meeting notice of extraordinary general

PBC EMERALD LAKES CTS 31623

NOTICE OF

EXTRAORDINARY GENERAL MEETINGPBC EMERALD LAKES CTS 31623

DATE Friday 05 November 2021

TIME 2:30 PM

LOCATION 3030 The Boulevard, Carrara QLD, Australia, Community Room


Friday 15 October 2021

NOTICE OF EXTRAORDINARY GENERAL MEETINGPBC EMERALD LAKES CTS 31623DATE & TIME Friday 05 November 2021 at 2:30 PMLOCATION 3030 The Boulevard, Carrara QLD, Australia Community Room

The agenda lists the items of business and motions to be considered at the meeting. The accompanying voting paper states the details of each motion.

The explanatory schedule may contain an explanatory note for a motion.

Attendance RecordAdmittance of Proxies & Voting PapersApologiesQuorum

1. Confirmation Of Minutes Of Previous Meeting

2. Increase In Major Spending

3. Entrance Into Facilities Management Agreement

4. Entrance Into Gardening And Landscaping Agreement

Motions 1 – 4 were submitted by the commmittee

ONLINE VOTING OPEN DATE & TIME 15 October 2021 at 1:00 PM

CLOSE DATE & TIME 05 November 2021 at 12:00 PM

Name/s of voter/s: __________________________________________________________________________________________

Signature/s of voter/s: ___________________________________________ Lot No/s: ____________ Date: _______________


VOTING PAPERExtraordinary General Meeting of PBC EMERALD LAKES CTS 31623Friday 05 November 2021 at 2:30 PM

Electronic voting will be conducted via the VoteMax system and in accordance with the instructions contained on the VoteMax voting paper and the VoteMax system. You may access VoteMax through your StrataMax online portal at the following web address http://www.stratamax.com.au/votemax. To submit your electronic votes please follow the instructions on the VoteMax system and ensure that you declare your votes on the final page.

To vote on these motions using this voting paper:1. Tick Yes, No or Abstain then sign the bottom of each page.2. Please forward to: The Secretary , PO Box 1509, Runaway Bay QLD 4216,

Email: [email protected] | Fax: 07 5528 9977

1. CONFIRMATION OF MINUTES OF PREVIOUS MEETING

Statutory

Ordinary Resolution

That the minutes of the Annual General Meeting held on 24 May 2021 be confirmed as a true and accurate account of that meeting.

Explanatory notes exist for this motion. Refer to the Explanatory Schedule for further information.

Yes No Abstain

2. INCREASE IN MAJOR SPENDING

Procedural

Ordinary Resolution

That the Body Corporate resolves and authorises to increase the relevant limit for major spending for the Body Corporate to an amount of $300.00 multiplied by the number of layered lots for the scheme (1137 lots) in accordance with Schedule 1 of the Body Corporate and Community Management Act (Accommodation Module). This will bring the relevant limit for major spending to $341,100.00.


Yes No Abstain

Name/s of voter/s: __________________________________________________________________________________________



3. ENTRANCE INTO FACILITIES MANAGEMENT AGREEMENT

Procedural

Ordinary Resolution

a. That the Body Corporate resolves to enter into and sign under seal the Facilities Management Agreement (‘FMA’) which is in substantially the same form as that attached to this agenda, with the duly appointed trustee for the Grason Trust ABN 83224116969, or its related entity of which Graham Tonkin is a director, for:

i. A term of 363 days commencing on the date that this motion is resolved (‘Commencement Date’) and ending on the date which is 363 days after the Commencement Date (‘End Date’); and

ii. An annual salary of $120,000.00 exclusive of GST for the term,

and otherwise in accordance with the terms and conditions of the FMA attached to this agenda (with such minor changes as required); and

b. And that Graham Tonkin is appointed as the Facilities Manager’s Representative pursuant to clause 9 of the FMA;

c. And that the Body Corporate Manager is authorised to complete any blanks in the FMA as necessary and that two members of the Committee (one of which must be the Chairperson/Secretary) are authorised to execute the FMA under seal; and

d. All previous caretaking agreement(s), facility/building management and gardening agreements are hereby terminated and replaced from the Commencement Date of the FMA referred to in item (a)(i) above.


Yes No Abstain

Name/s of voter/s: __________________________________________________________________________________________



4. ENTRANCE INTO GARDENING AND LANDSCAPING AGREEMENT

Statutory

Ordinary Resolution

a. That the Body Corporate resolves to enter into and sign under seal the Gardening and Landscaping Agreement (‘GLA’) which are in substantially the same form as that attached to this agenda, with the trustee duly appointed for the Bryan Weston Family Trust ACN 60 466 139 974, or its related entity of which Bryan Weston is a director, for:

i. A term of 363 days commencing on the date that this motion is resolved (‘Commencement Date’) and ending on the date which is 363 days after the Commencement Date (‘End Date’); and

ii. An annual salary of $270,000.00 exclusive of GST for the term,and otherwise in accordance with the terms and conditions of the GLA attached to this agenda (with such minor changes as required); and

b. And that Bryan Weston is appointed as the Approved Person pursuant to clause 5.2 of the GLA;

c. And that the Body Corporate Manager is authorised to complete any blanks in the GLA as necessary and that two members of the Committee (one of which must be the Chairperson/Secretary) are authorised to execute the GLA under seal; and

d. Apart from the BMA referred to in motion 3 above, all previous caretaking agreement(s), facility/building management and gardening agreements are hereby terminated and replaced from the Commencement Date of the GLA referred to in item (a)(i) above.


Yes No Abstain


EXPLANATORY SCHEDULE

Extraordinary General Meeting of PBC EMERALD LAKES CTS 31623

Friday 05 November 2021 at 2:30 PM

1. CONFIRMATION OF MINUTES OF PREVIOUS MEETING

Statutory

Ordinary Resolution

To confirm that the minutes are a true and correct record of that meeting.

2-4. EXPLANATORY NOTES TO MOTIONS 2-4

Procedural

Ordinary Resolution

Your Committee has been working hard in preparing new Agreements for the future maintenance and gardening works required for the PBC Common Property. After trialling an ‘all in one’ agreement, the PBC Committee has resolved that future caretaking would be best to split into two separate agreements.Accordingly, your Committee is proposing for there to be a Facilities Management Agreement as well as a Gardening and Landscaping Agreement. By splitting the duties into two, the PBC can engage specialised contractors for those two roles and the Committee considers that specialists would deliver a higher standard of service for the Scheme.The Committee has engaged in extensive interviews and consider the proposed Facilities Manager (FM) and Gardener and Landscaper (GL) are ideal candidates for the jobs at hand. Bryan Weston is a university qualified horticulturist and Graham Tonkin has over 40 years of experience in the building and construction industry with 14 years’ experience in Jeffry Hills and Associates as a construction manager.These qualifications and experience will be invaluable to the PBC and, in turn, the subsidiaries.With that said, the offer put to both the FM and GL is for a 363 day agreement, accordingly, this period will run as a trial for both individuals/entities. Should the PBC not be satisfied with their performance, a review can occur next year whereby no commitment has been made to re-engage either individual or entity.In order to facilitate the entrance into these new and future agreements and to ensure that the best candidate is being put to the subsidiaries, the PBC is required to increase its major spending limit. The amount of $341,100 is sufficient to allow the committee to reappoint the contractors as necessary without the need to obtain further quotes.While members of your Committee have spent many hours drafting, discussing, negotiating, and interviewing to come to this point, it is pleased with the outcome and pleased with the FM and GL being proposed.Accordingly, the Committee encourages all subsidiaries to vote in favour of the above motions so that the future maintenance, upkeep and improvement of PBC common property can proceed.As always, if you have any questions, please feel free to contact a member of your PBC committee or Nick Jones.The Committee looks forward to resolving these matters.

Body Corporate and Community Management Act 1997Body Corporate and Community Management (Accommodation Module) Regulation 2020

Statement Regarding Meeting Procedure and Voters' Rights for an Annual General Meeting

1. Section 91 of the Accommodation Module Regulation defines a “ voter” for general meeting as an individualwhose name is entered on the body corporate roll as an owner, or the corporate owner nominee of acorporation or corporate owner of a lot.

2. Section 94 of the Accommodation Module Regulation provides that a “ voter” may vote on a motion personally,by proxy or by casting a written vote.

3. A notice is enclosed for a corporate owner to appoint a corporate owner nominee to vote on its behalf.

4. A person cannot vote on a motion requiring an ordinary resolution or a special resolution, or, in an electionballot, if a contribution, instalment or penalty due to the body corporate has not been paid.

5. A person has one (1) vote for each lot the person owns or represents.

6. Where there are two (2) or more co-owners of a lot, a vote by any one (1) of the co-owners will be counted asthe vote for the lot unless a contrary vote is cast by another co-owner in which case no vote will be counted forthe lot.

7. A voter may demand that a motion requiring an ordinary resolution be determined by a poll of the ContributionSchedule Lot Entitlements of voters, instead of on the basis of one vote for each lot. An owner or the owner’sproxy may make the demand in writing beside the motion where it appears on the Voting Paper, or personallyat the meeting.

8. A vote by proxy must not be exercised at a General Meeting on a ballot for the election of a member of thecommittee, or for otherwise choosing a member of the committee.

9. A vote by proxy must not be exercised at a general meeting on a motion decided by secret ballot.

10. A vote by proxy must not be exercised at a general meeting on a motion approving-

(i) the engagement of a person as the body corporate or a service contractor, or the authorisation of aperson as a letting agent; or

(ii) the amendment or termination of an engagement or authorisation mentioned in subparagraph (i)


Proxy Formfor Body Corporate General Meetings

To: The SecretaryEmerald Lakes CTS 31623PO Box 1509Runaway Bay QLD [email protected]

I/We (full name(s) ___________________________________________________________________

Signature ________________________________________________ Dated: ____________________

Signature ________________________________________________ Dated: ____________________

being the owner(s) of Lot(s) __________________________________ on Plan No. CTS 31623

appoint (full name(s) _________________________________________________________________

as my / our proxy to vote on my / our behalf (including adjournments) at (tick one):-

the General Meeting to be held on 05 November 2021or

all general meetings held before _________________________________________________or

all general meetings held during the rest of the body corporate’s financial year (i.e. to 28 February 2022)unless I/we serve you with a prior written withdrawal of the appointment.

Signature of ___________________________________________Dated ______________proxy holder

Residential address: ______________________________________________________________of proxy holder

______________________________________________________________

Postal address ______________________________________________________________of proxy holder

______________________________________________________________

The Regulations set out a number of restrictions on the use of proxies, including an ability for the body corporate tofurther restrict their use including prohibition.

If there is insufficient space, please attach separate sheets.

A vote by proxy must not be exercised at a General Meeting for electing or appointing a member of thecommittee.

A vote by proxy must not be exercised on a motion to be decided by Secret Ballot.

A vote by proxy must not be exercised on a motion to appoint a Service Contractor.


COCORPORATE OWNER NOMINEE FORM

To: The SecretaryEmerald Lakes CTS 31623PO Box 1509Runaway Bay QLD [email protected]

Body Corporate Name: Emerald Lakes CTS 31623

Name of Corporation:

Lot Number (s):

The following individual is the nominee of a Corporate Owner or Corporate Mortgagee in Possession, being aCorporation entitled to be entered on the roll of the Body Corporate and is authorised to exercise or perform anypower, authority, duty or function conferred by or under the Body Corporate and Community Management Act 1997on the corporation as the owner of the said lot.

Details for entry in the roll are:

Full name of Nominee:

Residential Address of Nominee:

Address for service of Nominee:

Date of appointment of Nominee:

Signature of Nominee:

Dated:

Execution by the Corporation:

X

The Common Seal of theCorporation named in thisdocument was affixed byauthority of its Board ofDirectors in the presence of:

X

OR

X

Executed for and on behalf ofthe Corporation named in thisdocument where the companydoes not have a common seal,in accordance with section127(1) of Corporations Act2011 (Cth) X

FACILITIES MANAGEMENT AGREEMENT

THIS AGREEMENT is made the day of 2021.

BETWEEN: THE BODY CORPORATE FOR EMERALD LAKES CTS 31623 ABN 44 759 935 197 a Body Corporate constituted under the Body Corporate and Community Management Act 1997 C/ Peak Body Corporate Management – PO Box 1509, Runaway Bay Qld 4216 ("the Body Corporate")

AND: THE DULY APPOINTED TRUSTEE FOR GRASON TRUST ABN 83224116969 of 146 Monaro Road, Mudgeeraba QLD 4213 ("the Facilities Manager")

AND: [INSERT] of c/- [insert] of (“the Guarantor/s”)

1 INTRODUCTION:

A. The Body Corporate was established upon creation of Community Titles Scheme No. 31623, and it is the Principal Body Corporate for the Estate.

B. The Body Corporate has the responsibility to administer the Estate and specifically, the Common Property for the benefit of all Owners.

C. The Body Corporate will appoint a Body Corporate Manager for the provision of administrative services in accordance with the Body Corporate and Community Management Act Qld 1997.

D. The Body Corporate will appoint a Facilities Manager to assist the Body Corporate to maintain and administer the Estate and specifically the Common Property and Body Corporate assets.

E. The purpose of this Agreement is to specify defined outcomes expected of both parties to achieve the desired living environment and ambience for occupiers and their properties at Emerald Lakes. The Agreement sets forth systems and procedures to be applied with common sense to achieve this purpose. Underpinning the Agreement is the importance of communication and expectation of the parties to properly and comprehensively monitor the administration and operation of the Estate. Of the utmost importance is the obligation of the parties, Body Corporate Committee and the Facilities Manager to monitor expenditure and ensure that all expenditure falls within the budgets of the Body Corporate and reports are given to the Committee of the Body Corporate on a monthly or quarterly basis.

The Parties agree as follows:-

2 DEFINITIONS

2.1 In this Agreement the following words and phrases have the following meanings except to the extent that the context otherwise requires:-

Act means the Body Corporate and Community Management Act Qld 1997 or any act that replaces this Act.

Agreement means this Facilities Management Agreement and all its referenced inclusions and attachments.

Associates means:

(i) if the Facilities Manager is a company, its directors, substantial shareholders and its management staff; or

(ii) if the Facilities Manager is a partnership, the partners and management staff of the partnership.

Body Corporate Manager means the body corporate manager engaged by the Body Corporate as defined in section 14 of the Act.

Facilities Management Duties means the duties of the Facilities Manager set out in this Agreement and specifically those detailed in clause 6 and Schedule 1.

Business Information means all information of and incidental to the Body Corporate’s:

(i) Industrial, marketing and commercial knowledge;

(ii) Internal management, structure, personnel, policies, strategies, customers, suppliers or affairs;

(iii) Intellectual Property; and

(iv) Financial position,

disclosed to or learned by the Facilities Manager (including its assignees, associates, delegates, agents, officers, employees and subcontractors) in the course of, or connection with, the entry into this Agreement and/or the performance of the Facilities Management Duties.

