to grant consent
or exercise functions (section
7.4(9) of the Act)
Clause 2.4
11. Registration of this document
(section 7.6 of the Act)
Clause 11
12. Whether certain requirements
of this document must be
complied with before a
construction certificate is
issued (clause 25E(2)(g) of the
Regulation)
Refer to the explanatory note
13. Whether certain requirements
of this document must be
complied with before a
subdivision certificate is issued
(clause 25E(2)(g) of the
Regulation)
Refer to the explanatory note
14. Whether certain requirements
of this document must be
complied with before an
occupation certificate is issued
Refer to the explanatory note
56
ITEM SECTION OF ACT OR
REGULATION
PROVISION/CLAUSE OF THIS DOCUMENT
(clause 25E(2)(g) of the
Regulation)
15. Whether the explanatory note
that accompanied exhibition of
this document may be used to
assist in construing this
document (clause 25E(7) of the
Regulation)
Clause 2.5
57
SCHEDULE 3
Public Benefits (clause 5)
1. PUBLIC BENEFITS - OVERVIEW
The Developer must provide the Public Benefits in accordance with clause 5.3 and
Schedule 3 and this document. The Attributed Value, timing of delivery and
additional specifications relating to the Public Benefits is set out in the table below:
58
Item Category of Public Benefit
Description Due Date for Delivery Attributed
Value
Phase 1 - Buildings B and C
1.1 DCP Public
Benefits (works)
Construction of Foundry Street road reserve including intersection works at Ashmore Street and temporary western footway treatment adjacent to Building A and adjacent to McPherson Park, excluding the temporary turning head.
Prior to the issue of the first Occupation Certificate for Building B or C whichever occurs first.
$1,856,804
1.2 DCP Public Benefits (land dedication)
Dedication of 2,434m2 of land free of cost to Council comprising the Foundry Street road reserve as generally shown in draft subdivision plan annexure A “Public Benefits - Transfer Land”, not including temporary turning head.
Prior to the issue of the first Occupation Certificate for Building B or C whichever occurs first.
Nil
1.3 Temporary
works
Construction of a temporary turning head. Prior to the issue of the first Occupation Certificate for Building B or C whichever occurs first.
$31,548
1.4 DCP Public
Benefits (works)
Construction of a pedestrian link between Buildings B and C connecting Foundry Street to Mitchell Road (Pedestrian Link 1)
Prior to the issue of the first Occupation Certificate for Building B or C whichever occurs first.
Nil
1.5 Creation of
Interest in Land
Creation of right of footway of 727m2 for Pedestrian Link 1 between Buildings B and C.
Prior to the issue of the first Occupation Certificate for Building B or C whichever occurs first.
Nil
1.6 S7.11 Works Construction of footpath and temporary street lighting on northern end of MacDonald Street adjacent to the south frontage of Building C between Mitchell Road and Foundry Street.
Prior to the issue of the first Occupation Certificate for Building B or C whichever occurs first.
$146,724
1.7 S7.11 Land
Dedication
Dedication of 250m2 of land free of cost to Council comprising the footway along the southern frontage of Building C (forming part of MacDonald Street) between Mitchell Road and Foundry Street
Prior to the issue of the first Occupation Certificate for Building B or C whichever occurs first.
$250,000
Phase 2 - Building A
2.1 S7.11 Works Construction of a footpath along western edge of Building A fronting Kooka Walk.
Prior to the issue of the first Occupation Certificate for Building A.
$93,401
2.2 S7.11 Land Dedication
Dedication of 102 m2 land free of cost to Council comprising the footpath along the western frontage of Building A (forming part of Kooka Walk) between Ashmore Street and Stovemaker Lane.
Prior to the issue of the first Occupation Certificate for Building A.
$102,000
2.3 DCP Public
Benefits (works)
Construction of permanent footpath along eastern edge of Building A fronting Foundry Street.
Prior to the issue of the first
Occupation Certificate for
Building A.
$163,007
2.4 DCP Public
Benefits (works)
Construction of Stovemaker Lane pedestrian and cycle link between Building A and McPherson Park connecting Foundry Street to Kooka Walk.
Prior to the issue of the first Occupation Certificate for Building A.
$335,161
2.5 DCP Public
Benefits (land
dedication)
Dedication of 450m2 of land free of cost to Council comprising Stovemaker Lane West.
Prior to the issue of the first
Occupation Certificate for
Building A.
Nil
Phase 3 - Building D
59
3.1 S7.11 work Construction of Kooka Walk North including recycled water main between Ashmore Street and Stovemaker Lane.
Prior to the issue of the first
Occupation Certificate for
Building D.
$617,112
3.2 S7.11 Land
Dedication
Dedication of 1,383m2 of land free of cost to Council comprising Kooka Walk North (for pedestrian access only) road reserve as generally shown in draft subdivision plan annexure A “Public Benefits - Transfer Land”.
Prior to the issue of the first
Occupation Certificate for
Building D.
$1,383,000
3.3 DCP Public
Benefits (works)
Construction of Metters Street from western boundary of site to Kooka Walk North including a temporary southern footway treatment adjacent to Building E.
Prior to the issue of the first
Occupation Certificate for
Building D.
$454,956
3.4 DCP Public Benefits (land dedication)
Dedication of 524m2 of land free of cost to Council comprising Metters Street road reserve as generally shown in draft subdivision plan annexure A “Public Benefits
- Transfer Land”.
Prior to the issue of the first Occupation Certificate for Building D.
Nil
3.5 DCP Public
Benefits (works)
Construction of Coppersmith Lane from the western boundary of the site to the western edge of Kooka Walk and including the north-south extent from Metters Street.
Prior to the issue of the first Occupation Certificate for Building D.
$360,658
3.6 DCP Public
Benefits (land
dedication)
Dedication of 379m2 of land free of cost to Council comprising Coppersmith Lane (north-south and east-west) as a road reserve.
Prior to the issue of the first
Occupation Certificate for
Building D.
Nil
Phase 4 – Building E
4.1 Temporary
works
Removal of temporary turning head and construction of permanent works to Foundry Street.
Prior to the issue of the first
Occupation Certificate for
Building E.
$31,195
4.2 S7.11 work Construction of Kooka Walk (central) between Stovemaker Lane and MacDonald Street, including construction of recycled water main below the Kooka Walk alignment.
Prior to the issue of the first Occupation Certificate for Building E.
$1,297,249
4.3 S7.11 Land
Dedication
Dedication of 2,083m2 of land free of cost to Council comprising Kooka walk (central) for pedestrian access between Stovemaker Lane and MacDonald Street
Prior to the issue of the first
Occupation Certificate for
Building E.
$2,083,000
4.4 DCP Public
Benefits (works)
Construction of a Pedestrian Link 2 between Building E.
Prior to the issue of the first Occupation Certificate for Building E
Nil
4.5 Creation of
Interest in Land
Creation of right of footway of 272m2 over Pedestrian Link 2 between Building E.
Prior to the issue of the first
Occupation Certificate for
Building E
nil
4.6 S7.11 Works Construction of MacDonald Street between western boundary of the site and Mitchell Road, including the construction of recycled water main below the MacDonald Street alignment at Kooka Walk.
Prior to the issue of the first Occupation Certificate for Building E
$2,107,212
4.7 Temporary works
Construction of temporary footway on MacDonald Street on the northern edge of Buildings F and G.
Prior to the issue of the first Occupation Certificate for Building E
$37,671
4.8 DCP Public
Benefits (works)
Construction of new signalised intersection at Mitchell Road and MacDonald Street, including demolition of existing roundabout (these works are offsite)
Prior to the issue of the first
Occupation Certificate Building
E.
$443,576
60
4.9 S7.11 Land Dedication
Dedication of 3,527m2 of land free of cost to Council comprising of MacDonald Street from the western site boundary to Mitchell Road
Prior to the issue of the first Occupation Certificate for Building E.
$3,527,000
4.10 S7.11 Works Construction of McPherson Park Prior to the issue of the first Occupation Certificate for Building E.
$4,493,175
4.11 S7.11 Land
Dedication
Dedication of 7,446m2 of land free of cost to Council comprising McPherson Park
Prior to the issue of the first
Occupation Certificate for
Building E.
$7,446,000
4.12 S7.11 Works Construction of Public Art within McPherson Park.
Prior to the issue of the first Occupation Certificate for Building E.
$1,500,000
Phase 5 - Building F
5.1 S7.11 Works Construction of Kooka Walk including recycled water main between MacDonald Street and Alpha Street
Prior to the issue of the first Occupation Certificate for Building F
$1,463,521
5.2 S7.11 Land
Dedication
Dedication of 2,405m2 of land to Council comprising Kooka Walk south between MacDonald Street and Alpha Street (for pedestrian access only) as generally shown in draft subdivision plan annexure A “Public
Benefits - Transfer Land”.