By-Laws means the by-laws contained in the Community Management Statement of the Body Corporate (retained by the duly appointed Body Corporate Manager).

Committee for a body corporate, means a committee established under the Body Corporate and Community Management Act Qld 1997 for the Body Corporate from time to time.

Common Property means common property for the Body Corporate (as defined in the Act) from time to time including all chattels, fixtures, plant and equipment located on Common Property but excludes any exclusive use areas or common property of any subsidiary scheme

Community Titles Scheme means that community titles scheme referred to in the introduction.

Confidential Information means:

(i) Any information, material and data relating in any way to the Facilities Management Duties including all reports, tests, recommendations or advice prepared for or given by one party to the other;

(ii) Any information provided by one party to the other under this Agreement or during the negotiations preceding this Agreement;

(iii) The terms and conditions of the Agreement; and

(iv) Business information.

Dealing means a sale, sublease, mortgage, assignment, sub-licence, encumbrance, franchise.

Estate means the community title scheme ‘Emerald Lakes’ CTS 31623.

End Date means ________________________________.

GST has the meaning it has in the GST Act.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999

(Cth) and includes any related Acts or regulations.

High Standard means a standard which meets, if not exceeds, the expectations and standards of a skilled, experienced and knowledgeable Facilities Manager/ contractor

Index means for a particular date, the percentage increase or decrease in the All Groups Consumer Price Index for the City of Brisbane during the year to the end of the last quarter before the particular date.

Intellectual Property means all rights as conferred by law, equity and statue in relation to inventions, designs, patents, databases, trademarks, service marks, logos, get up, style, circuit layouts, trade secrets and all other such rights.

Lot or Lots means any Lot or Lots detailed in the Community Titles Scheme as the context requires.

Minor Repairs applies to tasks that are usually performed by un-skilled persons using basic hand tools and can be completed in less than one hour. Minor repairs are repairs where the outcomes of poor workmanship or materials will not place people in or around the building at any significant risk, or for repairs that provide a stop gap before a more permanent repair can be made. Minor repairs should not apply to aesthetic works such as plastering, painting (other than minor touch up painting), tiling, paving, etc., except where required to rectify graffiti.

Module means the Body Corporate and Community Management (Accommodation Module) Regulations Qld 2008 or any regulation which replaces it.

Moral Rights means rights integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed and rights of a similar nature conferred by statute that exist or may come to exist, anywhere in the world.

Nominee means the person(s) nominated by the Body Corporate under clause 14.1.

Parties means the Body Corporate and the Facilities Manager.

Remuneration means the remuneration to be paid by the Body Corporate to the Facilities Manager under clause 5.

Specialist Equipment means equipment that:

(i) cannot be operated lawfully by a person unless that person has a Licence, permission or authority from the government or industry body;

(ii) equipment that is infrequently used in the Facilities Management Duties and would require frequent use or substantial experience to operate efficiently and in a good and workmanlike manner; or

(iii) equipment that because of its size or expense and infrequent use would not normally be owned by the Body Corporate or a Facilities Manager of a strata titled resort building.

Specialist Work means work that:

(i) requires Specialist Equipment for it to be carried out in an efficient and good and workmanlike manner;

(ii) requires qualification, Licence, permission or authority from a government body for it to be performed legally;

(iii) cannot be performed efficiently or safely without Specialist Equipment; or

(iv) requires knowledge of a specialist nature that would not normally be known to a reasonably experienced Facilities Manager of a strata title resort building (e.g. fixing an engine where the knowledge of a mechanic would be required).

Including but not limited to the following:

a) painting or cleaning the outside of the various buildings within the Estate where it requires trestles or a cherry picker; and

b) providing advice about body corporate law.

Start Date means ________________________________.

Term means the term of this Agreement from the Start Date to and including the End Date.

3 INTERPRETATION

Unless the contrary intention appears in this Agreement, the following applies to this Agreement: Queensland law applies.

Words denoting the singular include the plural and vice versa.

Reference to a Schedule are references to the Schedules appearing in this Agreement.

Reference to this Agreement includes reference to this Agreement together with any amendments or variations of this Agreement.

References to any party in this Agreement, includes that party's successors, executors, administrators or assigns.

Words denoting any gender shall include all genders.

A covenant by more than one (1) person is given by them jointly and severally.

References to any legislation includes legislation which amends or replaces that legislation.

Reference to a person includes a corporation or trustee.

Text printed in italics provides an example or explanation of the intended operation of the relevant clause and may be used to assist in the resolution of a dispute about the interpretation of that clause.

This Agreement is the entire agreement of the Parties.

4 ENGAGEMENT OF FACILITIES MANAGER

4.1 The Body Corporate hereby engages the Facilities Manager as the Facilities Manager of the Estate for the Term of 363 days, commencing on Start Date and ending on the End Date. The Facilities Manager accepts such engagement.

4.2 The Facilities Manager is engaged by the Body Corporate as an independent contractor.

4.3 The Facilities Manager and Body Corporate acknowledge and agree that the Facilities Manager is not an employee of the Body Corporate.

5 REMUNERATION OF FACILITIES MANAGER

5.1 In consideration of the performance by the Facilities Manager of the Facilities Management Duties pursuant to this Agreement, the Body Corporate must pay the Facilities Manager the annual Remuneration during the Term.

5.2 The annual Remuneration must be paid by equal calendar monthly instalments in arrears commencing one (1) calendar month after the Start Date, and on the same date each month thereafter.

5.3 The annual Remuneration for the Term is one hundred thousand dollars ($120,000.00) excluding GST.

5.4 In addition to the Remuneration, the Facilities Manager will be paid an emergency callout fee (‘Callout Fee’) of $75.00 excluding GST per hour, where it has been required by the Committee and/or due to a genuine emergency at the Scheme, to attend the Scheme and/or provide reasonable assistance to the Body Corporate, outside of the Onsite Hours.

5.5 Where applicable, payments for Callout Fees shall be made by calendar monthly instalments in arrears, on the same day of the month as the Remuneration payment.

5.6 Words and expressions used in this clause have the meaning as so defined under the A New Tax System (Goods and Services Tax) Act 1999 (Cth):

(a) It is agreed that all amounts which the Body Corporate must pay to the Facilities Manager under this Agreement are exclusive of GST.

(b) If the Facilities Manager must pay GST in respect of any supply of goods or services under this Agreement by the Facilities Manager to the Body Corporate, then the payment by the Body Corporate to the Facilities Manager for such goods or services must be increased by the prevailing GST rate to include the amount of GST payable by the Facilities Manager.

(c) The Body Corporate does not have to make any payment which includes GST to the Facilities Manager until the Facilities Manager has provided the Body Corporate with a tax invoice.

(d) Despite any contrary provision in this Agreement, any party owed a reimbursement by the other may only calculate the value of the reimbursement net of the input tax credits which the party to be reimbursed is entitled to.

6 FACILITIES MANAGEMENT DUTIES

6.1 The Facilities Manager’s Representative must personally or using properly trained, experienced and skilled contractors or employees perform the following Facilities Management Duties in respect of the Estate to the extent that the duties do not require Specialist Work or Specialist Equipment:

(a) Carry out all of the work specified in the Schedule 1 in a good and workmanlike manner at the minimum time intervals specified in that schedule for that work.

(i) Monitor the observance of the By-Laws of the Body Corporate by the owners and

(ii) the occupiers (including their guests and licensees) of the lots in the Estate, and:

(A) bring the terms and conditions of the By-laws to the attention of any person committing any breach of the By-Laws; and

(B) as soon as practicable report to the Body Corporate Nominee any breach of the By-laws.

(b) As far as possible, the Manager must:

(i) Ensure that the Management Duties are carried out at all times and in a manner that will have the least effect, disturbance and/or nuisance on the use of the Common Property by Residents; and

(ii) Provide reasonable notice and advice to the Body Corporate Nominee(s) regarding any anticipated disturbances so that (where possible) Residents can be promptly notified in advance of such disturbances.

(c) The Manager must, at all times, act honestly, fairly and professionally in its role and in performing the Management Duties.

(d) The Manager must comply with all reasonable directions of the Body Corporate about the administration and management of the Common Property and the performance of the Management Duties.

(e) At the request of the Body Corporate advise the Body Corporate concerning the performance of the Facilities Management Duties of the Facilities Manager and provide other advice which the Body Corporate requests relative to the management and care of the Estate.

(f) Supervise, and as far as the Facility Management Duties permits, assist the gardener engaged by the Body Corporate with regards to its performance of the Gardening Duties. Should the Facilities Manager identify any areas of concern or query, it must report same as soon as practically possible to the Committee.

(g) Keep safe possession of the keys and access control devices delivered to the Facilities Manager to be held on behalf of the Body Corporate and not surrender any of them to any person other than:-

(i) the Body Corporate Nominee; or

(ii) a person otherwise lawfully authorised to have access and then only to the extent necessary to allow that person to access the areas which that person is lawfully authorised to access.

(h) Take reasonable action to ensure that all mechanical and electrical equipment forming part of the Estate is operating properly and being serviced regularly.

(i) In relation to fire protection and firefighting equipment:-

(i) monitor the performance of any contractor engaged by the Body Corporate to carry out checking and maintenance of such equipment and advise the Body Corporate Nominee of any failure by such contractor to perform its obligations; and

(ii) otherwise carry out the statutory duties of a Facilities Manager in relation to such equipment and fire safety procedures.

(j) Take reasonable action to ensure that all drainage in the Estate is clear and functioning.

(k) Account promptly and faithfully to the Body Corporate for all its funds or other property coming into the Facilities Manager’s hands or custody.

(l) Report promptly to the Body Corporate Nominee on all things requiring repair and all matters creating a hazard or danger and take remedial action where practicable.

(m) Supervise the performance of any persons contracted by the Body Corporate for the replacement repair and maintenance of any of the Estate;

(n) Supervise the performance of any persons contracted by the Body Corporate for the gardening and landscaping services for the Estate;

(i) advise the Body Corporate in respect of such contracts; and

(ii) assist with the obtaining of quotes from specialised trade persons and the letting of contracts if so required by the Body Corporate.

(o) At all times ascertain and be aware of the general condition of the Estate so that at all times the Facilities Manager is able to keep the Body Corporate Nominee informed in this respect.

(p) If requested by the Committee, attend fortnightly Estate Land inspections and walk arounds with representatives of the Committee and the Gardener.

(q) Take reasonable action to keep order in and on the Estate land and take such precautions as are reasonably required to safeguard the whole of the Estate against unlawful entry or damage. In order to comply with the Facilities Manager’s obligations, the Facilities Manager is only obligated to take such action as is reasonable and lawful using equipment installed by the Body Corporate.

(r) Be available at the Estate or be contactable by phone during the following Onsite Hours:

(i) Monday to Friday 7:00 am to 1:30 pm, or other such hours as agreed by the Committee and the Facilities Manager; and

(ii) In an emergency outside Onsite Hours the Facilities Manager will be contactable to provide reasonable assistance to the Body Corporate including the engagement of emergency contractors at the direction and expense of the Body Corporate.

(s) With the aid of documents supplied by the Body Corporate the Facilities Manager must become informed as to the layout, construction, location, character and operation of the mechanical and electrical equipment installed in the Estate and must advise the Body Corporate generally on its condition and must recommend to the Body Corporate Nominee any changes or modifications which should be made for the proper and effective operation of such equipment.

(t) Ensure that all lighting operates efficiently and that time switches are reset when necessary.

(u) Effect Minor Repairs and maintenance to the Common Property where neither Specialist Equipment or Specialist Work is required and where the repairs and maintenance are not covered by other agreements with the Body Corporate.

(v) Clean and maintain any other part of the Common Property that a reasonable Body Corporate would clean and maintain, except for the areas of exclusive use which Owners or Occupiers of Lots must maintain under an exclusive use by-law.

(w) The Facilities Manager shall not be obliged to perform a duty where the by-laws provide for that duty to be performed by an Owner or Occupier.

(x) Regularly remove rubbish from receptacles (if any) located on the Common Property to a central location point suitable for external collection and maintain such receptacles in a clean and sanitary condition.

(y) maintain all rubbish bins throughout the Common Property including however not limited to:

(i) Appropriately disposing of rubbish;

(ii) Replacing bin liners

(iii) Ensuring clean and hygienic; and

(iv) Ensuring that on each day of the Onsite Hours (including Saturdays and public holidays) rubbish bins are cleared, bin liners are replaced and left in a clean and tidy condition.

(z) Maintain dog bag dispensers throughout the Common Property.

(aa) The Facilities Manager must:

(i) undertake cleaning of the buggy tunnel, including however not limited to, sweeping debris, removing rubbish and generally keeping clean and tidy.

(ii) As reasonably required, hose out the buggy tunnel.

(iii) In the event of heavy rain or flooding:

(iv) Close off the buggy tunnel with safety cones to ensure persons safety.

(v) Check pumps are working and ensure pumps are efficiently as possible draining the water.

(bb) Liaise with third parties regarding the use of all Common Property by third parties (for example, wedding photographs or the like) by:

(i) Upon receiving a request from a third party for use of the Common Property provide an application form to the third party and upon receipt of a completed application form submit to the committee for approval;

(ii) Advise the third party of the outcome of the decision by the Committee;

(iii) If approved:

A. If the use is during Onsite Hours arrange for the third party to sign in and out.

B. If the use is outside Onsite Hours arrange for the third party to meet with the security contractor;

C. Advise the security contractor of the use and request the security contractor to monitor the use of the Common Property by the third party

D. Irrespective of whether the use is inside or outside of the Onsite Hours, the Facilities Manager must request the third party to sign and return a completed deed of indemnity (Deed) (prepared at the expense of the Body Corporate). The completed Deed must be supplied to the Body Corporate Manager. If the third party does not sign the Deed then the Facilities Manager must advise the security contractor to prevent the use by the third party.

(cc) The Facilities Manager must give the Body Corporate Manager and the Committee written monthly reports:

(i) To assist in the preparation of monthly, quarterly and annual budgets including an estimate of the following years financial costs. Including however not limited to advice regarding the previous month’s expenditure, and forecasts for the coming months, any unanticipated or upcoming expenditure.

(ii) Any areas of concern or forecasted works requested to the Estate.

(iii) Any persistent breaches of Estate by-laws.

(iv) Any areas of concern with regard to the Gardener and/or the Gardening Duties.

(v) If requested, any recommendations, thoughts or opinion on improving the Estate.

(dd) Attend committee meetings of the Body Corporate for the purpose of reporting to the Body Corporate on and receiving directions in relation to the performance of the Facilities Management Duties, as requested.

6.2 All of the Facilities Management Duties shall be undertaken and carried out by the Facilities Manager at the direction of the Body Corporate and shall not be a delegation of any power of the Body Corporate.

6.3 The Facilities Manager must faithfully carry out all of its duties under this Agreement in a thorough, professional and competent manner.

6.4 The Facilities Manager must be contactable by phone to assist the Body Corporate Nominee and owners of lots in relation to the performance of the Facilities Management Duties.

6.5 To ensure that the delivery of services and all aspects of the Estate is kept to a High Standard, the parties to this Agreement are to confer and provide to the other party any recommendation to change the scope of the Facilities Management Duties and the timing and delivery of the Facilities Management Duties as otherwise as reasonably required by the Body Corporate throughout the term.

6.6 The Facilities Manager must effect and maintain at all times during the Term, at the Facilities Manager’s expense, the following insurances in the Facilities Manager’s Name with insurers and on terms and conditions acceptable to the Body Corporate, acting reasonably and where reasonably required, noting the Body Corporate as a co-insured party:

6.7 Public Liability insurance for the minimum cover of $5 million, or greater amount as the Body Corporate may require and extended to include risks of an insurable nature for which the Facilities Manager is obliged to indemnify the Body Corporate under this Agreement.

6.8 The Facilities Manager must:

(a) At the request of the Committee, produce a copy of any such insurance policy which it is required to effect and maintain pursuant to this Agreement;

(b) Immediately notify the Body Corporate if it becomes aware that any such insurance policy is cancelled for any reason or if an event occurs which may allow for a claim or which may effect either parties’ rights under the insurance policy; and

(c) Not do or permit to be done anything which may in any way interfere with, limit, or reduce the effectiveness of the cover under any such insurance policy.

6.9 The Facilities Manager acknowledges that it is the Facilities Manager’s responsibility to obtain all licences and other approvals required for it to perform its obligations under this Agreement.

6.10 The Facilities Manager must not seek, take, or accept any secret commissions with respect to, or in the course of, the performance of the Facilities Management Duties.

7 EQUIPMENT AND CONSUMABLES

7.1 The Body Corporate must pay for:-

(a) the supply, maintenance, and repair of all tools and equipment; and

(b) the supply of all consumables,

required to allow the Facilities Manager to perform the Facilities Management Duties, provided that such tools and equipment are not permitted to leave the Estate.

7.2 The Facilities Manager may use the Body Corporate’s equipment for the sole and exclusive purpose of carrying out the Facilities Management Duties. The Facilities Manager must take reasonable care with the Body Corporate’s equipment and will be responsible for any damage, repair, or replacement it shall cause to the Body Corporate’s equipment arising from the misuse of the equipment.

7.3 The Facilities Manager must give the Body Corporate Nominee reasonable advance notice of all tools, equipment, and consumables that will be required to allow the Facilities Manager to perform the Facilities Management Duties.

7.4 Using funds provided by the Body Corporate the Facilities Manager must arrange:-

(a) the purchase and delivery of tools, equipment, and consumables; and

(b) the maintenance and repair of tools and equipment,

required to allow the Facilities Manager to perform the Facilities Management Duties, subject to clauses 7.5 and 7.6.

7.5 If the Body Corporate fails to provide such funds as and when required, then the Facilities Manager may expend the Facilities Manager’s funds for any of the purposes for which the Body Corporate is

required to provide funds, up to a maximum of $500 for each individual item of expenditure, provided that the expenditure is within the budget for the Body Corporate.

7.6 For expenditure over $500 the Facilities Manager must provide the Body Corporate with two (2) comparable written quotes and obtain Body Corporate/Committee approval prior to incurring the expenditure. The Facilities Manager shall ensure that the Body Corporate Manager has approved that the expenditure is within the budgets for the Body Corporate.

7.7 The Body Corporate must reimburse the Facilities Manager for any monies the Facilities Manager spends of its own money as permitted under this clause, within fourteen (14) days of the production by the Facilities Manager to the Body Corporate of written evidence of the expenditure, including, however not limited to, a compliant tax invoice.

8 ASSIGNMENT OR DEALING

8.1 No Permission to Assign or Deal

(a) The Facilities Manager shall not be entitled to sell, assign, sub-licence, franchise or otherwise deal with its interests in this Agreement (in this clause called “Dealing”).

8.2 Facilities Manager a Company

(a) If the Facilities Manager is a company, any change or proposed change in shareholding, or the working directors of the Facilities Manager which alter the effective control of the Facilities Manager, shall be a Dealing.

8.3 No Premium or Payment to Body Corporate

(a) The Body Corporate shall not be entitled to any premium payment or benefit for any request to consent to any variation of this Agreement except as permitted under the Act.

9 FACILITIES MANAGER’S REPRESENTATIVE

9.1 The Facilities Manager shall appoint a representative or representatives (‘Facilities Manager’s Representative’).

9.2 Where the Facilities Manager is a company (including company trustee), then the Facilities Manager’s Representative will be:

(a) an officer thereof at the commencement of this Agreement; or

(b) any other person that the Committee has approved upon written application.

9.3 In considering approval for a proposed Facilities Manager’s Representative, the Committee must act reasonably, and must consider whether that person is a respectable and responsible person capable of carrying out the duties delegated to that Facilities Manager’s Representative.

9.4 The Facilities Manager must perform all of its duties or obligations under this Agreement through the Facilities Manager’s Representative/s.

9.5 The Facilities Manager’s Representative have all the rights given under this Agreement to the Facilities Manager.

9.6 The Facilities Manager is responsible for any remuneration payable to the Facilities Manager’s Representative/s.

9.7 Despite the rest of this clause, the Facilities Manager is liable and responsible for the performance of all acts deeds and things required under this Agreement.

10 TERMINATION BY THE BODY CORPORATE

10.1 Without limiting the statutory rights of the Body Corporate, this Agreement may be terminated by the Body Corporate by notice in writing to the Facilities Manager in the event that the Facilities Manager:-

(a) Assigns or transfers or attempts to assign or transfer the Facilities Manager interest in this Agreement; or

(b) Fails or neglects to carry out the Facilities Manager's Duties under this Agreement and such failure or neglect continues for a further period of fourteen (14) days after notice in writing has been given to the Facilities Manager specifying the duty or duties which the Facilities Manager has failed or neglected to carry out and requiring the Facilities Manager to perform such duty or duties; or

(c) Engages in misconduct or is grossly negligent in carrying out or failing to carry out the Facilities Manager’s duties and functions as required under this Agreement; or

(d) Is adjudicated bankrupt or liquidated or wound up or, if a company, becomes subject to any form of external administration referred to in the Corporations Law; or

(e) Is convicted or one of its directors is convicted of an indictable offence involving fraud or dishonesty; or

(f) Is convicted, or one of its directors is convicted, on indictment of an assault or an offence involving an assault.

10.2 Despite the Term being less than 1 year, the Body Corporate and Facilities Manager agree that the provisions in the Act and Module regarding the termination of an engagement of a service contractor will apply to this Agreement.

11 TERMINATION BY THE FACILITIES MANAGER

11.1 In the event that:-

(a) The Body Corporate is in default under this Agreement; and

(b) The Facilities Manager has given thirty (30) days’ notice in writing to the body Corporate specifying the default; and

(c) the default has not been remedied within such period of thirty (30) days,

then the Facilities Manager may, by four (4) calendar months’ notice in writing, terminate this Agreement.

12 NOTICES

12.1 Any notice, demand or other document authorized or required to be given or served under this Agreement is sufficiently given or served if given or served:-

(a) by delivering the same personally to the addressee; or

(b) by posting same to the addressee by prepaid ordinary post as a letter addressed to the addressee at the addressee's usual or last known place of abode or if the addressee is in business as a principal, at the addressee's usual known place of business; or

(c) in the case of a corporation by leaving same, or by posting same by prepaid ordinary post, as a letter addressed in either case to the corporation at its registered office or principal place of business in Queensland; or

(d) in accordance with the procedures for service of notices set out in the Property Law Act 1974; or

(e) in accordance with the procedures set out in any legislation governing the Body Corporate; or

(f) in any other manner recognized by law.

12.2 A notice, demand or other document which is posted shall be deemed to have been served, unless the contrary is shown, at the time when by ordinary course of post it would be delivered.

13 DISPUTE RESOLUTION

13.1 The following provisions only apply to a dispute which is not subject to the provisions of the Act. In the event of any dispute arising between the Facilities Manager and the Body Corporate:-

(a) touching upon any matter arising under the terms of this Agreement or incidental hereto; or

(b) relative to the interpretation of any of the provisions of this Agreement;

then it will, unless otherwise provided, be determined and finally settled by a person to be agreed upon between the Parties or failing agreement such person as may be nominated for the purpose by the President for the time being of the Queensland Law Society Incorporated at the request of either party and the person so acting will make his determination as an expert and not as an arbitrator.

13.2 Both Parties are entitled to make written submissions to the expert.

13.3 The expert must give notice of his decision as soon as is reasonably practicable in the circumstances.

13.4 The expert's decision is final and binding upon the Parties and the costs of the expert's determination will be borne by the Parties in such shares as the expert may decide, and failing such decision, equally.

14 BODY CORPORATE NOMINEE

14.1 The Body Corporate Committee must from time to time authorise up to two of its members, or the Body Corporate Manager, to give instructions to and communicate with the Facilities Manager on

behalf of the Body Corporate. The Body Corporate must advise the Facilities Manager in writing details of the person who is for the time being so authorised.

14.2 The Facilities Manager/Facilities Manager’s Representative/s must confer fully and freely with the Body Corporate Nominee relative to the performance of the duties of the Facilities Manager under this Agreement.

15 FACILITIES MANAGER'S LEAVE

15.1 Subject to clause 15.3, the Facilities Manager may appoint in writing an appointee for:

(a) The term specified in the appointee’s appointment, but not exceeding a period or periods in the aggregate of four (4) weeks during the Term; and

(b) Any additional periods approved by the Committee, upon request by the Facilities Manager, for instance in the case of a genuine emergency.

15.2 The Facilities Manager may, for such duration only, perform any of the Facilities Manager's duties or obligations under this Agreement through the appointee, and for the time so specified in the appointment, the appointee shall have all the rights given by this Agreement to the Facilities Manager.

15.3 The Facilities Manager must:

(a) Ensure that the appointee is suitably and adequately qualified and experienced for the role;

(b) Provide reasonable details of the replacement to the Body Corporate at least 14 days prior to the commencement of the proposed leave (except in the case of an emergency);

(c) Obtain the Body Corporate’s consent to the appointment of the appointee for the specified duration.

15.4 The appointee appointment letter must be tabled at a Committee meeting and annexed to the Committee meeting minutes.

15.5 The Facilities Manager shall be responsible for any remuneration payable to the appointee.

15.6 Despite any such appointment the Facilities Manager is liable and responsible for the performance of all acts, deeds and things required under this Agreement.

16 COSTS

16.1 Each party agrees to bear their own costs associated in the negotiation, preparation and execution of this Agreement.

16.2 The Facilities Manager shall be responsible for any stamp duty payable on this Agreement and indemnifies the Body Corporate against any stamp duty assessed on this Agreement.

17 SEVERANCE

17.1 The parties agree that it is not intended:-

(a) to engage the Facilities Manager as a Body Corporate Manager; or

(b) to delegate to the Facilities Manager any of the powers of the Body Corporate, the Body Corporate Committee, or of an executive member of the Body Corporate Committee; or

(c) to have the Facilities Manager perform duties which the Body Corporate has no power to pay the Facilities Manager to perform;

and that it is the parties intention that the Remuneration payable by the Body Corporate to the Facilities Manager under this Agreement is payable for the performance of duties which do not constitute such an engagement, and do not involve such delegation, and are not duties which the Body Corporate has no power to pay the Facilities Manager to perform.

17.2 If any person, court, or tribunal, having jurisdiction in the matter finds that any provision of this Agreement:-

(a) constitutes an engagement of the Facilities Manager as a Body Corporate Manager; or

(b) includes the delegation of any power referred to in clause 17.1(b); or

(c) involves the performance of a duty which the Body Corporate has no power to pay the Facilities Manager to perform;

then such provision shall be severed or read down to avoid any such engagement, delegation, or lack of power without any reduction in the Remuneration payable by the Body Corporate to the Facilities Manager under this Agreement.

17.3 Otherwise all rights duties or obligations given or imposed by virtue of this Agreement are so given or imposed to the extent that they are lawful. If at any time, any provision of this Agreement is, or becomes illegal, invalid, unenforceable or void in any respect then that provision shall be ignored, read down or severed respectively so far as is possible at the same time preserving the essence of the bargain between the parties and evidenced by this Agreement, so as to uphold the legality and validity and enforceability of the remaining provisions of this Agreement.

18 NEW ENGAGEMENT

18.1 The Parties rights and obligations in this Agreement replace the Parties rights and obligations contained in any previous agreements from and including the Start Date, and any previous agreements are hereby surrendered from the Start Date.

19 TRUST PROVISIONS

19.1 If the Facilities Manager enters into this Agreement as a trustee of any trust then, whether or not the Body Corporate has any notice (actual or constructive) of the trust, the following applies:

(a) The Facilities Manager warrants it has full power under the trust to enter into and perform its obligations under this Agreement;

(b) The obligations and liabilities of the Facilities Manager under this Agreement extend to the fund or any other assets of the Facilities Managers’ trust;

(c) The Facilities Manager shall on written demand or direction of the Body Corporate exercise all rights of indemnity that the Facilities Manager may at any time have against the Facilities Managers’ trust and any beneficiaries or unit holders under the Facilities Manager’s trust or any of the same for the benefit of the Body Corporate;

(d) The Facilities Manager is liable under this Agreement both in its personal capacity and as trustee of the Facilities Manager’s trust;

(e) Within 14 days from written request of the Body Corporate, the Facilities Manager must produce to the Body Corporate a copy (either original stamped or certified copy by an accountant or solicitor) of the trust deed evidencing the trusts’ existence; and

(f) Without the written consent of the Body Corporate being first obtained the Trust will not:

(i) change the Trustee

(ii) change any default beneficiaries;

(iii) change the Settlor/Principal/Appointor;

(iv) if the Trustee is a company, change the Trustee’s directors or shareholders; or

(v) otherwise do anything which changes the effective control of the Trust.

20 INFORMATION

20.1 The Body Corporate must provide any information reasonably required to assist the Facilities Manager to perform the Facilities Management Duties including but not limited to:

(a) Any Work Safe Plan;

(b) The plans, agreements with the City of Gold Coast and the like, including those referred to in clause 50 of Schedule 1.

21 OCCUPATION AUTHORITIY

21.1 In accordance with the Act and the applicable Module, the Body Corporate authorises the Facilities Manager to have the non-exclusive use and occupation of that part of the Common Property identified on the plan attached at Schedule Two, which was previously known as Lot 101 (and has now been converted to Common Property) (‘the Area’) for all purposes necessary to enable the Facilities Manager to carry out the Facilities Management Duties and perform its obligations under this Agreement.

21.2 The Facilities Manager will:

(a) Ensure to keep the Area in a clean and tidy condition;

(b) Ensure that any contractors also leave the Area in a clean and tidy condition;

(c) Allow any contractor engaged by the Body Corporate in maintenance or repair of the Common Property to use the occupation authority Area if necessary for that contractor to perform their services to the Body Corporate;

(d) Allow access to the Area by any caretaker engaged by a subsidiary scheme within the Body Corporate if necessary for that contractor to perform their services to the subsidiary Body Corporate;

(e) Ensure that the Area remains locked between the hours of 6pm and 6am and at reasonable times when no access to the area is required by the Facilities Manager or other persons (including those persons provided for in clauses 21.2(c) and 21.2(d)).