Prior to the issue of the first
Occupation Certificate for
Building F
$2,405,000
5.3 DCP Public
Benefits (works)
Construction of Alpha Street including a temporary footway treatment to adjacent Building I.
Prior to the issue of the first Occupation Certificate for Building F
$438,937
5.4 DCP Public Benefits (land dedication)
Dedication of 677m2 of land free of cost to Council comprising the full Alpha Street road reserve as generally shown in draft subdivision
plan annexure A “Public Benefits - Transfer
Land”.
Prior to the issue of the first Occupation Certificate for Building F
Nil
5.5 DCP Public
Benefits (works)
Construction of new intersection at Mitchell
Road and Alpha Street
Prior to the issue of the first
Occupation Certificate for
Building F
$64,197
5.6 S7.11 Works Completion of southern footpath of MacDonald Street footpath adjacent to Building F between Kooka Walk and Mitchell Road
Prior to the issue of the first
Occupation Certificate for
Building F
$143,109
Phase 6 - Building l
6.1 S7.11 Works Construction of Kooka Walk including recycled water main between Alpha Street and Coulson Street.
Prior to the issue of the first Occupation Certificate for Building I
$868,525
6.2 S7.11 Land Dedication
Dedication of 1,437m2 of land to Council comprising Kooka Walk between Alpha Street and Coulson Street (for pedestrian access only) as generally shown in draft subdivision plan annexure A “Public Benefits - Transfer
Land”.
Prior to the issue of the first Occupation Certificate for Building I
$1,437,000
6.3 DCP Public
Benefits (works)
Construction of the southern footpath of Alpha Street adjacent to the Building I frontage.
Prior to the issue of the first Occupation Certificate for Building I
$95,689
Phase 7 - Building G and H
7.1 DCP Public
Benefits (works)
Construction of Pedestrian Link 3 between Buildings G and H (Nassau Lane), extending between Hadfield Street and Kooka Walk
Prior to the issue of the first Occupation Certificate for Building G or H whichever is earlier
Nil
61
7.2 DCP Public
Benefits (works)
Embellishment of small strip of land within the site boundary adjacent to the Hadfield Street road reserve
Prior to the issue of the first Occupation Certificate for Building G or H whichever is earlier
$59,231
7.3 DCP Public
Benefits (land
dedication)
Dedication of 134m2 of land free of cost to Council adjacent to the Hadfield Street road reserve
Prior to the issue of the first
Occupation Certificate for
Building G or H whichever is
earlier
Nil
7.4 Creation of Interest in Land
Creation of right of footway of 380m2 over Pedestrian Link 3 (Nassau Lane) between Buildings G and H.
Prior to the issue of the first Occupation Certificate for Building G or H whichever is earlier
nil
Trunk Drainage Works - Option X – Ashmore Street to Mitchell Road
Item Category of Public Benefit
Description Due Date for Delivery Attributed
Value
X3 S7.11 Works Construction of trunk drainage below the alignment of Kooka Walk (north) between Ashmore Street and the Stovemaker Lane.
Prior to the issue of the first Occupation Certificate for Building D.
$1,682,862
X
4.1
S7;11 Works Construction of trunk drainage below the alignment of Kooka Walk (central) from Stovemaker Lane and then running diagonally through McPherson Park terminating at Mitchell Road.
Prior to the issue of the first Occupation Certificate for Building E.
$2,842,672
X
4.2
S7.11 Works Extension of new trunk drain constructed by the City in MacDonald Street West and connection of the extension to the existing trunk drain in Kooka Walk. Removal of obsolete trunk drain within road reserve.
Prior to Occupation Certificate for
Building E.
$7,119,376
Trunk Drainage Works – Option Y - Ashmore Street to Coulson Street
Item Category of Public Benefit
Description Due Date for Delivery Attributed
Value
Y3 S7.11 Works Construction of trunk drainage below the alignment of Kooka Walk (north) between Ashmore Street and the Stovemaker Lane.
Prior to the issue of the first
Occupation Certificate for
Building D.
$1,817,135
Y4 S7.11 Works Construction of trunk drainage below the alignment of Kooka Walk (central) between Stovemaker Lane and MacDonald Street.
Prior to the issue of the first
Occupation Certificate for
Building E.
$4,537,392
Y 5.1 S7,11 Works Construction of trunk drainage below the alignment of Kooka Walk (from south of MacDonald Street to Alpha Street.)
Prior to the issue of the first Occupation Certificate for Building F.
$4,758,503
Y 5.2 S7.11 Works Upsize trunk drain in Kooka Walk to carry combined flows of north and west trunk drains.
Prior to Occupation Certificate for
Building F
$729,914
Y6 S7.11 Works Construction of trunk drainage below the alignment of Kooka Walk from Alpha Street and Coulson Street.
Prior to the issue of the first
Occupation Certificate for
Building I.
$2,268,586
62
2. TRANSFER LAND
2.1 Dedication of land – decision
The Developer and Property 2 Landowner (as relevant) must, at their cost, take
all steps required to transfer the relevant items of Transfer Land falling within
Property 1 and Property 2 respectively to the City by the relevant due date
specified in clause 1 of Schedule 3. As part of this obligation, the Developer and
Property 2 Landowner must confirm with the City whether that Transfer Land is to
be:
(a) dedicated to the City on registration of a plan of subdivision; or
(b) transferred to the City on registration of a transfer instrument.
2.2 Obligations on dedication
The requirement for the Developer and Property 2 Landowner to dedicate the
relevant items of Transfer Land falling within Property 1 and Property 2
respectively to the City is satisfied where a deposited plan is registered in the
register of plans held with the Registrar-General that dedicates land as a public
road (including a temporary public road) under the Roads Act 1993 (NSW) or
creates a public reserve or drainage reserve under the Local Government Act 1993
(NSW).
2.3 Obligations on transfer
(a) The requirement for the Developer and Property 2 Landowner to transfer the
relevant items of Transfer Land falling within Property 1 and Property 2
respectively to the City is satisfied where:
(i) the City is given:
(A) an instrument in registrable form under the Real Property Act
1900 (NSW) duly executed by the Developer or Property 2
Landowner (as relevant) as transferor that is effective to
transfer the title to the Transfer Land to the City when executed
by the City as transferee and registered;
(B) the written consent to the registration of the transfer of any
person whose consent is required to that registration; and
(C) a written undertaking from any person holding the certificate of
title to the production of the certificate of title for the purposes
of registration of the transfer.
(b) The Developer and Property 2 Landowner (as relevant) are to do all things
reasonably necessary to enable registration of the instrument of transfer to
occur.
(c) The Developer and Property 2 Landowner (as relevant) must ensure that the
Transfer Land is free of all encumbrances and affectations (whether
registered or unregistered and including without limitation any charge or
liability for rates, taxes and charges) except for:
63
(i) any Easement for Water supply purposes (vide AG600007) that will
sit within the proposed Metters St, MacPherson Park and MacDonald
St as shown labelled (A) and (B) on Draft Subdivision plan ref
43757VPA;
(ii) redundant encumbrances and affectations which for the avoidance of
doubt and uncertainty the Developer is required to remove;
(iii) any other encumbrances, agreed in writing by the City acting
reasonably which would not unreasonably impede the intended use of
all or any part of the Transfer Land; and
(iv) any encumbrances which are required to be created under any
Development Consent for the Development.
(d) The Developer must indemnify and agree to keep indemnified the City
against all claims made against the City as a result of any Contamination in,
over, under or migrating from the whole or any part of the Transfer Land
but only in relation to Contamination that existed on or before the date that
the Transfer Land is dedicated to the City in accordance with the
requirements of this clause
(e) The Developer warrants that as at the date of this document the Transfer
Land is not subject to any Adverse Affectation and warrants as to those
matters in Schedule 3 of the Conveyancing (Sale of Land) Regulation 2010
(NSW), unless otherwise notified to and agreed by the City in writing in its
absolute discretion.
3. EASEMENTS
3.1 Creation
The Developer and Property 2 Landowner (as relevant) must, at their cost, take
all steps required to create the Easements over the relevant parts of Property 1
and Property 2 respectively by the relevant due date specified in clause 1 of
Schedule 3.
3.2 Obligations satisfied
(a) The requirement for the Developer and Property 2 Landowner (as relevant)
to create the Easements is satisfied where:
(i) an instrument in registrable form under the Real Property Act 1900
(NSW) creating the Easements is registered at NSW Land Registry
Services; and
(ii) the Developer or Property 2 Landowner (as relevant) provide the City
with written notice confirming the registration contemplated in (i)
above together with the registration notice provided by NSW Land
Registry Services.