22 BODY CORPORATE WARRANTY

22.1 The Body Corporate warrants that it has complied with all the requirements of the Act with which it must comply with to ensure that engagement of the Facilities Manager as a service contractor in accordance with this Agreement is not void.

23 CONFIDENTIALITY

23.1 Each party acknowledges that the Confidential Information is valuable and undertakes to keep the Confidential Information confidential in accordance with this Agreement.

23.2 The parties may only use the Confidential Information for the purposes of performing the obligations or exercising the rights under this Agreement, for the duration of this Agreement.

23.3 The Facilities Manager must not disclose the Confidential Information to any person except as permitted by this Agreement.

23.4 On the expiration or sooner termination of this Agreement, the Facilities Manager must deliver to the Body Corporate all books, documents, papers and material (and all copies) and any other property of the Body Corporate which may be in the Facilities Manager’s custody or control, together with any copies.

24 GENERAL PROVISIONS

24.1 This Agreement binds each of the parties to the full extent provide in this Agreement even though the signature or execution of this Agreement by any of the parties (other than the party sought to be made liable) is or may become void or voidable.

24.2 Each party to this agreement will do all things and sign, execute and deliver all deeds and other documents as may be legally necessary or reasonably required of it by Notice from another party to carry out and give effect to the terms and intentions of this Agreement and to perfect, protect and preserve the Rights of the other parties to this Agreement.

24.3 Every provision of this Agreement is independent of the others. Any provision which is prohibited or unenforceable in any jurisdiction is to the extent of the prohibition or unenforceability deemed removed without invalidating the remaining provisions.

24.4 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

(a) The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.

(b) A waiver is not effective unless it is in writing.

(c) Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

24.5 If a party consists of more than one person, this Agreement binds them jointly and each of them individually.

24.6 A party that is a trustee is bound both personally and in its capacity as a trustee.

24.7 Reference to statutes includes all statutes amending, consolidating or replacing them.

25 GUARANTEE AND INDEMNITY

25.1 In consideration of the Body Corporate entering into this Agreement the Guarantors hereby agree with the Body Corporate as follows:

(a) the Guarantors guarantee:

(i) the performance by the Facility Manager of its obligations under this Agreement;

(ii) the payment of all loss and damage recoverable by the Body Corporate from the Facility Manager for any reason whatsoever and howsoever arising; and

(iii) the payment of the Body Corporate’s reasonable legal and other expenses of enforcing and/or seeking to enforce the obligations of the Facility Manager and the Guarantor on an indemnity basis.

(b) this guarantee extends to claims by the Body Corporate payable in the terms of this Agreement:

(i) for damages for breach; and

(ii) for the Body Corporate’s reasonable legal and other expenses of seeking to enforce the obligations of the Facility Manager and the Guarantors.

(c) where more than one person executes this Guarantee:

(d) the term Guarantor in this clause refers to each of the Guarantors and to all of them;

(e) their obligations as Guarantors are joint and several;

(f) the Body Corporate may enforce this Guarantee against all or any of them;

(g) any notice or demand may be served on all of them by serving any one of them;

(h) this Guarantee remains binding on the other Guarantors even if:-

(i) any Guarantor fails to execute this Agreement or enter into this Agreement;

(ii) this Guarantee is not binding on any Guarantor; or

(iii) the Body Corporate shall release any Guarantor from liability under this Guarantee;

25.2 This guarantee is not discharged and the Body Corporate’s rights against the Guarantors are not affected by any of the following:

(a) the granting of any extension of time by the Body Corporate to the Facility Manager or to the Guarantors;

(b) the Body Corporate’s failure to enforce covenants under this Agreement against the Facility Manager;

(c) the alteration or variation of any provision of this Agreement between the

(d) Body Corporate and the Facility Manager without the Guarantor’s consent;

(e) the making of any composition with or waiver of any breach or default by the Facility Manager;

(f) the death, bankruptcy or winding up of the Facility Manager or any of the Guarantors; and

(g) the disclaimer of this Agreement following the Facility Manager’s insolvency.

25.3 In respect of any payment made by or on behalf of the Facility Manager under this Agreement that is void or is voided for any reason, the Guarantors shall remain liable under the Guarantee as if the payment had not been made.

25.4 The Body Corporate is entitled to require the Guarantors pay to the Body Corporate any outstanding money or other amount properly payable by the Facility Manager under this Agreement, to compensate the Body Corporate for any loss or damage without the Body Corporate having made any claim or instituted any proceedings against the Facility Manager in respect of such monies.

25.5 As a separate and independent obligation and for the consideration referred to the Guarantors hereby agree to indemnify the Body Corporate from all claims suffered or incurred by the Body Corporate by reason of the Facility Manager’s default in observing or performing the Facility Manager’s obligations under this Agreement and the preceding provisions of this Guarantee will apply to this indemnity.

25.6 The obligations of the Guarantor will not merge or be deemed to merge in any judgment obtained by the Body Corporate against the Facility Manager.

25.7 If any term of this Agreement is not enforceable against the Facility Manager as principal (whether by reason of any legal limitation, disability or incapacity or otherwise) the Guarantor will be responsible under this Guarantee as though the Guarantor was solely or principally liable as the Facility Manager under this Agreement.

25.8 The Guarantors waive (in favour of the Body Corporate) any right to or interest in the estate or assets of the Facility Manager and any other person's estate or assets so far as necessary to give effect to anything contained in this Guarantee.

25.9 The obligations of the Facility Manager the performance of which are hereby guaranteed, include any obligations arising during any extension or renewal of this Agreement for as long as the Facility Manager remains the Facility Manager.

SCHEDULE 1 – FACILITIES MANAGEMENT DUTIES

DUTIES TO BE PERFORMED DAILY DURING ONSITE HOURS OR AS OTHERWISE DEEMED NECESSARY FOR HEALTH AND SAFETY AND GENERAL HYGIENE REASONS IN RELATION TO THE COMMON PROPERTY AND BODY CORPORATE ASSETS

No. Area Specific Tasks

Access Roads and Entrances

1. Check all areas, pick up and dispose of any rubbish.

Keep all Common Property roads and visitor car parks free from rubbish, litter, leaf debris, etc. Check when performing other duties.

2.

Supervise and liaise with security services contractor, record and report any incidents to the Committee for further action.

Liaise with security contractor. Check the security log, record any reported incidents considered necessary for reporting to the Committee and/or Police for further action.

3. Supervise, monitor and assist the Body Corporate (or any engaged third parties) with regulating the use of car parking bays within the Estate.

Liaise with the Committee or car parking monitoring contractor. Report any parking violations and assist the Body Corporate and/or its contractor with the regulation of the Common Property parking bays.

Maintenance, Repairs And Services

4. Visually check pump stations are not alarming, observe for any overflows on a daily basis.

Duty relates to three (3) sewer pumping stations. Check alarms and strobe lights, etc. Arrange service from contractor if required at the direction and expense of the Body Corporate.

Rubbish disposal

5. Check Common Property refuse receptacles daily (including on weekends and public holidays), empty and replace bin liners.

Keep bins in a clean and sanitary condition. Empty bins in located throughout the Common Property (walkways, boardwalks, parklands, pathways, etc.). Transfer any rubbish to a central location point for external collection. Remove and replace bin liners. Bins are not be overflowing at any time.

The Facilities Manager will be responsible for removing all rubbish and debris from Body Corporate 80L, 120L, 240L and other bins located on Common Property in accordance with Waste Bin and Dispenser Schedule found at Schedule 4 to this Agreement.

DUTIES TO BE PERFORMED WEEKLY DURING ONSITE HOURS OR AS OTHERWISE DEEMED NECESSARY FOR HEALTH AND HYGINE REAONS IN RELATION TO THE COMMON PROPERTY AND BODY CORPORATE ASSETS

6. Be available to liaise with Committee Nominee and attend to relative Common Property issues.

Liaise personally or by phone/email with the nominated Committee Nominee or Body

Corporate Manager as required or requested during normal business hours.

7. Clean fountains Clean all 3 fountains as located in the Piazza area, on Islands and outside Porto Bellagio.

8.

Arrange all materials and supplies necessary to carry out the Facilities Managers Duties to generally maintain the Common Property.

Applies to purchases within the Facilities Manager’s spending limit. Seek approval from the Committee and ensure funds are available from the Body Corporate Manager prior to sourcing materials or supplies that exceed the spending limit or would incur additional costs in obtaining such materials or supplies.

9.

Blower Vac/Sweep/Hose (when lawful) and clean all access boardwalks, stairs and walkways.

Duty applies to all external access pathways/walkways servicing ingress/egress to (and between) buildings, units, lots, waterways and other Common Property.

10.

Monitor the correct operation of the irrigation system pumps and equipment, arrange specialist repairs.

Check pumps, filters, timers, etc. are operating correctly with no noises, leaks, broken pipes, faults, lights, etc. Arrange specialist contractors when required. Duty applies to the Irrigation Pump Station situate adjacent to the Irrigation Dam.

Ensure compliance with Irrigation Maintenance Schedule found in Schedule 4.

Common Property Lighting and Electrical Switchboards

11. Inspect and maintain accessible lighting on driveways/roadways.

Carry out the maintenance and cleaning of common area lights that are accessible without the need for special access equipment. Replace any blown bulbs. Arrange any specialist repairs at the direction and expense of the Body Corporate. Carry out general de-cobwebbing.

12.

Inspect and confirm the operation of all public area lighting.

Carry out the maintenance and cleaning of common area lights that are accessible without the need for special access equipment. Replace any blown bulbs. Arrange any specialist repairs at the direction and expense of the Body Corporate. Perform lighting audit fortnightly.

Maintenance, Repairs And Services

13. Carry out Minor Repairs and maintenance to Common Property

Maintenance work that does not require Specialist Equipment or Specialist Work.

14. Liaise with Owners/Occupiers relating to Common Property repairs and services within units.

Liaise with Owners, Occupiers and service providers to gain access for the provision of repairs and services affecting Common Property within the units

15. Provide access and liaise with contractors/tradesmen when on-site for Common Property repair work.

Ensure all contractors are provided a "Safe Work Plan" (provided one is prepared in accordance with clause 87). Obtain copies of contractor's licences, registrations, insurance certificates, etc. Use best endeavours to ensure contractors abide by the current WH & S Regulations.

Maintain a register of tradespeople/contractors and include insurance details and expiry dates for same.

Ponds And Water Features

16. Test, adjust and record chemical levels.

Check regularly the salt levels in the wetlands and irrigation dam (Salt Lake is fed from the Nerang River and is tidal GCCC monitors the river). Duty performed on average three (3) times weekly.

Workplace Health And Safety

17. Require all contractors that provide services to the Body Corporate to sign ‘In’ and ‘Out’ when entering and prior to leaving the site.

Maintain a visitor/contractor sign in register to be signed upon arrival and departure. Obtain copies of all new contractors insurance policies, licenses, and any registrations. Maintain an electronic register and include insurance details and expiry date of same.

DUTIES TO BE PERFORMED MONTHLY DURING ONSITE HOURS OR AS DEEMED NECESSARY IN RELATION TO THE COMMON PROPERTY AND BODY CORPORATE ASSETS


18. Check and clean Common Property roadways/driveways and visitor car park oil and grease.

Clean any fresh oil leaks as soon as possible when noticed or reported to prevent permanent staining or spreading by vehicle or pedestrian traffic.

19. Cobblestone paved areas, concrete pathways and kerbs

Check for loose and/or lifting or damage to surfaces.

20.

Check and keep clean all roadway drains and gutters.

Ensure grates are in sound condition and firmly in place so as not to create a hazard or damage to vehicle or pedestrian traffic. Keep kerbside drains clear of rubbish, debris, litter, etc. so as to not restrict water flow. Inspect after periods of heavy rainfall.

Management Administration Services

21. Maintain the Body Corporate Website

Maintain website content so that it contains current and up to date information. Upload information as requested or approved by the Body Corporate.

22.

Report any updated information to the Body Corporate Manager for the register of Body Corporate assets and record of maintenance activities.

Provide any updated information obtained or provided to the Facilities Manager to the Body Corporate Manager (including photo’s, information, location and history of work) regarding Body Corporate assets and maintenance activities. As directed, issue work orders for repairs and maintenance activities performed on all assets.

23. Safe & secure storage of equipment, materials and consumables.

Maintain an accurate record of equipment, materials and consumables located within the Common Property.

24.

Source quotations that are requested by the Committee for repairs, specialist maintenance or any specialist consultant reports.

Source tenderers and contractors, meet and discuss job and quote requirements, provide job specifications as agreed by the Committee to ensure consistency and accuracy of quotes, make suggestions on suitable contractor, communicate with the Committee, notify successful tenderer and at the direction and expense of the Body Corporate arrange for work to be done.

25.

Report promptly on all things requiring repair and anything creating a hazard or danger.

Take necessary remedial action or cause remedial action to be taken where practicable regarding matters creating or potentially creating a hazard or danger. Report such matters promptly in writing to the Committee.

26. Read utility meters at required intervals to determine individual consumption.

Read meters (gas / water / electricity / sewerage, etc.) at required intervals to determine the consumption as per Committee policy. Duty relates to 4 water meters located at Emerald Island Drive and The Boulevard entries and the large lot known as "Seachange" and advise the Body Corporate Manager of the ability to recover funds.

27. Check and verify body corporate invoices.

Check and verify invoices/accounts (stamp & sign). Forward originals to Body Corporate, care of the Body Corporate Manager, so that the invoices/accounts can be tabled, and the two appointed/nominated Committee members can review and formally approve. Upon the two-members approving and signing, the Body Corporate Manager will have approval for payment. Maintain a copy on file on-site.

28. Maintain a log of any security issues. Record all matters that may be considered important or essential for recording and

reporting to the Committee for further action.

29. Prepare and submit invoices for Body Corporate expenses.

Provide original invoices as proof of purchase of supplies for use in Common Property areas.

General Areas

30. Maintain stormwater drainage.

Check all stormwater drains and ensure they are clear from rubbish, debris and litter, etc. Check covers/grills or similar are secure and water flow is not restricted. Duty applies to all stormwater drains not located in or on the roadways (pathways, lawn and garden areas, etc.). Inspect after periods of heavy rainfall.

Common Areas Lighting And Electrical Switchboards

31.

Respond to power outages in individual units or common areas, reset circuit breakers.

Check reason for power outages (if easily identifiable) and reset circuit breakers. Arrange any specialist repairs at the direction and expense of the Body Corporate.

32.

Arrange and supervise the maintenance and repairs of inaccessible lighting by a suitably qualified tradesperson at the direction and expense of the Body Corporate.

Applies to lighting that exceeds a fall height of two meters and/or requiring specialist equipment for access (e.g. bridge lighting/over water installations, etc.).