(b) The Developer and Property 2 Landowner (as relevant) are to do all things
reasonably necessary to enable registration of the instrument creating the
64
Easements over the relevant parts of Property 1 and Property 2 respectively
to occur.
4. FINAL DESIGN OF THE DEVELOPER’S WORKS
4.1 Scope of Developer’s Works
As at the date of this document, the nature and extent of the required Developer’s
Works is set out in Annexure A to this document. The parties agree that further
design refinement of the Developer’s Works may be necessary, having regard to:
(a) the extent to which the design of the Developer’s Works has been approved
by the City;
(b) minor conditions affecting the Developer’s Works that were not reasonably
capable of identification prior to the date of this document;
(c) the extent of any refinement of the design of the Developer’s Works
permitted by this clause 2.3(e) of Schedule 3;
(d) any modification to the Development Consent made and approved under
section 4.55 of the Act or any other development consent granted that
relates to the Developer’s Works; and
(e) the reasonable requirements of the City, including in regard to the
Standards.
4.2 Final design of Developer’s Works
(a) Prior to the issue of the first Construction Certificate for the respective
Phase, the Developer must submit to the City’s Representative for approval:
(i) detailed design drawings of the Developer’s Works that reflect the
plans and specifications set out in Annexure A; and
(ii) a detailed costs estimate (certified by a Quantity Surveyor) setting
out the estimated cost of the Developer’s Works.
(b) Within 30 Business Days after the City’s Representative has received the
detailed design drawings and detailed costs estimate, the City will inform
the Developer in writing as to whether the detailed design drawings and
costs estimate are approved. If the detailed design drawings or costs
estimate are not approved, the City will inform the Developer in writing of
what further information or modifications are required and the Developer
will have a further 15 Business Days to re-submit the required information,
following which the process outlined in this paragraph (b) will apply again.
(c) Regarding the costs estimate, the Developer agrees that the City may:
(i) reject items included within the Quantity Surveyor’s Assessment
which are not directly related to the Developer’s Works;
(ii) require substantiation for the costs of items where the amount
estimated is considered by the City to be excessive;
65
(iii) require an adjustment to the costs estimate to reflect a variation to
the design required under this clause 4.2 of Schedule 3.
(d) If the Developer:
(i) fails to prepare the detailed design drawings or detailed costs
estimate; or
(ii) does not provide further information or modify the detailed design
drawings or detailed costs estimate,
in accordance with this clause 4.2 of Schedule 3, then the City may exercise
its rights under clause 12 of this document in order to carry out the
Developer’s Works itself at the cost of the Developer.
(e) The Developer agrees that the value of the Developer’s Works may be
adjusted following completion of the process set out in this clause 4.2 of
Schedule 3. The Developer acknowledges that the scope of the Developer’s
Works will not change or reduce if the costs required to complete those
works is greater than the amount estimated at the date of this document.
Nothing in this clause affects the Developer’s rights under clause 4.3(b)(iii)
of this Schedule 3.
4.3 Preparation of and changes to construction design drawings
(a) Following approval of the detailed design drawings by the City in accordance
with clause 4.2 of Schedule 3, the Developer must promptly:
(i) prepare construction design drawings that comply with the detailed
design drawings; and
(ii) provide the City with a copy of the construction design drawings.
(b) The City, acting reasonably, may by written notice to the Developer at any
time, approve, vary or direct the Developer to vary the construction design
drawings so that the Developer’s Works reflect:
(i) the Standards;
(ii) a departure or discrepancy from the plans approved under clause 4.2
of Schedule 3; or
(iii) any other standard or specification for materials or methodology for
carrying out works that is adopted by the City from time to time,
provided that any direction given under this clause 4.3(b)(iii) of
Schedule 3 does not significantly increase:
(A) the cost of that element of the Developer’s Works; or
(B) the complexity of implementation of the Developer’s Works that
may lead to a significant delay in the completion of the
Developer’s Works.
(c) The parties acknowledge and agree that if the City exercises its rights under
clause 4.3(b) of this Schedule 3, then clause 6.2 applies.
66
(d) Within 20 Business Days of receiving a notice from the City under clause
4.3(b) of Schedule 3 the Developer must:
(i) to the extent practicable, use reasonable endeavours to comply with
the notice given by the City; or
(ii) if the Developer determines that the notice given by the City is
unreasonable or impracticable, notify a dispute in accordance with
clause 14 of this document.
If the Developer does not provide any response during the 20 Business Days
after receiving a notice from the City under clause 4.3(b) of Schedule 3, it
is deemed that the Developer accepts the notice given by the City and will
take all steps required to comply with the notice.
(e) The City does not assume or owe any duty of care to the Developer in
reviewing any design drawings submitted to it under this clause 4 of
Schedule 3 or for any errors, omissions or non-compliance with this
document.
(f) No participation by the City in the development of, the review of, or
comments on any design drawings submitted by the Developer will lessen
or otherwise affect the Developer’s obligations under this document or
constitute an acknowledgement by the City that the Developer has complied
with its obligations under this document.
5. CONSTRUCTION OF DEVELOPER’S WORKS
5.1 Insurance
(a) From commencement of the Developer’s Works until expiration of the
Defects Liability Period, the Developer must effect and maintain (or cause
to be effected and maintained under one or more policies of insurance and
without requiring any risk to be double insured) the following insurances
held with an insurer licensed by the Australian Prudential Regulation
Authority or holding an investment grade rating from Standard & Poors,
Moody’s or Fitch:
(i) worker's compensation insurance or registrations as required by
Laws;
(ii) public liability insurance written on an occurrence basis with a limit of
indemnity of not less than $20,000,000 covering all aspects of the
Developer’s Works;
(iii) construction works insurance in relation to the Developer’s Works;
and
(iv) motor vehicle third party cover with a limit of indemnity of not less
than $20 million for each and every occurrence.
(b) The Developer must submit a copy of all certificates of insurance to the City:
(i) prior to commencing construction of the Developer’s Works; and
67
(ii) promptly following a written request by the City, provided that such a
request is not made more than twice in any 12 month period.
5.2 Approvals and consents
The Developer must, at its cost, obtain all relevant approvals and consents for the
Developer’s Works, whether from the City or from any other relevant Government
Agency, including Sydney Desalination Plant, including any necessary road opening
permits. Before commencing the Developer’s Works, the Developer must if
requested to do so give to the City copies of all approvals and consents for the
Developer’s Works, other than the Development Consent.
5.3 Construction work
The Developer must, at its cost:
(a) carry out and complete the Developer’s Works in accordance with all
approvals and consents relating to the Developer’s Works, including any
approval given by the City under this document;
(b) ensure that all Developer’s Works are constructed in a good and
workmanlike manner, in accordance with the plans approved under this
document so that the Developer’s Works are structurally sound, fit for
purpose and suitable for their intended use generally in accordance with the
Standards;
(c) ensure that the Developer’s Works are Complete by the relevant due date
specified in clause 1 of Schedule 3 and promptly after becoming aware
advise the City’s Representative of any significant delays in completing the
Developer’s Works or delays that may impact the delivery of the Public
Benefits by the due date specified in Item 1 of Schedule 3; and
(d) comply with all reasonable directions of the City in respect to construction
of the Developer’s Works.
5.4 Inspections by the City
The City, as a party to this document and not in its role as a Government Agency,
may:
(a) inspect the Developer’s Works during the course of construction at
reasonable times and on reasonable notice; and
(b) notify the Developer’s Representative of any material or significant defect,
error or omission relating to the construction or installation of the
Developer’s Works identified during or as the result of an inspection.
Any failure by the City to identify a Defect, error or omission will not be construed
as amounting to an acceptance by the City of the Defect, error or omission.
6. STANDARDS
The following list of Standards are included for information purposes only, and as
a guide to the relevant standards for the general nature of the work identified as
68
Developer’s Works in this document. The City makes no representation or
warranty as to the currency of the standards identified, or their application on the
final design of the Developer’s Works. The Developer must make its own enquiries
regarding whether any standard has been replaced or supplemented. In the event
that an Australian Standard prescribed a different level of material, finish, work or
workmanship than those contained in a City standard, then the higher of the two
standards will apply. If there is a conflict between City standards then the
Developer must request the City nominate the correct and applicable City
standard. The City’s decision as to the applicable standard is final.
Relevant Australian Standards – Verge Works, Through site links
• AS 1725 Geotechnical Site investigations
• AS 4455 Masonry Units and segmental pavers
• AS 4678 Earth Retaining Structures
• AS 3600 Concrete Structures
• AS 2876 Concrete kerbs and channels
• AS 1158 Road Lighting
• AS 1743 Road signs
• AS 4282 Control of the Obtrusive Effects of Outdoor lighting
• AS 1428 Design for Access and Mobility
• AS 3500 Plumbing and Drainage
• AS 3700 Masonry Structures
• AS 2890 Parking Facilities
• As 4454 Composts, soil conditioners and mulches
Relevant Australian Standards – Roads (including pedestrian areas)
• AS 1725 Geotechnical Site investigations
• AS 4455 Masonry Units and segmental pavers
• AS 4678 Earth Retaining Structures
• AS 3600 Concrete Structures
• AS 2876 Concrete kerbs and channels
• AS 1158 Road Lighting
• AS 4282 Control of the Obtrusive Effects of Outdoor lighting
• AS 1428 Design for Access and Mobility
69
• AS 3500 Plumbing and Drainage
• AS 3700 Masonry Structures
• AS 2890 Parking Facilities
• AS 4282 Design for Access and Mobility
• AS 1742 Manual of uniform traffic control devices
• AS 1743 Road Signs
City Standards, Policies and Plans (All Works)
• City of Sydney Contaminated Lands DCP 2004
• Sydney Street Code 2013
• Sydney Lights Code
• City of Sydney Access Policy
• Sydney Street Technical Specification and drawings
• City of Sydney Street Tree Master Plan 2011
• Stormwater Drainage Strategy for mid block (prepared by Webb McKeown
consulting engineers)
• Council of the City of Sydney Policy for Waste Minimisation in New
Developments
Ashmore Precinct Concept Public Domain Design (listed below
Document Number Rev Document Title
60318562-SHT-CI-0001 5 COVER SHEET
60318562-SHT-CI-0002 4 DRAWING LIST
60318562-SHT-CI-0010 4 KEY PLAN
60318562-SHT-CI-0020 8 LOCALITY PLAN
60318562-SHT-CI-0021 8 GENERAL ARRANGEMENT PLAN SHEET 1
60318562-SHT-CI-0022 8 GENERAL ARRANGEMENT PLAN SHEET 2
60318562-SHT-CI-0023 8 GENERAL ARRANGEMENT PLAN SHEET 3
60318562-SHT-CI-0024 11 GENERAL ARRANGEMENT PLAN SHEET 4
60318562-SHT-CI-0025 10 GENERAL ARRANGEMENT PLAN SHEET 5
60318562-SHT-CI-0026 10 GENERAL ARRANGEMENT PLAN SHEET 6
60318562-SHT-CI-0027 9 GENERAL ARRANGEMENT PLAN SHEET 7
60318562-SHT-CI-0028 9 GENERAL ARRANGEMENT PLAN SHEET 8
60318562-SHT-CI-0029 8 GENERAL ARRANGEMENT PLAN SHEET 9
60318562-SHT-CI-0030 6 PUBLIC DOMAIN PLANS SHEET 1
60318562-SHT-CI-0031 5 PUBLIC DOMAIN PLANS SHEET 2
60318562-SHT-CI-0032 5 PUBLIC DOMAIN PLANS SHEET 3
60318562-SHT-CI-0033 6 PUBLIC DOMAIN PLANS SHEET 4
60318562-SHT-CI-0034 5 PUBLIC DOMAIN PLANS SHEET 5
60318562-SHT-CI-0035 5 PUBLIC DOMAIN PLANS SHEET 6
60318562-SHT-CI-0036 6 PUBLIC DOMAIN PLANS SHEET 7
60318562-SHT-CI-0037 5 PUBLIC DOMAIN PLANS SHEET 8
70
60318562-SHT-CI-0038 6 PUBLIC DOMAIN PLANS SHEET 9
60318562-SHT-CI-0040 11 TYPICAL SECTIONS SHEET 1
60318562-SHT-CI-0041 10 TYPICAL SECTIONS SHEET 2
60318562-SHT-CI-0042 9 TYPICAL SECTIONS SHEET 3
60318562-SHT-CI-0043 11 TYPICAL SECTIONS SHEET 4
60318562-SHT-CI-0044 5 TYPICAL SECTIONS SHEET 5
60318562-SHT-CI-0090 4 DETAILS SHEET 1
60318562-SHT-CI-0094 5 DETAILS SHEET 2
60318562-SHT-CI-0095 5 DETAILS SHEET 3
60318562-SHT-CI-0100 7 LONGSECTIONS SHEET 1
60318562-SHT-CI-0101 7 LONGSECTIONS SHEET 2
60318562-SHT-CI-0102 7 LONGSECTIONS SHEET 3
60318562-SHT-CI-0103 6 LONGSECTIONS SHEET 4
60318562-SHT-CI-0104 6 LONGSECTIONS SHEET 5
60318562-SHT-CI-0105 7 LONGSECTIONS SHEET 6
60318562-SHT-CI-0106 6 LONGSECTIONS SHEET 7
60318562-SHT-CI-0107 6 LONGSECTIONS SHEET 8
60318562-SHT-CI-0108 7 LONGSECTIONS SHEET 9
60318562-SHT-CI-0109 6 LONGSECTIONS SHEET 10
60318562-SHT-CI-0110 6 LONGSECTIONS SHEET 11
60318562-SHT-CI-0111 6 LONGSECTIONS SHEET 12
60318562-SHT-CI-0112 6 LONGSECTIONS SHEET 13
60318562-SHT-CI-0113 6 LONGSECTIONS SHEET 14
60318562-SHT-CI-0114 6 LONGSECTIONS SHEET 15
60318562-SHT-CI-0115 6 LONGSECTIONS SHEET 16
60318562-SHT-CI-0116 6 LONGSECTIONS SHEET 17
60318562-SHT-CI-0117 2 KERB LONGSECTIONS SHEET 1
60318562-SHT-CI-0201 4 ROAD CROSS SECTIONS SHEET 1
60318562-SHT-CI-0202 6 ROAD CROSS SECTIONS SHEET 2
60318562-SHT-CI-0203 6 ROAD CROSS SECTIONS SHEET 3
60318562-SHT-CI-0204 6 ROAD CROSS SECTIONS SHEET 4
60318562-SHT-CI-0205 6 ROAD CROSS SECTIONS SHEET 5
60318562-SHT-CI-0206 6 ROAD CROSS SECTIONS SHEET 6
60318562-SHT-CI-0207 6 ROAD CROSS SECTIONS SHEET 7
60318562-SHT-CI-0208 6 ROAD CROSS SECTIONS SHEET 8
60318562-SHT-CI-0209 6 ROAD CROSS SECTIONS SHEET 9
60318562-SHT-CI-0210 6 ROAD CROSS SECTIONS SHEET 10
60318562-SHT-CI-0211 5 ROAD CROSS SECTIONS SHEET 11
60318562-SHT-CI-0212 5 ROAD CROSS SECTIONS SHEET 12
60318562-SHT-CI-0213 6 ROAD CROSS SECTIONS SHEET 13
60318562-SHT-CI-0214 6 ROAD CROSS SECTIONS SHEET 14
60318562-SHT-CI-0215 5 ROAD CROSS SECTIONS SHEET 15
60318562-SHT-CI-0216 5 ROAD CROSS SECTIONS SHEET 16
60318562-SHT-CI-0217 5 ROAD CROSS SECTIONS SHEET 17
60318562-SHT-CI-0218 5 ROAD CROSS SECTIONS SHEET 18
60318562-SHT-CI-0219 5 ROAD CROSS SECTIONS SHEET 19
60318562-SHT-CI-0220 5 ROAD CROSS SECTIONS SHEET 20
60318562-SHT-CI-0221 5 ROAD CROSS SECTIONS SHEET 21
60318562-SHT-CI-0222 5 ROAD CROSS SECTIONS SHEET 22
60318562-SHT-CI-0223 5 ROAD CROSS SECTIONS SHEET 23
60318562-SHT-CI-0224 5 ROAD CROSS SECTIONS SHEET 24
60318562-SHT-CI-0225 5 ROAD CROSS SECTIONS SHEET 25
60318562-SHT-CI-0226 5 ROAD CROSS SECTIONS SHEET 26
60318562-SHT-CI-0227 5 ROAD CROSS SECTIONS SHEET 27
71
60318562-SHT-CI-0228 5 ROAD CROSS SECTIONS SHEET 28
60318562-SHT-CI-0229 5 ROAD CROSS SECTIONS SHEET 29
60318562-SHT-CI-0230 5 ROAD CROSS SECTIONS SHEET 30
60318562-SHT-CI-0231 5 ROAD CROSS SECTIONS SHEET 31