Maintenance, Repairs and Services

33. Arrange and supervise any urgent minor repairs not covered by a contract.

Identify and arrange at the direction and expense of the Body Corporate any repairs or maintenance requiring attention not being a Minor Repair and not covered by a contract and does not require the services of a skilled/qualified tradesperson.

34.

Maintain all Body Corporate provided equipment and tools in good repair and condition.

Maintain in safe and good working order all equipment including but not limited to the mower, edger, blower/vac, handyman tools, etc. needed to carry out the Facilities Management Duties.

Ponds and Water Features

35. Clean and maintain filters, ensure pumps are operating correctly.

Duty applies to the pump intake/filter servicing the irrigation dam from the wetlands.

Rubbish Disposal

36. Arrange a skip bin for the disposal of garden rubbish/green waste.

Maintain skip bin(s) or area available for green waste (trimmings/pruning’s/lawn clippings, etc.) from the Body Corporate and

any Subsidiary Scheme. Keep free of household rubbish/goods. Arrange with the contractor for pick up and/or mulching when bin(s) or waste area is full.

37. Lot 101 – Compound

Secure and maintain Lot 101 compound free of loose rubbish debris and weeds. Manage green waste ensuring it is collected and stored in the designated area.

38. Dog Bag Dispenser Units

The Facilities Manager will be responsible for maintaining the dog bag dispenser and dog bags located on Common Property in accordance with Waste Bin and Dog Bag Dispenser schedule.

Security and emergency services

39.

Maintain a register of master keys or keys for switch rooms, sub-stations, pump rooms and all other common property areas.

Keep safe possession of the master keys. Do NOT surrender possession of such keys to any unauthorised person.

40.

Be available for after-hours emergencies and callouts.

Be available to liaise with Police, Ambulance, Fire Services or Security Services regarding any emergencies.

Workplace Health and Safety

41. Conduct a site induction for all maintenance contractors

Including obtaining proof of insurance policies, licences, any Safe Work Plans, any contractor electrical compliance (test & tag). Induction applies to contractors entering site for the first time. Induction to be repeated annually with all tradespersons/contractors. Maintain up to date register of all such documentation

42.

Report any identified hazards to the Committee for further instructions, take remedial action where necessary.

Take remedial action immediately including isolating the hazard/area. Includes but not limited to; faulty light fittings, heavy inaccessible tree branches, seed pods, faulty plant & equipment or similar. Arrange and supervise the rectification of the hazard as instructed by the Body Corporate. Keep records of reported hazards.

DUTIES TO BE PERFORMED QUARTERLY DURING ONSITE HOURS OR AS DEEMED NECESSARY IN RELATION TO THE COMMON PROPERTY AND BODY CORPORATE ASSETS


43. Arrange and supervise the repairs of potholes and damage to roads.

Inspect all Common Property roads. Check for any developing cracks, protrusions, damage by tree roots, potholes, etc. Arrange for any repairs/maintenance at the direction and expense of the Body Corporate.

44. Inspect and maintain all road signage and line markings.

At the direction and expense of the Body Corporate repair or arrange for replacement of any damaged signage, arrange repainting of line markings on roads and visitor car parks when required. Clean and de-cobweb signs.

Management Administrative Services

45. Attend Committee meetings, extraordinary meetings and annual general.

Prepare a report for each meeting, forward report at least 7 days prior to meeting to enable Committee members sufficient time to review report prior to the meeting.

46.

Assist the Body Corporate in liaising with the Council in relation to Body Corporate Areas.

If provided by the Body Corporate possess good understanding of the agreement between the Body Corporate & GCCC. Duty relates to but are not limited to Public Land Maintenance (refer to Deed of Variation dated 25 Feb 2005).

General Areas

47. Check and maintain fences and retaining walls.

Remove any graffiti and keep in a clean and tidy condition. Arrange at the direction and expense of the Body Corporate any major repairs. Duty applies to numerous Common Property fences and retaining walls situated throughout the Body Corporate.

48. Sweep, clean and tidy store/plant and equipment rooms.

De-web lights and equipment, keep in a clean and tidy condition.

Infrastructure Administrative Services

49. Maintain a register of the Estate’s plans and specifications.

Based on information provided by the Body Corporate, make any “as built” plans available to contractors/service personnel upon request when on-site for repairs or maintenance. Maintain based on information provided a master register to record any changes, additions or relocations to any Common Property infrastructure such as electricals, plumbing works or irrigation, and attach relevant plans.

Common Area Lighting and Electrical Switchboards

50.

Inspect and maintain accessible lighting in storage areas, pump and equipment rooms replace any faulty accessible bulbs or tubes.

Carry out the maintenance and cleaning of Common Property lights that are accessible without the need for special access equipment. Replace any blown bulbs. Arrange at the direction and expense of the Body Corporate any specialist repairs.

51.

Inspect Common Property switchboards, power points, light switches and all electrical installations.

Inspect switchboards, power points, light switches, etc. for damage or problems. At

the direction and expense of the Body Corporate arrange repairs as necessary.

52.

Adjust lighting and power timers as may be necessary to meet required lighting times or following power failures.

Includes but not limited to garden irrigation timers and common area lighting to meet seasonal requirements.

53. Inspect and maintain vehicle/pedestrian bridge.

Visually check bridges and arrange at the direction and expense of the Body Corporate any specialist repairs when required. Look for any cracks, rust, concrete spelling, etc. Seek specialist advice at the direction and expense of the Body Corporate regarding structural integrity. Duty relates to two (2) vehicular (servicing the two islands) and two (2) pedestrian bridges (Levante Bridge & smaller bridge near the boat ramp.


54.

Inspect all balustrades, balusters, banisters, handrails, etc. on the Common Property.

Visually inspect for rust, damage, structural integrity or similar issues. Report any damage or faults to the Committee and arrange for any specialist repairs at the direction and expense of the Body Corporate.

55.

Arrange, provide access and monitor Common Property pest control. Record and maintain plans of pest control stations to be provided by the pest control contractor.

Provide access and liaise with pest contractor. Monitor pest activity and arrange at the direction and expense of the Body Corporate for treatment more frequently when required. Check all pest control boxes to ensure they have baits and physically carry out a check on the bait boxes following a service provided by Pest Control company to ensure they have completed the work invoiced for’

56. Check all timber structures and maintain in a safe condition.

Check all jetties, decking, boardwalks, etc. Tighten bolts, check for rotting timber or any hazards. At the direction and expense of the Body Corporate arrange any specialist repairs.

57. Check and maintain traffic calming device installations.

Check speed humps are in good condition and free from damage or wear. Attend to any Minor Repairs. Arrange any further repairs at the direction and expense of the Body Corporate. Duty also includes the numerous bollards installed throughout the Common Property, especially bordering Emmanuel College.

58. Check paved paths and driveways for loose or protruding pavers and re-set.

Bed down loose or protruding pavers (in small quantities only - refer ABMA Code re “Minor Works” definition]. Duty includes all

tiled/concreted/paved areas within the Common Property.


59. Sweep/hose (when lawful)/mop timber structures.

Duty relates to the removal bird droppings. Use suitable cleaning product to clean jetties. Ensure adequate safety signage is in place whilst performing this duty.

60.

Remove all rubbish and floating growth from lakes and associated areas.

Duty relates to removal of items from the three waterways (Salt Lake, irrigation Dam & Wetlands) such as; rubbish' bins, shopping trolleys, yabbie traps or similar discarded items including floating vegetation washed to the shoreline. Duty includes removal of reachable items where Specialist Equipment is not required and where on the shore on Common Property and/or in or around the aerator. Duty does not apply to plant growth, algae or similar or any part of the lake and associated areas that is part of the Gold Coast City Council land.


61.

Maintain a log and notify Workplace Health and Safety QLD of any notifiable accidents or incidents.

Record any notifiable accident or incident. An Incident is notifiable if it arises out of the conduct of a business or undertaking and results in death, serious injury or serious illness of a person or involves a dangerous incident.

62.

Maintain a register of all chemicals and hazardous materials used and stored on-site.

Store chemicals/hazardous materials off the floor on shelving, provide Material Safety Data Sheets (MSDS). Keep MSDS for all chemicals/hazardous materials in the storage facility and a copy on file at reception and for the end of year inspection by the Body Corporate Committee.

DUTIES TO BE PERFORMED SIX MONTHLY DURING ONSITE HOURS OR AS DEEMED NECESSARY IN RELATION TO THE COMMON PROPERTY AND BODY CORPORATE ASSETS


63.

Monitor, provide access and record the testing and maintenance of sewerage pumps.

Provide access to the service contractor and discuss any issues. Liaise/advise the service contractor and the Body Corporate as required. Duty applies to three (3) locations throughout the Body Corporate. Refer ABMA Code Table

11A - Pumps - AS2417.

64.

Monitor, provide access and record the maintenance and testing of fire hydrants including any internal & external boosters.

Ensure contractor signs “in” and “out” and has recorded the service in the logbook. Report to the Committee any notified faults or defects that require further repair or

maintenance. Duty relates to several "upstands" installed throughout the Common Property. Refer ABMA Code - Table 10A - Fire Protection.


65.

Arrange at the direction and expense of the Body Corporate, provide access and supervise for suitably equipped contractors in the cleaning of silt traps or catchment devices.

Duty relates to the nine (9) Gross Pollutant Traps (GPT's) situated throughout the Body Corporate. Suitably qualified and equipped contractor to remove anthropogenic and other debris (including any sediment or similar) from the system.

66.

Arrange at the direction and expense of the Body Corporate, provide access and supervise the high-pressure cleaning of driveways, walkways, entrances and paved areas.

Obtain quotes from independent contractors on behalf of the Body Corporate when required or as instructed by the Body Corporate.


67. Clean mooring posts.

Clean timber posts. Ensure adequate safety signage is in place whilst performing this duty. Duty applies to all waterways. Duty also includes any Minor Repairs to post caps or similar.

Management Administrative Services

68.

Assist the Committee in the preparation of the administrative and sinking fund budgets for the next financial year.

Prepare and provide to the Committee and Body Corporate Manager information to assist with the determination of annual budgets.

69.

Obtain quotations and negotiate maintenance contracts as required or requested by the Committee.

Arrange maintenance contracts at the direction and expense of the Body Corporate. Supervise the performance of any such contracts in force and ensure they are carried out in accordance with their terms. Maintain a schedule of contracts. Make recommendations to the Committee

DUTIES TO BE PERFORMED ANNUALLY DURING ONSITE HOURS OR AS DEEMED NECESSARY IN RELATION TO THE COMMON PROPERTY AND BODY CORPORATE ASSETS


70.

Monitor, provide access and record the testing of Residual Current Devices by a qualified inspector.

Sign contractor “in” and “out” and provide access for the service contractor to complete the services. Report to the Committee any notified faults or defects that require further repair or maintenance (Refer ABMA Code 11.23 Table - Electrical Services).

71. Arrange at the direction and expense of the Body Corporate and supervise the testing of installed water back-flow devices.

Service to be performed by a qualified and registered backflow endorsed plumber. Testing required to comply with Australian

Standard AS-NZS 2845.3 (Refer to ABMA Code 11.23 Table - Hydraulics).

72.

Monitor, provide access and record the inspection of the electrical distribution boards.

Ensure the contractor signs “in” and “out” when attending the complex. Review the performance of the contractor to ensure the contractor complies with performance conditions in their Agreement. Maintain a log recording the date of each test. Refer ABMA Code - Table 11A - Electrical Services & AS3439.

73.

Monitor and record the testing and tagging of Common Property pluggable appliances.

Service to be performed to the Standard; AS/NZS 3760:2010 “In-service inspection and testing of electrical equipment” (Refer ABMA Code 11.23 Table - Electrical Services].

74.

Monitor, provide access and record the maintenance and testing of fire system flow testing.

As per Australian Standards AS 1851 - Section 4. Refer ABMA Code - Table 10A - Fire Protection Services.


75. Arrange at the direction and expense of the Body Corporate and supervise the cleaning and re-oiling/painting of timber decking.

Duty applies to a number of large area timber boardwalks situated throughout the Common Property.

76.

Arrange at the direction and expense of the Body Corporate and supervise the inspection of revetment walls.

Obtain quotes and supervise any repairs and maintenance. Duty applies to numerous retaining walls situated throughout the Common Property (Includes on land and water revetment walls).

77.

Arrange at the direction and expense of the Body Corporate, provide access and monitor the machine scrubbing of common area tiles as required.

Ensure tiled pedestrian areas meet the Australian Standard AS/NZS 4663 resistance slip test following scrubbing.

78. Arrange at the direction and expense of the Body Corporate, provide access and monitor the servicing of the lagoon/lake aerators.

Arrange at the direction and expense of the Body Corporate suitably equipped/qualified contractors to remove, service and re-install aerators. Monitor and arrange any emergency repairs required between annual servicing.

79.

Arrange at the direction and expense of the Body Corporate, provide access and supervise the update of complex signage or line marking as required.

Inspect various signage and line markings throughout the Common Property and advise the Body Corporate Committee if any replacements, changes, repairs, etc are required.


80. Conduct a site induction for all new Committee Members.

Familiarize the Committee Members with their responsibilities under any “Safe Work Plan”.

81.

Engage at the direction and expense of the Body Corporate and accompany a licensed/qualified consultant to review and update the Body Corporate's "Safe Work Plan" when required.

Provide a copy of the new plan to the Body Corporate and instigate any new strategies recommended by the consultant.

SCHEDULE TWO

OCCUPATION AUTHORITY

Occupation Authority Area

THE COMMON SEAL of BODY CORPORATE

FOR EMERALD LAKES COMMUNITY

TITLES SCHEME 31623 is affixed in

accordance with a direction or authorisation

which complies with the regulations governing

the use of the Seal of the Body Corporate and

in the presence of the party or parties in whose

presence the Seal may be affixed under those

regulations

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Signature

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Position

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Signature

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Position

EXECUTED by THE DULY APPOINTED TRUSTEE FOR GRASON TRUST ABN 83224116969 as Facilities Manager

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Authorised signatory

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Print full name of signatory

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EXECUTED by [Name] , as Guarantor

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GARDENING & LANDSCAPING AGREEMENT

THIS AGREEMENT is made the day of 2021 BETWEEN: THE BODY CORPORATE FOR EMERALD LAKES CTS 31623 ABN 44 759 935 197 a

Body Corporate constituted under the Body Corporate and Community Management Act 1997 C/ Peak Body Corporate Management – PO Box 1509, Runaway Bay Qld 4216 ("the Body Corporate")

AND: THE TRUSTEE DULY APPOINTED FOR THE BRYAN WESTON FAMILY TRUST

ACN 60 466 139 974 of [Insert] ("the Gardener") AND: [INSERT] of c/- [Insert] of ("the Guarantor/s")

INTRODUCTION:

A. The Body Corporate was established upon creation of Community Titles Scheme No. 31623, and it is the Principal Body Corporate for the Estate.