60318562-SHT-CI-0232 5 ROAD CROSS SECTIONS SHEET 32
60318562-SHT-CI-0233 5 ROAD CROSS SECTIONS SHEET 33
60318562-SHT-CI-0234 5 ROAD CROSS SECTIONS SHEET 34
60318562-SHT-CI-0235 6 ROAD CROSS SECTIONS SHEET 35
60318562-SHT-CI-0300 4 LINES AND SIGNS PLANS SHEET 1
60318562-SHT-CI-0301 4 LINES AND SIGNS PLANS SHEET 2
60318562-SHT-CI-0302 4 LINES AND SIGNS PLANS SHEET 3
60318562-SHT-CI-0303 6 LINES AND SIGNS PLANS SHEET 4
60318562-SHT-CI-0304 6 LINES AND SIGNS PLANS SHEET 5
60318562-SHT-CI-0305 6 LINES AND SIGNS PLANS SHEET 6
60318562-SHT-CI-0306 4 LINES AND SIGNS PLANS SHEET 7
60318562-SHT-CI-0307 4 LINES AND SIGNS PLANS SHEET 8
60318562-SHT-CI-0308 4 LINES AND SIGNS PLANS SHEET 9
60318562-SHT-CI-0400 1 DRAINAGE CATCHMENT PLAN
60318562-SHT-CI-0500 5 DRAINAGE PLAN SHEET 1
60318562-SHT-CI-0501 5 DRAINAGE PLAN SHEET 2
60318562-SHT-CI-0502 5 DRAINAGE PLAN SHEET 3
60318562-SHT-CI-0503 5 DRAINAGE PLAN SHEET 4
60318562-SHT-CI-0504 5 DRAINAGE PLAN SHEET 5
60318562-SHT-CI-0505 5 DRAINAGE PLAN SHEET 6
60318562-SHT-CI-0506 5 DRAINAGE PLAN SHEET 7
60318562-SHT-CI-0507 5 DRAINAGE PLAN SHEET 8
60318562-SHT-CI-0508 5 DRAINAGE PLAN SHEET 9
60318562-SHT-CI-0522 2 DRAINAGE PLAN OPTION 2 SHEET 1
60318562-SHT-CI-0525 2 DRAINAGE PLAN OPTION 2 SHEET 2
60318562-SHT-CI-0528 2 DRAINAGE PLAN OPTION 2 SHEET 3
60318562-SHT-CI-0600 5 DRAINAGE LONGSECTION SHEET 1
60318562-SHT-CI-0601 5 DRAINAGE LONGSECTION SHEET 2
60318562-SHT-CI-0602 5 DRAINAGE LONGSECTION SHEET 3
60318562-SHT-CI-0603 5 DRAINAGE LONGSECTION SHEET 4
60318562-SHT-CI-0604 5 DRAINAGE LONGSECTION SHEET 5
60318562-SHT-CI-0605 5 DRAINAGE LONGSECTION SHEET 6
60318562-SHT-CI-0606 5 DRAINAGE LONGSECTION SHEET 7
60318562-SHT-CI-0607 5 DRAINAGE LONGSECTION SHEET 8
60318562-SHT-CI-0608 5 DRAINAGE LONGSECTION SHEET 9
60318562-SHT-CI-0609 5 DRAINAGE LONGSECTION SHEET 10
60318562-SHT-CI-0610 5 DRAINAGE LONGSECTION SHEET 11
60318562-SHT-CI-0611 5 DRAINAGE LONGSECTION SHEET 12
60318562-SHT-CI-0612 5 DRAINAGE LONGSECTION SHEET 13
60318562-SHT-CI-0613 5 DRAINAGE LONGSECTION SHEET 14
60318562-SHT-CI-0614 5 DRAINAGE LONGSECTION SHEET 15
60318562-SHT-CI-0615 5 DRAINAGE LONGSECTION SHEET 16
60318562-SHT-CI-0616 5 DRAINAGE LONGSECTION SHEET 17
60318562-SHT-CI-0617 5 DRAINAGE LONGSECTION SHEET 18
60318562-SHT-CI-0618 5 DRAINAGE LONGSECTION SHEET 19
60318562-SHT-CI-0619 5 DRAINAGE LONGSECTION SHEET 20
60318562-SHT-CI-0620 5 DRAINAGE LONGSECTION SHEET 21
60318562-SHT-CI-0621 5 DRAINAGE LONGSECTION SHEET 22
60318562-SHT-CI-0622 5 DRAINAGE LONGSECTION SHEET 23
60318562-SHT-CI-0623 5 DRAINAGE LONGSECTION SHEET 24
72
60318562-SHT-CI-0624 5 DRAINAGE LONGSECTION SHEET 25
60318562-SHT-CI-0625 5 DRAINAGE LONGSECTION SHEET 26
60318562-SHT-CI-0626 5 DRAINAGE LONGSECTION SHEET 27
60318562-SHT-CI-0627 5 DRAINAGE LONGSECTION SHEET 28
60318562-SHT-CI-0628 5 DRAINAGE LONGSECTION SHEET 29
60318562-SHT-CI-0629 5 DRAINAGE LONGSECTION SHEET 30
60318562-SHT-CI-0630 5 DRAINAGE LONGSECTION SHEET 31
60318562-SHT-CI-0631 5 DRAINAGE LONGSECTION SHEET 32
60318562-SHT-CI-0632 5 DRAINAGE LONGSECTION SHEET 33
60318562-SHT-CI-0633 2 DRAINAGE LONGSECTION SHEET 34
60318562-SHT-CI-0634 3 TRUNK DRAINAGE LONGSECTION OPTION 2
60318562-SHT-CI-0640 3 DRAINAGE PIT SCHEDULE SHEET 1
60318562-SHT-CI-0641 3 DRAINAGE PIT SCHEDULE SHEET 2
60318562-SHT-CI-0650 4 COMBINED SERVICES PLAN SHEET 1
60318562-SHT-CI-0651 4 COMBINED SERVICES PLAN SHEET 2
60318562-SHT-CI-0652 4 COMBINED SERVICES PLAN SHEET 3
60318562-SHT-CI-0653 4 COMBINED SERVICES PLAN SHEET 4
60318562-SHT-CI-0654 4 COMBINED SERVICES PLAN SHEET 5
60318562-SHT-CI-0655 4 COMBINED SERVICES PLAN SHEET 6
60318562-SHT-CI-0656 4 COMBINED SERVICES PLAN SHEET 7
60318562-SHT-CI-0657 4 COMBINED SERVICES PLAN SHEET 8
60318562-SHT-CI-0658 4 COMBINED SERVICES PLAN SHEET 9
60318562-SHT-CI-0701 5 UTILITIES PLAN WATER
60318562-SHT-CI-0711 5 UTILITIES PLAN AUSGRID (HV NETWORK)
60318562-SHT-CI-0721 5 UTILITIES PLAN SEWER
60318562-SHT-CI-0731 5 UTILITIES PLAN NBN
60318562-SHT-CI-0741 5 UTILITIES PLAN GAS
60318562-SHT-CI-0900 1 VEHICLE TRACKING SHEET 1
60318562-SHT-CI-0901 1 VEHICLE TRACKING SHEET 2
60318562-SHT-CI-0902 1 VEHICLE TRACKING SHEET 3
60318562-SHT-CI-0903 1 VEHICLE TRACKING SHEET 4
60318562-SHT-CI-0904 1 VEHICLE TRACKING SHEET 5
60318562-SHT-CI-0905 2 VEHICLE TRACKING SHEET 6
60318562-SHT-CI-0906 1 VEHICLE TRACKING SHEET 7
60318562-SHT-CI-0907 1 VEHICLE TRACKING SHEET 8
60318562-SHT-CI-0908 1 VEHICLE TRACKING SHEET 9
60318562-SHT-CI-0909 2 VEHICLE TRACKING SHEET 10
73
SCHEDULE 4
Novation Deed
Draft Deed of Novation
(Planning Agreement)
The Council of the City of Sydney
and
Greenland Golden Horse Investment Pty Ltd ACN 600 607 001
as trustee for
The Greenland Golden Horse Investment Trust ABN 60 504 131 264
and
Greenland Golden Horse Investment No. 5 Pty Ltd ACN 629 257 398
as trustee for
The Greenland Golden Horse Investment Trust No. 5 ABN 98 501 855 702
and
[Name of Party] ABN/ACN/ARBN [number]
TRIM REF: S115891
74
THIS DEED OF NOVATION is made on 20[insert].
BETWEEN:
(1) The Council of the City of Sydney ABN 22 636 550 790 of Town Hall House,
456 Kent Street, SYDNEY NSW 2000 (the City);
(2) Greenland Golden Horse Investment Pty Ltd ACN 600 607 001 as trustee
for The Greenland Golden Horse Investment Trust ABN 60 504 131 264 of
Level 23, 31 Market Street, SYDNEY NSW 2000 (the Developer);
(3) Greenland Golden Horse Investment No. 5 Pty Ltd ACN 629 257 398 as
trustee for The Greenland Golden Horse Investment Trust ABN 98 501 855
702 of Level 23, 31 Market Street, SYDNEY NSW 2000 (the Property 2
Landowner); and
(4) [Insert name] ABN [insert number] of [insert address] (the Incoming Party).
[drafting note: where a Deed of Novation is being entered into as a result of the
proposed transfer by the Developer or the Property 2 Landowner of part or all of
Property 1 or Property 2 to a third party, the Developer or Property 2 Landowner
(as relevant) will be defined as the Outgoing Party, except that the Developer will
only be the Outgoing Party in relation to its obligations in its capacity as the owner
of Property 1. Where a Deed of Novation is being entered into because the
Developer wishes to novate its rights and obligations under the Planning
Agreement, in its capacity as the Developer, to a third party, the Developer will be
defined as the Outgoing Party]
BACKGROUND
(A) The City, the Outgoing Party and [the Developer / the Property 2 Landowner] are
parties to the Planning Agreement.
(B) The Outgoing Party has requested its obligations under the Planning Agreement
be novated to the Incoming Party in relation to the Transfer Land.
(C) The parties agree to novate the Planning Agreement as set out in this Deed.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply in this document.
Effective Date means [insert date of completion of the sale of the Transfer Land]
Planning Agreement means the agreement named “Planning Agreement” dated
[insert] entered into between the City, the Outgoing Party and the [Developer /
Property 2 Landowner] registration number [insert] [OPTION as amended
pursuant to [insert details of any amending documentation].
Transfer Land means [insert description of land] being that part of the Land
subject to the Dealing.
75
1.2 Rules for interpreting this document
Words and expressions defined in the Planning Agreement have the same meaning
in this Deed.
2. NOVATION
The parties acknowledge and agree that the Planning Agreement is novated so
that, on and from the Effective Date in respect of the Transfer Land:
(a) the Incoming Party replaces the Outgoing Party under the Planning
Agreement; and
(b) any reference in the Planning Agreement to the Outgoing Party will be read
as a reference to the Incoming Party.
3. RIGHTS AND OBLIGATIONS
On and from the Effective Date:
(a) the Incoming Party obtains the rights and assumes the obligations and
liabilities of the Outgoing Party under the Planning Agreement in respect of
the Transfer Land, in respect of events occurring on and after the Effective
Date; and
(b) the City and [the Developer / the Property 2 Landowner] must continue to
comply with their obligations and liabilities under the Planning Agreement
on the basis that the Incoming Party has replaced the Outgoing Party under
the Planning Agreement in accordance with this Deed.
(c) [drafting note: this subclause to be deleted if the Developer is novating its
rights and obligations under the Planning Agreement in its capacity as the
Developer, as opposed to its capacity as the owner of Property 1] the
Developer must continue to comply with its obligations and liabilities under
the Planning Agreement other than in respect of the Transfer Land.
4. RELEASE AND LIABILITY
4.1 City
The City releases and discharges the Outgoing Party from:
(a) all of the Outgoing Party’s obligations and liabilities under the Planning
Agreement; and
(b) all actions, claims, demands and proceedings that it may have against the
Outgoing Party in respect of the performance of, and obligations under the
Planning Agreement,
arising in respect of events occurring on or after the Effective Date, in respect of
the Transfer Land.
4.2 Outgoing Party
The Outgoing Party releases and discharges the City from:
76
(a) all of the City’s obligations and liabilities under the Planning Agreement; and
(b) all actions, claims, demands and proceedings that it may have against the
City in respect of the performance of, and obligations under the Planning
Agreement,
arising in respect of events occurring on or after the Effective Date, in respect of
the Transfer Land.
5. CONFIRMATION OF PLANNING AGREEMENT
Subject to this Deed, the City, [the Developer / the Property 2 Landowner] and
the Incoming Party ratify and confirm the Planning Agreement, which remains fully
effective.
6. REPRESENTATIONS AND WARRANTIES
6.1 Authority
Each party represents and warrants to each other party that it has full power and
authority to enter into and perform its obligations under this Deed.
6.2 Authorisations
Each party represents and warrants to each other party that it has taken all
necessary action to authorise the execution, delivery and performance of this Deed
in accordance with its terms.
7. TRUSTEE CAPACITY
7.1 Limitation of Liability – Greenland Golden Horse Investment Pty Ltd
(a) Greenland Golden Horse Investment Pty Ltd ACN 600 607 001 264 (GGH
Trustee Company) enters into this document solely in its capacity as trustee
for The Greenland Golden Horse Investment Trust ABN 60 504 131 (GGH
Trust) and in no other capacity.
(b) A liability arising under or in connection with this document can be enforced
against the GGH Trustee Company only to the extent to which it can be
satisfied out of the property of the GGH Trust out of which the GGH Trustee
Company is actually indemnified for the liability.
(c) The limitation of the GGH Trustee Company’s liability contained in this clause
applies notwithstanding any other provision of this document and extends
to all liabilities of the GGH Trustee Company in connection with this
document.
(d) The other parties to this document may not sue the GGH Trustee Company
in any other capacity other than as trustee of the Trust, including seeking
the appointment to the GGH Trustee Company of a receiver (except in
relation to the property of the GGH Trust), a liquidator, an administrator or
any other similar person.
(e) The provisions of this clause will not apply to any liability or obligation of the
GGH Trustee Company to the extent that there is a reduction in the extent
77
of its indemnification out of the assets of the GGH Trust as a result of the
operation of laws of Australia or the application of any provisions of the GGH
Trust’s constitution or to the extent that the GGH Trustee Company fails to
exercise any right of indemnity it has out of the assets of the Trust.
7.2 Limitation of Liability – Greenland Golden Horse Investment No. 5 Pty Ltd
(a) Greenland Golden Horse Investment No. 5 Pty Ltd ACN 629 257 398 (No. 5
Trustee Company) enters into this document solely in its capacity as trustee
for The Greenland Golden Horse Investment Trust No. 5 ABN 98 501 855
702 (No. 5 Trust) and in no other capacity.
(b) A liability arising under or in connection with this document can be enforced
against the No. 5 Trustee Company only to the extent to which it can be
satisfied out of the property of the No. 5 Trust out of which the No. 5 Trustee
Company is actually indemnified for the liability.
(c) The limitation of the No. 5 Trustee Company’s liability contained in this
clause applies notwithstanding any other provision of this document and
extends to all liabilities of the No. 5 Trustee Company in connection with this
document.
(d) The other parties to this document may not sue the No. 5 Trustee Company
in any other capacity other than as trustee of the Trust, including seeking
the appointment to the No. 5 Trustee Company of a receiver (except in
relation to the property of the No. 5 Trust), a liquidator, an administrator or
any other similar person.
(e) The provisions of this clause will not apply to any liability or obligation of the
No. 5 Trustee Company to the extent that there is a reduction in the extent
of its indemnification out of the assets of the No. 5 Trust as a result of the
operation of laws of Australia or the application of any provisions of the
Trust’s constitution or to the extent that the No. 5 Trustee Company fails to
exercise any right of indemnity it has out of the assets of the No. 5 Trust.
7.3 Trust representations and warranties
If a party enters into this document in its capacity as trustee of a trust (the party),
the party represents and warrants to the City that:
(a) it has power to enter into this document in its capacity as trustee of the
trust;
(b) it has the right to be indemnified to the value of the assets of the trust in
respect of obligations incurred by it under this document and has not done
anything to diminish its rights to be indemnified to the value of the assets
of the trust;
(c) there are and will remain at all times while the party has obligations under
this document, sufficient assets within the trust to ensure that the party is
able to comply with those obligations;
78
(d) the trust has been validly created and is in existence at the date of this
document and the trust will not vest or come to an end during the term of
this document;
(e) no proceedings of any description have been or are likely to be commenced
or threatened which could have a material adverse effect on the assets or
financial position of the trust or it's trusteeship of the trust; and
(f) it is to the commercial benefit of the trust that the party enters into this
document in its capacity, inter alia, as trustee of the trust.
7.4 Trustee obligations
If a party enters into this document in its capacity as trustee of a trust, that party
must:
(a) immediately notify the City in writing if it ceases to be the trustee of the
trust, and procure that any new trustee executes in favour of the City any
documents or guarantees which the City requires and which are no more
onerous than those required or obtained by the City under or in relation to
this document; and
(b) notify the City immediately in writing if the trust is determined or for any
reason ceases to exist, or if it is required or directed by any of the
beneficiaries of the trust to do any act or thing in relation to the trust or the
trust funds of the trust.
8. NOT USED
9. NOT USED
10. GENERAL
(a) This Deed is governed by the laws of New South Wales. The parties submit
to the non-exclusive jurisdiction of the courts of New South Wales in relation
to all matters arising under, or relating to, this Deed.
(b) Each party will take all steps, execute all deeds and do everything
reasonably required by any other party to give effect to any of the actions
contemplated by this Deed.
(c) This Deed may consist of a number of counterparts and the counterparts
taken together constitute one and the same instrument.