B. The Body Corporate has the responsibility to administer the Estate and specifically, the Common Property for the benefit of all Owners.

C. The Body Corporate will appoint the Gardener to assist the Body Corporate maintaining gardens and grounds of the Estate.

D. The purpose of this Agreement is to set out the specific outcomes expected of both parties. Underpinning the Agreement is the importance of communication and expectation of the parties to properly and comprehensively monitor the administration and operation of the Estate. Of the utmost importance is the obligation of the parties, Body Corporate Committee, Body Corporate Manager and Gardener to monitor expenditure and ensure that all expenditure falls within the budget of the Body Corporate and reports are given to the Committee of the Body Corporate on a monthly or quarterly basis.

OPERATIVE PART:

1 TERMS OF APPOINTMENT OF INDEPENDENT SERVICE CONTRACTOR

Appointment

The Gardener is engaged by the Body Corporate for the Term of 363 days, commencing on Start Date and ending on the End Date to carry out the Gardening Duties under this Agreement and Schedules. The Gardener accepts such engagement.

Independent Service Contractor

(a) The Gardener is engaged as an independent contractor of the Body Corporate.

(b) The Gardener and the Body Corporate acknowledge and agree that the Gardener is not an employee of the Body Corporate.

2 GARDENING DUTIES

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(a) Duties Regarding Common Property

(i) The Gardener shall maintain and care for the Common Property gardens and grounds to ensure the Common Property is able to be fully used and enjoyed by the Occupiers and is properly maintained and kept to a High Standard.

(ii) The Gardener shall do all things reasonably necessary and desirable to protect the interest of the Body Corporate in respect of the Common Property and the Gardener shall attend to the following general duties.

(iii) The Gardener shall perform:

A. all of the general duties specified in this clause 2 of this Agreement; and

B. all of the Gardener’s Specific duties specified in Schedules 3 & 4 to this Agreement,

with respect to the Common Property and/or Body Corporate Assets.

(iv) It is specifically acknowledged and agreed that at least three (3) persons skilled in performing the Gardening Duties (which may include the Gardener (if an individual), any Approved Person/s, contractors, employees or other representatives of the Gardener) are required to be present at the Scheme at any one time for the purpose of performing the Gardening Duties between 8.30am and 4.30pm Monday to Friday, except for public holidays, (Onsite Hours) subject to:

A. the duties which must be carried out daily for health and safety and general hygiene reasons, including however not limited to, remove of rubbish from the Common Property waste bins; and

B. the requirement that the Gardener or an Approved Person be contactable in emergencies. In an emergency outside Onsite Hours the Gardener will be contactable to provide reasonable assistance to the Body Corporate including the engagement of emergency contractors at the direction and expense of the Body Corporate.

(v) As far as possible, the Gardener must:

A. Ensure that the Gardening Duties are carried out at all times and in a manner that will have the least effect, disturbance and/or nuisance on the use of the Common Property by Residents; and

B. Provide reasonable notice and advice to the Body Corporate Representative(s) regarding any anticipated disturbances so that (where possible) Residents can be promptly notified in advance of such disturbances.

(vi) The Gardener must, at all times, act honestly, fairly and professionally in its role and in performing the Gardening Duties.

(vii) The Gardener must comply with all reasonable directions of the Body Corporate about the administration and management of the Common Property and the performance of the Gardening Duties.

(b) Gardener’s Specific Duties Schedule (Schedule 3 & 4)

(i) The Gardener acknowledges that the Common Property gardens and landscaping are a feature of the Estate and will require a High Standard of maintenance and care as defined Schedules 3 & 4.

(ii) The Gardener shall strictly comply with the Gardener’s Specific Duties Schedule

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(Schedule Three) and Gardener’s Maintenance Obligations (Schedule Four), the duties contained within the Gardening & Landscaping Agreement, the frequencies of each duty and the recommended manner to maintain the gardens in the high standard required contained therein.

Cleaning and Maintenance

(a) To be completed as reasonably required in accordance with Schedules 3 and 4 with respect to the Common Property:

(b) Maintain the Common Property:

(i) lawns (mowing, improvements, maintenance program and litter collection);

(ii) gardens and shrubs (including surrounding hard surfaces, maintenance program, and litter collection);

(iii) fertilising, weeding, mulching and top dressing;

(c) (note: the Body Corporate will pay for the consumables e.g. fertilizer, weed spray, supply of mulch and top dressing however, it will be the Gardener’s duty to apply same);

(i) All according to the Schedule 3 - Gardener’s Specific Duties Schedule.

(ii) The Gardener shall not be obliged to perform a duty where the by-laws provide for that duty to be performed by an Owner or Occupier.

Knowledge of Estate and Services

(a) The Gardener must within a reasonable time after the beginning of the Term become familiar, and maintain that familiarity, with:

(i) The layout of the Common Property; and

(ii) The location and functioning of the services; and

(iii) The Body Corporate’s third-party contracts.

Arrange Contracts

(a) Arrange and supervise contracts to be entered into by and at the direction and expense of the Body Corporate for all Specialist Work required for services to the Common Property.

(b) Supervise the performance of any contracts entered into by the body corporate for additional landscaping or gardening.

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(c) The Gardener must not arrange agreements with a person or corporation for the provision of consumables or services to the Body Corporate unless the Gardener has obtained prior approval from the Committee.

(d) Arrange all appliances, consumables, materials and supplies necessary to carry out the Gardening Duties and generally maintain the Common Property gardens and grounds to a high standard.

General

(a) The Gardener must carry out such other reasonable and appropriate tasks requested by the Body Corporate relevant to gardening or landscaping of the Common Property.

(b) The Gardener must attend a fortnightly Scheme Land inspection/walk around with representatives of the Committee and facilities manager.

Garden Maintenance

Carry out the specific Gardening Duties outlined in Schedule Three at the intervals noted and considering the specific care instructions by area.

Budget Preparation

(a) The Gardener must give the Body Corporate Manager and Committee reasonable assistance (e.g. updates on expenditure for previous month(s) and/or forecasted expenditure for the coming month(s), any anticipated additional expenditure) in the preparation of monthly, quarterly and annual budgets.

(b) A reasonable time before each annual budget is to be prepared, the Gardener must advise the Committee of the Gardener’s estimate of the costs for the next financial year of the Complex of those areas under the control or supervision of the Gardener.

Records and Reports

(a) The Gardener must keep records of the purchase and use of materials and equipment required for gardening and the landscaping of the Common Property.

(b) The Gardener must produce a monthly report for the Committee going to any and all updates of the Gardening Duties, expenditure, forecasted expenditure, areas of concerns and approvals required.

Staff of Gardener

(a) The Gardening Duties shall be carried out by the Gardener, its delegates or any adequately skilled and qualified staff and/or contractors employed by the Gardener.

(b) The Gardener must keep in its employ for the Estate a properly qualified horticulturalist who comes with at least 5 years’ experience in horticulture. The horticulturalist must be on Scheme Land for a minimum of 2 hours Monday to Friday, either performing the

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Gardening Duties or supervising the performance of the skilled and qualified staff or contractors employed by the Gardener.

Costs and Expense of the Gardener

(a) The Gardener must supply all equipment, machinery and tools required for the Gardener to perform the day-to-day Gardening Duties.

(b) The Body Corporate shall reimburse the Gardener for the costs of the reasonable materials and consumables required to perform the Gardening Duties such as, fuel (however, only so far as to service equipment used to undertake the Gardening Duties), fertiliser, replacement plants, mulch, top dressing, and irrigation equipment. Provided however, the Gardener complies with the requirements of clause 4 regarding same.

Insurance

The Gardener must have public liability insurance in the sum of at least $20 million. The Gardener shall provide a copy of its insurance certificate of currency to the Body Corporate Manager on the 1st of July each year and as may be requested from time to time.

Leave

(a) The Gardener can appoint a suitable replacement to carry out the Gardener’s duties and functions under this Agreement for a total period of four (4) weeks per annum. However, the Gardener must:

(i) Ensure that the replacement is suitably and adequately qualified and experienced for the role;

(ii) Must provide the Body Corporate with reasonable notice of any expected or anticipated leave (apart from emergency leave);

(iii) Provide reasonable details of the replacement to the Body Corporate;

(iv) Obtain the Body Corporate’s prior consent in writing for any replacement. The Body Corporate must act reasonably in considering its consent; and

(v) The Gardener’s letter satisfying 2.13 and providing the details of the replacement must (apart from emergency leave) be tabled at a Committee meeting and annexed to the Committee meeting minutes.

3 REMUNERATION

Term

The Gardener shall be paid remuneration of $270,000 per annum plus GST from the Start Date until the End Date, or proportionally for any period less than one year.

Remuneration Paid Monthly

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The Body Corporate shall pay the Remuneration to the Gardener by equal monthly instalments in arrears with the first payment to be made one (1) calendar month after the Start Date and on the same date of each month following.

GST

(a) An expression used or defined in the GST Act that appears in this clause shall have the same meaning as applies in the GST Act.

(b) If a GST applies to any supply made under or in connection with this Agreement, the supplier may, in addition to any amount expressed as payable elsewhere in this Agreement, recover from the recipient an additional amount of account of GST, such additional amount to be calculated by multiplying the amount payable by the recipient for the supply by the prevailing GST rate.

(c) Any additional amount on account of GST recoverable from the recipient under this clause must be calculated without any deduction or set-off of any other amount and is payable by the recipient upon demand by the supplier.

(d) The supplier agrees to give the recipient a valid tax invoice in exchange for the payment. Despite any contrary provision in this Agreement, any party owed a re-imbursement by the other may only calculate the value of the re-imbursement net of the input tax credits which the party to be reimbursed is entitled to.

4 EXPENDITURE OF GARDENER

Limit

The Gardener can spend a maximum of $500, for each individual item of expenditure, of monies of the Body Corporate in carrying out the Gardening Duties, provided the expenditure is within the budget for the Body Corporate.

Body Corporate to Reimburse Gardener

(a) The Body Corporate shall reimburse the Gardener for any monies the Gardener spends of its own money under Clause 4.1 within fourteen (14) days of the Gardener providing to the Body Corporate written evidence of the expenditure, including however, not limited to, a compliant tax invoice.

(b) However, for expenditure over $500 the Gardener must provide the Body Corporate with two (2) comparable written quotes and obtain Body Corporate/Committee approval prior to incurring the expenditure. The Gardener shall ensure that the Body Corporate Manager has approved that the expenditure is within the budgets for the Body Corporate.

5 INSTRUCTIONS FROM BODY CORPORATE TO GARDENER

Nominee of Body Corporate

The Body Corporate shall nominate two (2) persons to communicate with the Gardener and the Gardener shall be notified in writing of the appointment of the Nominees.

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Approved Person of the Gardener

The Gardener shall appoint one or more Approved Persons. An Approved Person for this Agreement is:

(a) In the case of the Gardener being a company (including company trustee), an officer thereof at the commencement of this Agreement;

(b) Any other person that the Gardener has approved upon the written application of the Gardener.

(c) The Committee must approve a person to be an Approved Person if that person is a respectable and responsible person capable of carrying out the duties delegated to that Approved Person by the Gardener and the Committee is required to act reasonably in considering a proposed Approved Person.

Instructions to Gardener

(a) The Gardener/Approved Person shall confer with the Nominee concerning the Gardening Duties.

(b) The Nominee of the Body Corporate and Approved Person of the Gardener will make their best efforts to have meet weekly during Onsite Hours, or as mutually agreed, to discuss matters arising out of this Agreement and matters arising in relation to work performed and due to be performed.

Committee and General Meetings

(a) The Gardener/Approved Person shall attend any general meeting and any scheduled Committee meeting of the Body Corporate if requested to do so by the Committee.

Gardening Duties

Despite any other provision of this Agreement the Gardening Duties:

(a) Are limited to those that do not reasonably require the use of Specialist Equipment or the services of a skilled or specialist tradesperson or contractor whose services, if and when required, will be arranged by the Gardener at the direction and expense of the Body Corporate. Without limitation, these would include duties to be carried from a fall height of two metres or more;

(b) relate only to the Common Property and Body Corporate Assets of the Estate and not to any Lots, any exclusive use areas or to any external surfaces (or things on such surfaces) of subsidiary community titles schemes within the Estate.

6 TRANSFER

No Permission to Assign or Deal

The Gardener shall not be entitled to sell, transfer, assign, sub-licence, franchise or otherwise deal with its interests in this Agreement (in this clause

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called "Dealing").

Gardener a Company

If the Gardener is a company, any change or proposed change in shareholding, or the working directors of the Gardener which alter the effective control of the Gardener, shall be a Dealing.

No Premium or Payment to Body Corporate

The Body Corporate shall not be entitled to any premium payment or benefit for any request to consent to any variation of this Agreement except as allowed under the Act.

7 TERMINATION BY BODY CORPORATE

This Agreement may be terminated by the Body Corporate:

(a) In the absolute discretion of the Body Corporate, it may elect to issue the Gardener with a written notice placing the Gardener on notice of its breaches under this Agreement and providing the Gardener no less than 14 days to remediate the breach(es). Should the Gardener fail to remediate the breaches within the time period provided the Body Corporate may proceed with termination.

(b) if the Gardener:

(i) is convicted of an indictable offence involving fraud or dishonesty;

(ii) is guilty of gross misconduct or gross negligence in the performance of the Gardening Duties contained within this Agreement and Schedules;

(iii) (if a company) becomes subject to any form of external administration referred to in the Corporations Law or (if being an individual) is bankrupt or makes any assignment for the benefit of creditors or enters into any composition or scheme of arrangement; or

(iv) ceases to carry on the business which the Gardener is authorised to conduct under this Agreement.

(c) Despite the Term being less than 1 year, the Body Corporate and Gardener agree that the provisions in the Act and Module regarding the termination of an engagement of a service contractor will apply to this agreement.

8 TERMINATION BY GARDENER

This Agreement may be terminated by the Gardener at any time upon the Gardener giving to the Body Corporate, four (4) calendar months’ notice in writing of the termination.

9 STAMP DUTY

The Gardener shall be responsible for any stamp duty payable on this Agreement and indemnifies the Body Corporate against any stamp duty assessed on this Agreement.

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10 INTERPRETATION

(d) Particular words used in this Agreement are defined in Schedule One.

(e) Rules of Interpretation of this Agreement are contained in Schedule Two.

(f) Where conflict arises between this Agreement and the Act or Module, the Act and/or Module will take precedent.

11 SEVERANCE

If at any time any provision of this Agreement is or becomes illegal, invalid, unenforceable or void in any respect, that provision shall be ignored, read down or severed restrictively so as to uphold the legality, validity and enforceability of the remaining provisions of this Agreement.

12 COSTS

Each party agrees to bear their own costs associated in the negotiation, preparation and execution of this Agreement.

13 NEW ENGAGEMENT

The Parties rights and obligations in this Agreement replace the Parties rights and obligations contained in any previous agreements from and including the Start Date, and any previous agreements are hereby surrendered from the Start Date.

14 TRUST PROVISIONS

If the Gardener enters into this Agreement as a trustee of any trust then, whether or not the Body Corporate has any notice (actual or constructive) of the trust, the following applies:

(a) The Gardener warrants it has full power under the trust to enter into and perform its obligations under this Agreement;

(b) The obligations and liabilities of the Gardener under this Agreement extend to the fund or any other assets of the Gardener’s trust;

(c) The Gardener shall on written demand or direction of the Body Corporate exercise all rights of indemnity that the Gardener may at any time have against the Gardener’s trust and any beneficiaries or unit holders under the Gardener’s trust or any of the same for the benefit of the Body Corporate;

(d) The Gardener is liable under this Agreement both in its personal capacity and as trustee of the Gardener’s trust;

(e) Within 14 days from written request of the Body Corporate, the Gardener must produce to the Body Corporate a copy (either original stamped or certified copy by an accountant or solicitor) of the trust deed evidencing the trust’s existence; and

(f) without the written consent of the Body Corporate being first obtained, the Trust will not:

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(i) change the Trustee;

(ii) change any default beneficiaries;

(iii) change the Settlor / Principal / Appointor;

(iv) if the Trustee is a company, change the Trustee's directors or shareholders; or

(v) otherwise do anything which changes the effective control of the Trust.

15 NOTICES

(a) A notice, approval, consent or other communication in connection with this Agreement must be writing.

(b) All notices and other communications between the Parties may be sent by prepaid express or registered post or by hand delivery to the party at the address shown in this Agreement or by facsimile transmission to the facsimile number of the party, by email to the relevant party’s email address or to such other address or person as either party may specify by notice in writing to the other.

(c) All such notices or communications will be deemed to have been duly given or made:

(i) if by mail, five (5) business days after being deposited in the mail with postage prepaid;

(ii) if delivered by hand, at the time of delivery;

(iii) if sent by facsimile transmission, when the sender's transmission record indicates that the same was received without error; and

(iv) if sent by email, notices will be treated as given when the email has been received by the receiver’s server.

16 GOVERNING LAW AND JURISDICTION

This Agreement is governed by the law in force in Queensland and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland courts of appeal from them.

17 WAIVER AND VARIATION

A provision of or a right created under this Agreement may not be:

(a) waived except in writing executed by the party granting the waiver; or

(b) varied except in writing signed by the Parties.

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18 FURTHER ASSURANCES

Each Party agrees, at its own expense, on the request of another party, to do everything reasonably necessary to give effect to this Agreement and the transaction contemplated by it, including but not limited to, the execution of documents.

19 DISPUTES

(a) If any dispute arises between the Gardener and the Body Corporate touching upon any matter arising under the terms of this Agreement or incidental to this Agreement, it will, unless otherwise provided, be determined and finally settled by a person to be agreed upon between the Parties or failing agreement such person as may be nominated for the purpose by the President for the time being of the Queensland Law Society Incorporated at the request of either party and the person so acting will make his determination as an expert and not as an arbitrator.

(b) Both Parties are entitled to make written submissions to the expert.

(c) The expert must give notice of his decision as soon as is reasonably practicable in the circumstances.

(d) The expert's decision is final and binding upon the Parties and the costs of the expert's determination will be borne by the Parties in such shares as the expert may decide, and failing such decision, equally.

20 INFORMATION

The Body Corporate must provide any information reasonably required to assist the Gardener to perform the Gardening Duties including but not limited to:

(a) Any Work Safe Plan;

(b) All plans, agreements and other documentation referred to in Schedule 3; and

(c) A plan of the areas identified in Table 1 of Schedule 4.

21 OCCUPATION AUTHORITY

In accordance with the Act and the applicable Module, the Body Corporate authorises the Gardener to have the non-exclusive use and occupation of that part of the Common Property identified on the plan attached at Schedule Five, being the waste management facility previously known as lot 101 on SP 199703 (Lot 101) (which has been converted to Common Property) for all purposes necessary to enable the Gardener to carry out the Gardening Duties and perform its obligations under this Agreement. The Gardener will:

(a) Ensure to keep the Lot 101 area in a clean and tidy condition;

(b) Ensure that any contractors also leave the Lot 101 area in a clean and tidy condition;

(c) Allow access to Lot 101 by any contractor engaged by the Body Corporate in maintenance

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or repair of the Common Property to use the occupation authority if necessary for that contractor to perform their services to the Body Corporate; and

(d) Allow access to Lot 101 by any Gardener engaged by a subsidiary scheme within the Body Corporate if necessary for that contractor to perform their services to the subsidiary Body Corporate.

22 GUARANTEE AND INDEMNITY

In consideration of the Body Corporate entering into this Agreement the Guarantors hereby agree with the Body Corporate as follows:

(a) the Guarantors guarantee:

(i) the performance by the Gardener of its obligations under this Agreement;

(ii) the payment of all loss and damage recoverable by the Body Corporate from the Gardener for any reason whatsoever and howsoever arising; and

(iii) the payment of the Body Corporate’s reasonable legal and other expenses of enforcing and/or seeking to enforce the obligations of the Gardener and the Guarantor on an indemnity basis.

(b) this guarantee extends to claims by the Body Corporate payable:

(i) for damages for breach; and

(ii) for the Body Corporate’s reasonable legal and other expenses of seeking to enforce the obligations of the Gardener and the Guarantors.

(c) where more than one person executes this Guarantee:

(i) the term Guarantor in this clause refers to each of the Guarantors and to all of them;

(ii) their obligations as Guarantors are joint and several;

(iii) the Body Corporate may enforce this Guarantee against all or any of them;

(iv) any notice or demand may be served on all of them by serving any one of them;

(v) this Guarantee remains binding on the other Guarantors even if:-

A. any Guarantor fails to execute this Agreement or enter into this Agreement;

B. this Guarantee is not binding on any Guarantor; or

C. the Body Corporate shall release any Guarantor from liability under this Guarantee;

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This guarantee is not discharged and the Body Corporate’s rights against the Guarantors are not affected by any of the following:

(a) the granting of any extension of time by the Body Corporate to the Gardener or to the Guarantors;

(b) the Body Corporate’s failure to enforce covenants under the Agreement against the Gardener;

(c) the alteration or variation of any provision of the Agreement between the

(d) Body Corporate and the Gardener without the Guarantor’s consent;

(e) the making of any composition with or waiver of any breach or default by the Gardener;

(f) the death, bankruptcy or winding up of the Gardener or any of the Guarantors; and

(g) the disclaimer of the Agreement following the Gardener’s insolvency.

In respect of any payment made by or on behalf of the Gardener under the Agreement that is void or is voided for any reason, the Guarantors shall remain liable under the Guarantee as if the payment had not been made.

The Body Corporate is entitled to require the Guarantors pay to the Body Corporate any outstanding money or other amount properly payable by the Gardener under the Agreement, to compensate the Body Corporate for any loss or damage without the Body Corporate having made any claim or instituted any proceedings against the Gardener in respect of such monies.

As a separate and independent obligation and for the consideration referred to the Guarantors hereby agree to indemnify the Body Corporate from all claims suffered or incurred by the Body Corporate by reason of the Gardener’s default in observing or performing the Gardener’s obligations under this Agreement and the preceding provisions of this Guarantee will apply to this indemnity.

The obligations of the Guarantor will not merge or be deemed to merge in any judgment obtained by the Body Corporate against the Gardener.

If any term of this Agreement is not enforceable against the Gardener as principal (whether by reason of any legal limitation, disability or incapacity or otherwise) the Guarantor will be responsible under this Guarantee as though the Guarantor was solely or principally liable as the Gardener under the Agreement.

The Guarantors waive (in favour of the Body Corporate) any right to or interest in the estate or assets of the Gardener and any other person's estate or assets so far as necessary to give effect to anything contained in this Guarantee.

The obligations of the Gardener the performance of which are hereby guaranteed, include any

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obligations arising during any extension or renewal of the Agreement for as long as the Gardener remains the Gardener.

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SCHEDULE ONE

DEFINITIONS

Definitions as follows: "Act" means the Body Corporate and Community Management Act

Qld 1997 or any act that replaces this Act. “Agreement” means this Gardening & Landscaping Agreement, and all its

referenced inclusions and attachments . “Approved Person” means the nominee referred to in clause 5.2. "Associates" means:

(a) if the Gardener is a company, its directors, substantial shareholders and its management staff; or

(b) if the Gardener is a partnership, the partners and

management staff of the partnership. "Body Corporate Manager" means the body corporate manager engaged by the Body

Corporate as defined in section 14 of the Act. "By-Laws" means the by-laws contained in the Community Management

Statement of the Body Corporate (retained by the duly appointed Body Corporate Manager).

“Committee” for a body corporate, means a committee established under

the Body Corporate and Community Management Act Qld 1997 for the Body Corporate from time to time.

"Common Property" means common property for the Body Corporate (as defined

in the Act) from time to time including all chattels, fixtures, plant and equipment located on Common Property but excludes any exclusive use areas or common property of any subsidiary scheme

"Community Titles Scheme" means that community titles scheme referred to in the

introduction. “Complex” means all of the land and improvements within the Scheme

excepting the lots within the Scheme. “Dealing” means a sale, sublease, mortgage, assignment, sub-licence,

encumbrance, franchise. "Estate" means the community title residential development known as

"Emerald Lakes". "End Date" means ________________________________.

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"Gardening Duties" means the duties of the Gardener set out in this Agreement and specifically those detailed in clause 2 and Schedules 3 and 4.

“Gardener’s Specific Duties” means Schedules 3 and 4 to this Agreement. “GST” has the meaning it has in the GST Act. “GST Act” means the A New Tax System (Goods and Services Tax) Act

1999 (cth) and includes any related Acts or regulations. “High Standard” means a standard which meets, if not exceeds, the

expectations and standards of a skilled, experienced and knowledgeable Gardener and Landscaper.

"Lot" or "Lots" means any Lot or Lots detailed in the Community Titles

Scheme as the context requires. “Minor Repairs” applies to tasks that are usually performed by un-skilled

persons using basic hand tools and can be completed in less than one hour. Minor repairs are repairs where the outcomes of poor workmanship or materials will not place people in or around the building at any significant risk, or for repairs that provide a stop gap before a more permanent repair can be made. Minor repairs should not apply to aesthetic works such as plastering, painting (other than minor touch up painting), tiling, paving, etc., except where required to rectify graffiti.

“Module” means the Body Corporate and Community Management

(Standard Module) Regulations Qld 2008 or any regulation which replaces it.

"Nominee" means the person(s) nominated by the Body

Corporate under clause 5.1. "Occupier" has the same meaning as in the Act. "Owner" means the registered owner of a Lot including a mortgagee in

possession. “Parties” means the Body Corporate and the Gardener.

"Remuneration" means the remuneration to be paid by the Body Corporate to

the Gardener under clause 3. “Scheme” means the community titles scheme ‘Emerald Lakes’ CTS

31623 “Specialist Equipment” means equipment that:

(a) cannot be operated lawfully by a person unless that person has a licence, permission or authority from

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the government or industry body;

(b) equipment that is infrequently used in the Caretaking Duties and would require frequent use or substantial experience to operate efficiently and in a good and workmanlike manner; or

(c) equipment that because of its size or expense and

infrequent use would not normally be owned by the Body Corporate or a Gardener of a strata titled resort building.

“Specialist Work” means work that:

(a) requires Specialist Equipment for it to be carried out in an efficient and good and workmanlike manner;

(b) requires qualification, licence, permission or

authority from a government body for it to be performed legally;

(c) cannot be performed efficiently or safely without

Specialist Equipment; or

(d) requires knowledge of a specialist nature that would not normally be known to a reasonably experienced Gardener of a strata title resort building (e.g. fixing an engine where the knowledge of a mechanic would be required).

Including but not limited to the following:

(i) painting or cleaning the outside of the various buildings within the Estate where it requires trestles or a cherry picker; and

(ii) providing advice about body corporate law.

“Start Date” means ________________________________. “Term” means the term of this Agreement from the Start Date to and

including the End Date.

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SCHEDULE TWO

RULES FOR INTERPRETATION

Unless the contrary intention appears in this Agreement, the following applies to this Agreement: 1. Queensland law applies.

2. Words denoting the singular include the plural and vice versa.

3. Reference to a Schedule are references to the Schedules appearing in this Agreement.

4. Reference to this Agreement includes reference to this Agreement together with any

amendments or variations of this Agreement.

5. References to any party in this Agreement, includes that party's successors, executors, administrators or assigns.

6. Words denoting any gender shall include all genders.

7. A covenant by more than one (1) person is given by them jointly and severally.

8. References to any legislation includes legislation which amends or replaces that legislation.

9. Reference to a person includes a corporation or trustee.

10. Text printed in italics provides an example or explanation of the intended operation of the

relevant clause and may be used to assist in the resolution of a dispute about the interpretation of that clause.

11. This Agreement is the entire agreement of the Parties.

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SCHEDULE THREE

GARDENER’S SPECIFIC DUTIES SCHEDULE

DUTIES TO BE PERFORMED WEEKLY DURING ONSITE HOURS OR AS OTHERWISE DEEMED NECESSARY FOR HEALTH AND HYGIENE REASONSIN RELATION TO THE COMMON PROPERTY AND BODY CORPORATE ASSETS

1. Be available to liaise with Committee Nominee and attend to relative Common Property issues.

Liaise personally or by phone/email with the nominated Committee Nominee, Body Corporate Manager or Building Manager as required or requested during normal business hours.

2. Check all lawn and garden areas, pick up litter. Pick up dropped palm fronds, branches, blown in rubbish, cigarette butts, etc., from lawns and gardens.

3. Arrange all materials and supplies necessary to carry out the Gardening Duties to generally maintain the Common Property Gardens & Grounds.

Applies to purchases within the Gardener's spending limit. Seek approval from the Committee and ensure funds are available from the Body Corporate Manager prior to sourcing materials or supplies that exceed the spending limit or would incur additional costs in obtaining such materials or supplies.

4. Blower/Vac leaves and debris from Boulevard. Blower/vac and clean leaves and debris from the Boulevard and the adjoining the commercial sector. Duty performed an average of twice weekly on a Tuesday and Friday

5. Hand water potted plants and garden areas not covered by the sprinkler system.

Check soil in pots and water as required.

6. Blower/Vac, sweep and clean all garden paths and access ways.

Garden paths/walkways/access ways to be cleared on a weekly basis.

7. Prune, trim and shape all hedges and shrubs, clean up and dispose of trimmings.

Instigate a weekly pruning program to ensure all hedges, plants and shrubs are pruned on a rotational basis at least once per month, clean up and dispose of trimmings. Duty does not apply to pruning of hedges, plants, shrubs, vines, etc. that exceed a fall height of 2 meters or require Specialist Equipment for access.

8. Spray and control weeds in gardens and along fence lines, paved areas, etc.

Includes gardens along adjoining footpaths. Do not apply sprays during windy conditions or prior to impending rain.