(d) Nothing in this Deed in any way restricts or otherwise affects the City’s
unfettered discretion to exercise its statutory powers as a public authority.
79
EXECUTED as a deed.
Signed, sealed and delivered for
THE COUNCIL OF THE CITY OF
SYDNEY by its duly authorised
officer, in the presence of:
Signature of officer
Signature of witness Name of officer
Name
456 Kent Street, Sydney NSW 2000
Position of officer
Address of witness
EXECUTED by Greenland Golden
Horse Investment Pty Ltd in
accordance with s127(1) of the
Corporations Act 2001 (Cth):
Signature of director Signature of director/secretary
Name Name
EXECUTED by Greenland Golden
Horse Park Investment Trust No. 5
Pty Ltd in accordance with s127(1) of
the Corporations Act 2001 (Cth):
Signature of director Signature of director/secretary
Name Name
80
EXECUTED by [INCOMING PARTY]
[ABN] in accordance with s127(1) of
the Corporations Act 2001 (Cth):
Signature of director Signature of director/secretary
Name Name
81
SCHEDULE 5
Easements
Instrument setting out terms of easements or profits à prendre intended to be created or released and of
restrictions on the use of land or positive covenants intended to be created pursuant to Section 88B of the
Conveyancing Act 1919
(Sheet 1 of 9 sheets)
Plan:
Plan of Easement for right of public access and Positive Covenant covered by
Plan No. [insert]
Full name and address of the
owner of the land:
[insert]
The Council of the City of Sydney ABN 22 636 550 790
456 Kent Street
Sydney NSW 2000
Part 1 (Creation)
Number of
item shown in
the intention
panel on the
plan
Identity of easement, profit à prendre, restriction
or positive covenant to be created and referred
to in the plan
Burdened lot(s)
or parcel(s)
Benefited lot(s),
road(s), bodies
or Prescribed
Authorities
1
Right of public access marked A on the Plan,
[X]m wide and variable, limited in height and in
depth as delineated on the Plan (Through-Site
Link)
[insert]
The Council of
the City of
Sydney
2
Positive Covenant in relation to the right of
public access
[insert]
The Council of
the City of
Sydney
Part 2 (Terms)
1 INTERPRETATION
1.1 DEFINITIONS
In this Instrument:
Act means the Environmental Planning and Assessment Act 1979 (NSW) (as amended) and includes any regulations made under the Act.
Authorised User means every person authorised by the Council of the City of Sydney for the purposes of the Easement created by this Instrument, including:
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(a) employees, agents, servants, contractors, workmen and licensees of the Council;
and
(b) members of the public.
Council means the Council of the City of Sydney and its successors.
Easement means the easement in this Instrument and includes the conditions in relation to that easement.
Easement Site means, in relation to the Easement in this Instrument:
(a) the site of the Easement on the Plan, including any limitations by height or depth; and
(b) all items within the site of the Easement identified on the Plan which are the subject of the Easement.
Emergency Situation means any circumstance involving a need, for reasons of safety, for evacuation or egress from a building or other place, including fire, earthquake, flooding, terrorist activity and any training or test of such evacuation or egress.
Instrument means this instrument under section 88B of the Conveyancing Act 1919 (NSW).
Lot Burdened means the land referred to in Part 1 of this Instrument as being the land burdened by the Easement, or any part of it.
Owner of the Lot Burdened means every person who is at any time entitled to an estate or interest in the Lot Burdened, including any freehold or leasehold estate or interest in possession in the Lot Burdened and each part of the Lot Burdened.
Plan means the plan of easements registered together with this Instrument.
Planning Agreement means the planning agreement dated [#] between the Developer
and the Council entered into pursuant to subdivision 2 of Division 7.1 of Part 7 of the Act.
Site means the land known as [insert] and comprising folio identifier [insert] [insert current
title details at date of registration].
1.2 INTERPRETATION
(a) The singular includes the plural and the plural includes the singular.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(d) ‘clause’, ‘paragraph’, ‘schedule’ or ‘sub-clause’ means a clause, paragraph, schedule
or sub-clause respectively of this Instrument.
(e) Unless stated otherwise, one provision does not limit the effect of another provision.
(f) A reference to any law or to any provision of any law includes any modification or re-enactment of it, any legislative provisions substituted for it and all regulations and statutory instruments issued under it or them.
(g) A reference to conduct includes any omission, statement or undertaking, whether or
not in writing.
83
(h) Headings in this Instrument are for information purposes only and do not affect the
interpretation of this Instrument.
(i) A reference to a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator
or successor in law of the person.
(j) An agreement on the part of, or in favour of, two or more persons binds, or is for the benefit of, them jointly and severally.
(k) Includes means includes but without limitation.
1.3 CONDITIONS
Each of the provisions of this Easement will constitute and be covenants and agreements by and between the Owner of the Lot Burdened and the Council for themselves and their
respective successors, assigns and transferees with the intention and agreement that the benefit and burden of such covenants and agreements will pass with the benefit and burden
of the Easement.
1.4 NO FETTER
(a) Nothing in this Instrument in any way restricts or otherwise affects the unfettered discretion of the Council in the exercise of its statutory powers as a public authority.
(b) If any conflict arises between the unfettered discretion of the Council in the exercise of its powers as a statutory authority and the performance of any right or obligation in this Instrument, the former prevails.
1.5 GST
(a) In this clause 1.5:
(i) GST Law has the meaning given in the A New Tax System (Goods and
Services Tax) Act 1999 (Cth); and
(ii) terms used in this clause which are not defined in this Instrument, but which are defined in the GST Law, have the meanings given in the GST Law.
(b) Unless otherwise stated in this Instrument, amounts payable, and consideration to be provided, under any other provision of this document exclude GST.
(c) If GST is payable on a supply made in connection with this Instrument, the recipient must pay the party making the supply (supplier) an additional amount equal to the GST payable on that supply provided that the supplier first issues a tax invoice to
the recipient.
(d) If an adjustment event arises in connection with a supply made in connection with this Instrument:
(i) the supplier must recalculate the GST payable to reflect the adjustment event;
(ii) the supplier must give the recipient an adjustment note as soon as
reasonably practicable after the supplier becomes aware of the adjustment event; and
(iii) the adjustment amount must be paid without delay either by the recipient to the supplier or by the supplier to the recipient as the case requires.
84
(e) If a payment to a party under this Instrument is a reimbursement or indemnification,
calculated by reference to a loss, cost or expense incurred by that party, the payment will be:
(i) reduced by the amount of any input tax credit to which that party is entitled
for that loss, cost or expense; and
(ii) then, increased by an amount equal to the GST payable if and to the extent that the payment is consideration for a taxable supply.
2 TERMS OF RIGHT OF PUBLIC ACCESS NUMBERED 1 ABOVE
2.1 TERMS OF THE EASEMENT
Subject to clauses 2.3, 2.4 and 2.5, the Owner of the Lot Burdened grants:
(a) to the Council and its Authorised Users full and free right to go, pass and repass over
the Easement Site at all times:
(i) on foot or with wheelchairs or other disabled access aids, but excluding all other vehicles; and
(ii) with or without animals, for all lawful purposes; and
(b) to the Council the right to erect within the Easement Site such artworks, street
furniture, directional signage and other improvements which the Council considers consistent with the purpose of the Easement Site specified in clause 2.2, provided the Council obtains the consent of the Owner of the Lot Burdened to such erection (which consent may not be unreasonably withheld).
2.2 PURPOSE OF EASEMENT
The Council and the Owner of the Lot Burdened acknowledge and agree that the Easement
is being provided at no cost to the public and is for the purpose of providing access over the
Easement Site to any member of the public.
2.3 WORKS TO LOT BURDENED
(a) Subject to ensuring the provision of access in accordance with clause 2.2 and compliance with the requirements of clause 2.4, the Owner of the Lot Burdened may carry out works of any nature on or about the Lot Burdened, including constructing, installing, removing, redeveloping or otherwise changing improvements on or about
the Easement Site.
(b) Despite clause 2.3(a), the Owner of the Lot Burdened may not install or erect works of art, street furniture, awnings, tables and chairs associated with ground floor retail premises, notice boards or any other improvement at ground level or balconies above ground level within the Easement Site unless the Owner of the Lot Burdened obtains the consent of the Council to such erection (which consent may not be unreasonably withheld).
2.4 RESTRICTIONS ON ACCESS
The Owner of the Lot Burdened may temporarily close, or temporarily restrict access through part (but not all) of the Easement Site for the purpose of, or as a result of:
(a) the construction, repair or maintenance of any improvement on the Site; or
(b) carrying out obligations under clause 3.1 or any other obligation under this Instrument,
85
provided that:
(c) such restriction is for a period not exceeding one month or such other period of time as agreed by the Council; and
(d) the Owner of the Lot Burdened:
(i) obtains the prior written consent of the Council and complies with any conditions imposed on that consent; and
(ii) takes reasonable steps to minimise the disturbance caused in accordance with the rights granted under clause 2.1.