DUTIES TO BE PERFORMED FORTNIGHTLY DURING ONSITE HOURS OR AS DEEMED NECESSARY IN RELATION TO THE COMMON PROPERTY AND BODY CORPORATE ASSETS

9. Mow all associated lawn areas including Common Property lawns and lawns on adjoining footpaths/median strips, nature strip, verge areas to property letterbox during spring/summer warmer months.

Lawns to be mowed and in accordance with Turf Maintenance Schedule attached at Schedule 4, to ensure the maximum height of the grass will not exceed 80 mm. Minimum height of 30 mm. Duty performed fortnightly October to April inclusive (average of 29 mows).

10. Trimming of all edges of paths, drives, gardens, shrubs, lights & fixtures during spring/summer warmer months.

All gardens and hard surfaces are to be maintained in accordance with Garden and Hard Surfaces Schedule attached at Schedule 4. All edges to be trimmed on a fortnightly basis to correspond with the seasonal mowing

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frequency. Duty performed weekly October to April inclusive (average of 29 mows/trims).

11. Check and maintain the lawn irrigation system. Check sprinkler heads are clear of any damage, build-up of ants, etc. Reduce watering times during winter months to at least half of summer months. Report any faults to the Building Manager.

DUTIES TO BE PERFORMED MONTHLY

12. Prune and trim all exotics and flowering plants after flowering and dispose of clippings.

Includes but not limited to Gingers, Heliconia’s, Spider Lilies, Strelitzlas, Hibiscus, etc.

13. Replace and replant damaged plants, shrubs or trees. Remove and replace any diseased or dead plants. Ensure replacement plants are within the same theme and size as the current garden style. Relocate poorly positioned plants and shrubs to new or more suitable growing areas. Refer to Schedule 4 and the Body Corporate ‘Landscape plan' (if any).

14. Spray all plants, shrubs and trees for pests and diseases. Check Cycads and spray with Confidor or similar recommended product when blue moth appears. Seek professional advice at direction and expense of Body Corporate for treatment of Hibiscus and other susceptible plants and comply with Schedule 4

15. Check test and maintain the operation of the garden irrigation system.

Check sprinkler heads are clear of any build-up of ants, etc. Adjust timers to ensure progressive coverage. Reduce watering times during winter months to at least half of summer months. Carry out Minor Repairs to system.Arrange and supervise any major or specialist repairs at the direction and expense of the Committee. Ensure compliance with Irrigation Maintenance Schedule found in Schedule 4.

16. Trim and shape topiary trees. Trim topiary trees that do not require access via a ladder. Clean up and dispose of trimmings.

DUTIES TO BE PERFORMED MONTHLY DURING ONSITE HOURS OR AS DEEMED NECESSARY IN RELATION TO THE COMMON PROPERTY AND BODY CORPORATE ASSETS

17. Spray roads for weeds and other growth.

Keep roads clear of weeds from cracks and encroaching growth. Limit the spraying to road surfaces and edges so as to maintain growth as close as possible to the road edges to prevent erosion.

18. Assist the Body Corporate in liaising with the Council in relation to Body Corporate Areas.

If provided by the Body Corporate possess good understanding of the agreement between the Body Corporate & GCCC. Duty relates to but are not limited to Public Land Maintenance (refer to Deed of Variation dated 25 Feb 2005).

19. Spray all Common Property lawns regularly for the eradication of Bindi, clover and other weed growths.

Treat weeds in winter months before they germinate and drop seeds back into the soil. Repeat applications frequently in order to kill weeds that have germinated after previous spraying.

20. Carry out major pruning and thinning out of shrubs, plants and gardens.

Instigate a major pruning program to ensure all shrubs, plants and gardens are pruned and

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thinned out to prevent overcrowding on a rotational basis at least once annually. Duty applies to areas that can be accessed without the use of ladders, platforms, etc. as per WH&S Regulations.

21. Clean all common area gardens to remove build-up of leaf litter.

Clear leaf litter from garden areas particularly from the base of plants and shrubs b ensure better water penetration.

22. Keep service pit covers clear of leaves and vegetation. Ensure service pit covers (Sewer, Telstra, Energex, etc.) are kept clear so as to be easily identified by contractors. Duty includes keeping vegetation back/away from any upright structures for services such as; MSSB, Control Panels, etc.

23. Spray around edges of lakes to treat weed growth.

Treatment of unwanted growth applies to all three (3) waterways (Salt Lake, irrigation Dam & Wetlands). Use chemicals as per the ‘Landscape Plan' and/or as approved by the Body Corporate.

DUTIES TO BE PERFORMED SIX MONTHLY DURING ONSITE HOURS OR AS DEEMED NECESSARY IN RELATION TO THE COMMON PROPERTY AND BODY CORPORATE ASSETS

24. Fertilize all Common Property lawns.

Fertilize in Spring and Autumn. In between applications, lightly feed regularly (6 – 8 week intervals) with a fertilizer high in Nitrogen and Potassium.

25. Hand fertilize all gardens, plants, shrubs and palms.

Fertilize in Spring and Autumn. Avoid the use of organic fertilizers with residual odours (e.g.: Dynamic Lifter). At the direction and expense of the Body Corporate seek advice from Horticulturist on specific fertilizers for different plant species. Duty includes any potted plants within the Common Property.

26. Top dress and level Common Property lawns.

Top dress areas of lawn requiring levelling to keep turf even for mowing.

27. Replace areas of damaged turf when required.

Ensure replacement turf is of the same species and quality as the turf in adjoining areas.

28. Obtain quotations and negotiate maintenance contracts as required or requested by the Committee.

Arrange landscaping contracts (For example, tree lopping) at the direction and expense of the Body Corporate. Supervise the performance of any such contracts in force to assist to ensure they are carried out in accordance with their terms. Maintain a schedule of contracts. Make recommendations to the Committee

DUTIES TO BE PERFORMED ANNUALLY DURING ONSITE HOURS OR AS DEEMED NECESSARY IN RELATION TO THE COMMON PROPERTY AND BODY CORPORATE ASSETS

29. Arrange at the direction and expense of the Body Corporate and supervise contractors for the pruning and cutting back of large trees.

Applies to trees and palms that exceed a fall height/working height of two metres as per Workplace Health and Safety Regulations.

30. Possess good knowledge of the Landscape Plan as approved by the Body Corporate.

If provided by the Body Corporate possess a sound understanding required of the Landscape Plan as provided/approved by the Body

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Corporate. Duty includes any obligations that the Gold Coast City Council requires to be met.

31. Arrange at the direction and expense of the Body Corporate and supervise an arborist to inspect the Common Property.

Duty applies to all trees, plants, shrubs, etc. Report to Committee any findings/recommendations from arborist.

32. Re-mulch garden beds as required. Instigate a mulching program to ensure all gardens are mulched on a rotational basis at least once per year. Mulch to be provided at the cost of the Body Corporate.

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SCHEDULE FOUR

GARDENER’S MAINTENANCE OBLIGATIONS

The following tables show the locations and the maintenance schedule of service required for each location, property or residence.

Table 1: Areas identified for Turf Maintenance

Location

Description of Property to be Maintained

North Island • All turf located from the water’s edge to property boundary

fence or retaining wall.

• All turf located from water’s edge to roadside curb whether in an easement, open area, or walkway.

• All turf located on the verge 2 meters in from the roadside kerb.

• All turf located on the roundabouts and median strips

South Island • All turf located from the water’s edge to property boundary


• All turf located from water’s edge to roadside curb whether in an easement, open area, or walkway.

• All turf located on the verge 2 meters in from the roadside kerb.


Quay North • All turf located from Lakeside Dr roundabout to the Boulevard/Panorama Dr Roundabout.

• All turf located from the water’s edge to property boundary


• All turf located from water’s edge to roadside kerb whether in an easement, open area, or walkway.

• All turf located between road and letter boxes.


Quay South • All turf located from roadside curb starting Lot 101 to Boulevard/Grande Av Roundabout.

• All turf located from the water’s edge to property boundary


• All turf located from water’s edge to roadside kerb whether in an easement, open area, or walkway.



Village Residential • All turf located from the roadside edge to property boundary fence or retaining wall.

• All turf located whether in an easement, open area, on an elevated surface or walkway.



Hillside • All turf located from the roadside kerb to property boundary fence or retaining wall.

• All turf located from the roadside kerb whether in an easement, open

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area, or walkway.

• All turf located between school boundary fence and roadside kerb

Hilltop • All turf located from the roadside kerb to property boundary fence or retaining wall.

• All turf located from the roadside kerb whether in an easement, open area, or walkway.

• All turf located between school boundary fence and roadside kerb

Town Centre • All turf located from the roadside kerb to property boundary fence or retaining wall.

• All turf located from the roadside kerb whether in an easement, open area, or walkway.

• All turf located whether in an easement, open area, on an elevated surface or walkway.

1. Turf Maintenance – Mowing and Edging

(a) The Gardener shall be responsible for the mowing of all turf areas, including around trees, bollards, fences and infrastructure and for the brush cutting / whipper snipping around these objects.

(b) The Gardener shall take care whilst brush cutting or whipper snipping, not to scour or damage around tree trunks.

2. Turf Maintenance

The Gardener shall:

(a) Collect and dispose of litter and debris from Common Property turf surfaces both artificial and natural prior to the commencement of any other works.

(b) Mow turf to a uniform height across the turf surface.

(c) Catch and dispose of all turf clippings and clean up leaves, mulch and litter on adjacent hard surfaces, paths, garden beds and at the completion of mowing each area.

(d) Maintain turf edging abutting hard surfaces, paths, fences, trees, buildings, garden beds and other infrastructure.

(e) Edge all turf edging that abuts hard surfaces; paths, kerbing, fences, buildings, bollards, light poles, irrigation cabinets, electrical cabinets, hydrants, and trees using a mechanical edger or whipper snipper.

(f) Collect and dispose of all litter, dead vegetation, pruning, turf clippings and weeds to designated collection areas at the time of service.

(g) The accumulation of leaves shall be removed from the site at the time of each mowing.

(h) Divots replaced with sand and lawn seed.

(i) All surface valve boxes, service hatches and the like are to be kept clear of debris at the

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time of mowing.

3. Turf Maintenance – Road Verges

The Gardener must keep the road verges maintained to the standard set out in this scope of services. This will include:

(a) the collection of leaves; and

(b) mowing as required.

(c) Turf and any vegetation covering or interfering with sprinkler head operations shall be trimmed using approved edging tool so that vegetation does not interfere with the irrigation spray pattern and spread.

The Gardener must not park their vehicle on road verges, median strips and avoid having vehicles travelling over the turf surfaces unless required for maintenance.

4. Turf Maintenance – Litter Collection

The Gardener shall be responsible for the collection of all litter from areas in the scope of works. These areas include all turf surfaces, non-irrigated areas, bush land areas, garden bed areas, hard paved areas including paths and roads.

5. Turf Maintenance - Weed Control

(a) The Gardener will be responsible for effective weed control to turf areas. The Gardener will hold any required spraying licenses using pesticides and herbicide that conforms to current health and safety legislation and industry best practice guidelines.

6. Landscaping Maintenance Garden and Hard Surface – Body Corporate Common Property Around Residential Areas

The following tables show the locations and the maintenance service required for each location.

Common Property – Residential Activity

Blow down all walkways

Spray and control weeds in garden beds

Control weeds in pathways, carparks

Clean up any heavy leaf drop areas

Trim shrubs as required

Check all paths are debris free

Ground rubbish pick ups

Hand water non irrigated pots

7. Landscaping Maintenance Garden and Hard Surface –Common Property Commercial Areas Common Property - Village Commercial

Activity

Sweep or use blower to blow down walkways and café paved areas.

Spray and control weeds in garden beds

Control weeds in pathways, carparks

Clean up any heavy leaf drop and debris along the Boulevard between Panorama and Emerald Island Drive

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Trim shrubs as required

Check all paths are debris free

Ground rubbish pick ups

8. Landscaping Maintenance - Garden Beds

(a) The Gardener shall maintain healthy, clean and attractive garden beds free of weeds, overgrowth and litter.

(b) Landscaping Maintenance - Garden Beds – Pruning

(c) Pruning is to be carried out using secateurs, shears and hand saws. Motorised hedge trimmers may be used in situations of dense planting or hedges.

(d) All native shrubs will be pruned according to their natural spread and nature.

(e) All ground covers and shrubs in garden beds are to be kept trimmed to allow the sprinklers to operate efficiently.

(f) Any shrub or plant removal must be authorised by the Body Corporate’s Nominee prior to the removal.

9. Landscaping Maintenance - Garden Beds – Mulching

(a) Garden bed areas which have bare soil areas not covered by a complete ground cover shall be mulched with free natural tree mulch as supplied by the Body Corporate.

(b) The Gardener is to maintain a steady supply of quality tree mulch within the Body Corporate Compound once a year during summer period to a depth of 50mm – 70mm.

10. Landscaping Maintenance - Garden Beds – Weed Control

(a) The Gardener will be responsible for effective weed control to garden beds and hard surfaces. The Gardener will hold any required spraying licenses and use herbicide that conforms to current health and safety legislation and industry best practice guidelines.

(b) Hard Surfaces - all paths, paved areas and hard landscape areas shall be treated where necessary with an approved method of removal at least every quarter, October, January, April and July. The Body Corporate prefers a thermal steam treatment of weeds on paths and paved areas.

(c) Gardens should be maintained weed free at all times.

11. Landscaping Maintenance - Garden Beds – Pests and Diseases

(a) All plants will be maintained to promote healthy sustained growth.

(b) If a plant is deemed infested beyond recovery, the Gardener shall remove it after

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agreement with the Body Corporate Nominee provided that Specialist Equipment is not required for the removal.

(c) The Gardener is required to identify and report any infestation prior to monthly inspections. The application of herbicide, pesticide or insecticide is the responsibility of the Gardener.

12. Landscaping Maintenance – Lot 101 Compound

(a) The Gardener must solely use Lot 101 as a storage compound.

(b) Conditions of usage of the Body Corporate compound are:

• The area must be maintained in a clean and tidy state.

• The Gardener will maintain all hard and soft surfaces within the Body Corporate

compound weed free, clear loose debris, rubbish and waste.

• The Gardener upon exiting the compound at the end of the day is responsible for the

securing of the compound gates and locks.

• The Gardener is required to monitor the use of Lot 101 by other contractors to ensure

it is maintained in a clean and tidy state.

Scope of Works Landscaping Maintenance – Waste Bins and Dog Bag Dispensers

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SCHEDULE FIVE

OCCUPATION AUTHORITY AREA

Occupation Authority Area

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Executed as an Agreement

SIGNED, SEALED AND DELIVERED by the BODY CORPORATE FOR EMERALD LAKES CTS 31623 in accordance with the provisions of the Body Corporate and Community Management Act 1997

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EXECUTED BY THE TRUSTEE DULY APPOINTED FOR THE BRYAN WESTON FAMILY TRUST ACN 60 466 139 974 as Gardener



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EXECUTED BY [INSERT] as Guarantor

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meeting notice of extraordinary general

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