2.5 EMERGENCIES
(a) The Owner of the Lot Burdened may restrict temporarily access to the Easement Site in an Emergency Situation provided that it gives as much notice as is practicable to
the Council and uses all reasonable endeavours to resolve the Emergency Situation and restore access to the Easement Site as soon as possible.
(b) The Council may erect temporary signage or barriers on the Easement Site to restrict temporarily access to the Easement Site by members of the public if it reasonably forms the view that such access is unsafe.
(c) Despite any other provision of this Instrument:
(i) the Owner of the Lot Burdened must allow the Easement Site to be used for access by all emergency and other essential service organisations; and
(ii) the Owner of the Lot Burdened must not interfere with such access.
2.6 INDEMNITY
The Owner of the Lot Burdened indemnifies the Council against any claims or damages
arising from the use of the Easement Site by the Council and any of its Authorised Users except where the claim or damage is caused by, or contributed to by, the wilful or negligent
act or omission of the Council.
2.7 PERSONS EMPOWERED TO RELEASE, VARY OR MODIFY THE RIGHT OF PUBLIC ACCESS
This Right of Public Access may only be released, varied or modified with the consent of both the Council and the Owner of the Lot Burdened.
3 TERMS OF POSITIVE COVENANT IN RELATION TO THE RIGHT OF PUBLIC ACCESS NUMBERED 1 ON THE PLAN
3.1 MAINTENANCE OF EASEMENT SITE
The Owner of the Lot Burdened must:
(a) at all times, maintain the Easement Site (including the lighting) in good repair;
(b) not permit the Easement Site to fall into disrepair so that the use of the Easement Site becomes unsafe or impractical or impossible;
(c) keep the Easement Site clean and free from rubbish;
86
(d) if required by Council, permit the Council to enter the Easement Site with equipment,
machinery and street sweeping vehicles to clean the Easement Site after special events, including New Year’s Eve; and
(e) if required by Council, upgrade and refurbish the Easement Site, in accordance with
the reasonably requirements of, and to the reasonable satisfaction of, the Council, including in accordance with the requirements of the Council’s Public Domain Manual.
3.2 PUBLIC LIABILITY INSURANCE
(a) The Owner of the Lot Burdened must take out and maintain a public liability insurance policy with respect to any liabilities to the Council or any other person for the death or injury of any person within or about the Easement Site for an amount in respect of any single accident of not less than $20 million, or such higher amount
as may be required by the Council (acting reasonably).
(b) The policy referred to in paragraph 3.2(a) must:
(i) note the Council as an interested party; and
(ii) be taken out and maintained with an insurer licensed by the Australian Prudential Regulation Authority to operate in Australia or have an investment grade security rating from an industry recognised rating agency such as
Standard and Poors, Moodys or Bests.
3.3 PERSONS EMPOWERED TO RELEASE, VARY OR MODIFY THE POSITIVE COVENANT
This Positive Covenant may only be released, varied or modified with the consent of both Council and the Owner of the Lot Burdened.
Dated........................................................................
Execution by the parties:
Signed for and on behalf of Council of the City of
Sydney by its duly authorised person in the
presence of:
)
)
)
87
.....................................................................
Signature of Witness
......................................................................
Name of Witness (print)
.....................................................................
.....................................................................
Address of Witness (print)
...................................................................
Signature of authorised person
...................................................................
Name of authorised person (print)
[insert appropriate execution block for owner]
88
EXECUTED as a deed.
Signed, sealed and delivered for
THE COUNCIL OF THE CITY OF
SYDNEY by its duly authorised
officer, in the presence of:
Signature of officer
Signature of witness Name of officer
Name
456 Kent Street, Sydney NSW 2000
Position of officer
Address of witness
EXECUTED by Greenland Golden
Horse Investment Pty Ltd in
accordance with s127(1) of the
Corporations Act 2001 (Cth):
Signature of director Signature of director/secretary
Name Name
EXECUTED by Greenland Golden
Horse Park Investment Trust No. 5
Pty Ltd in accordance with s127(1) of
the Corporations Act 2001 (Cth):
Signature of director Signature of director/secretary
Name Name
90
ANNEXURE A
Public Benefits – Indicative Phasing Plan
92
ANNEXURE A
Public Benefits – Transfer Land
94
ANNEXURE A
Public Benefits – Public Domain Strategy
98
ANNEXURE A
Public Benefits - Additional specifications
1. Maintain all plants, trees and planted areas in optimum growing condition and
appearance. which shall include but is not limited to:
(a) Water all plants and trees as required to ensure active growth keeping areas
moist but not saturated.
(b) Apply maintenance period fertiliser in accordance with the manufacturer’s
specifications.
(c) Keep planting areas free of weeds and undesirable grasses. Remove the entire
root system. Dispose of all weeds appropriately.
(d) Inspect all plants and trees for disease or insect damage weekly. Treat affected
material immediately.
(e) Remove damaged or diseased growth from plants and trees.
(f) Immediately replace any failed or damaged plants and trees. Replacement
plants and trees shall be of equal size and species as the original plant.
(g) Reset to proper grades or upright position any plants that are not in their proper
growing position.
(h) Stakes and ties must be adjusted or replaced as required.
(i) Prune plants and trees in order to repair mechanical damage, improve plant
shape and to form or clear footpaths.
(j) Turfed areas must be mowed when sufficient establishment of turf has occurred
including but not limited to adequate root contact/anchoring and root depth. All
edges must be trimmed. Lawn clippings must be removed from site. Adjust the
height of the mower to the lowest level where the lawn has a green appearance
without being scalped.
(k) Topdress lawn when required and replace any areas of subsidence or dead turf
which are greater than 1m2 in area. Apply lawn fertiliser to ensure healthy
growth in the growing season. Remove by hand all weed growth or grass around
base of plants in turf. Do not use nylon line type edge trimmers around base of
trees.
99
ANNEXURE B
Trunk Drain Design Option X
102
ANNEXURE C
Trunk Drain Design Option Y
106
ANNEXURE D
Example Monetary Contribution Notice for Phase 4
Each Monetary Contribution Notice should reference:
• this Planning Agreement (as amended)
• Notice of Determination for the Development Consent for the Phase the subject of
the Monetary Contribution Notice
• All Monetary Contribution Notices for previous Phases
The following table sets out the approach to be taken to the calculation of the Shortfall,
Cumulative Shortfall and Shortfall Guarantee Amount in the Monetary Contribution Notice.
The figures used in these calculations are for illustrative purposes only and do represent
the actual figures for the relevant Phases referred to.
Step Instruction Phase 4 Example
1 Calculate Shortfall for Phase (SF) in accordance with Item 7C of Schedule 1 (including indexing)
SF = Q - (R+S)
Q = $2,100,000
R = $1,300,000
S = $3,900,000
SF4 = -$3,100,000
2 Calculate Cumulative Shortfall (CS) by adding Shortfall for this Phase with any previous Phase Shortfalls (included in previous Monetary Contribution Notices)
CS = (SF1 + SF2 … SF7)
SF1 = $2,750,000
SF2 = $475,000
SF3 = -$2,412,500
SF4 = -$3,100,000
CS = -$2,287,500
3 Confirm all Shortfall Guarantees held for previous Phases (exclude any Shortfall Guarantees that have been applied/reassigned as security against S7.11 Works)
T = (SG1+SG2 … SG6)
SG1 = $2,750,000
SG2 = $475,000
SG3 = -$2,412,500 (this amount released or re-allocated at Phase 3)
T = $812,500
4 Calculate change in Shortfall Guarantee Amount at Phase
SG = (CS – T)
Note: If SG is less than zero then Shortfall Guarantees held for previous Phases are to be released in full. If SG is greater than zero, then Shortfall Guarantees held need to be adjusted (topped up or released to equal that amount).
CS = -$2,287,500
T = $812,500
SG = -$3,100,000
107
EXECUTED as a deed.
Signed, sealed and delivered for
THE COUNCIL OF THE CITY OF
SYDNEY by its duly authorised
officer, in the presence of:
Signature of officer
Signature of witness Name of officer
Name
456 Kent Street, Sydney NSW 2000
Position of officer
Address of witness
EXECUTED by Greenland Golden
Horse Park Investment Pty Ltd in
accordance with s127(1) of the
Corporations Act 2001 (Cth):
Signature of director Signature of director/secretary
Name Name
EXECUTED by Greenland Golden
Horse Park Investment Trust No. 5
Pty Ltd in accordance with s127(1) of
the Corporations Act 2001 (Cth):
Signature of director Signature of director/secretary
Name Name