The Hills Shire Council
Golden Mile 1888 Pty Ltd + Pennant Hills Estate 88 Pty Ltd + Rain bowforce Pty Ltd (ACN 463 711 963)
Rainbowforce Pty Ltd Golden Mile 1888 Pty Ltd
Pennant Hills Estates 88 Pty Ltd
(collectively, the Owners)
BE\' 40-rtME ,,-
17 pR 2015
eHtLLS 6gE COU NCIL
77 Castlereagh Street Sydney NSW 2000 Australia
T +61 29931 4999 F +61 2 9931 4888 Ref AQW/DTS:35601465
1 Definitions and interpretation 1
2. Planning agreement under the Act 4
3. Application of this document 4
4. Operation of this document 4
5. Dedication Lands 4
6. Dedication 5
7. Monetary Contributions b
8. Works in Kind
9. Defects Liability Period 10
10. Security Works 10
11. Application of s94 and s94A of be Act 11
12. Modifications 11
13. Easements Covenants and Restrictions on Title 11 14. Joint and individual liability and benefits 11
15. No fetter 12
16. Representations and warranties 12
17. Severability 12
18. Termination 12
19. Private Certifiers 13
20. Breach Notice and Rectification 13
21. Dispute resolution 13
22. Registration of document on Title 15
23. General provisions 15
Schedule 1— Dedication Lands 20
-Proposed Development 24
The Hills Shire Council (Council).
Golden Mile 1888 Pty Ltd + Pennant Hills Estate 88 Pty Ltd + Rainbowlorce Pty Ltd (ACN 463 711 963) (Developer).
Rainbowforce Pty Ltd Golden Mile 1888 Pty Ltd Pennant Hills Estates 88 Pty Ltd (collectively, the Owners)
Council is the consent authority pursuant to the Act for the Proposed Development.
The Developer is the owner of several of the lots comprising the Land, as outlined in Schedule 3.
The Developer has entered into agreements with the Owners of the remainder of the lots comprising the Land to carry out the Proposed Development on the Land.
On 19 May 2009 Council resolved to adopt the Draft LEP and issue a Section 69 report to the Director General for gazettal subject to a number of conditions, The Draft LEP has not yet been gazetted.
The Developer has lodged the Development Application in anticipation of gazettal of the Draft LEP, to carry out the Proposed Development on the Land.
The Developer has offered to enter into a planning agreement on the terms set out below to make Development Contributions if Development Consent to carry out the Proposed Development are granted.
1. Definitions and interpretation
In this document unless the context otherwise requires:
Act means the Environmental Planning and Assess'nentAct 1979:
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Additional Monetary Contribution means the amount determined by multiplying the Monetary Contribution Rates by the number of dwellings in addition to the Anticipated Dwellings approved for the Proposed Development:
Anticipated Dwellings means the dwellings anticipated in the Proposed Development as set out in Schedule 4;
Bank Guarantee means a written guarantee without a time limit acceptable to Council issued by an Australian Bank:
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South Wales:
Construction Certificate has the same meaning as in the Act:
Dedication means the creation or transfer of an estate in fee simple free of any mortgage, lease, easement or other encumbrance of a lot registered under the Real Property Act:
Dedication Lands means the parts of the Land specifically identified for dedication to Council in Schedule 1 as illustrated on the site plan (Figure 1);
Development Application means the development application for the Proposed Development, being DA 1103/2011/JP;
Development Consent means the approval of the Development Applications;
Development Contributions means a monetary contribution, the dedication of land free of cost or the provision of a material public benefit including the Works, or the combination of any of them;
Draft LEP means the Draft Local Environmental Plan which provides for the following rezon in g:
land bounded by Jenkins Road, Post Office Street, Boundary Road and the Railway reservation from Residential 2(al) to Residential 2(a4); and
land bounded by Moseley Skeet, Jenkins Road, Post Office Street and Donald Street from Residential 2(a2) to Residential 2(al).
Encumbrance includes any mortgage or charge. lease, (or other right of occupancy) or profit a prendre:
GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Seivices Tax) Act (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to. the GST Act:
Land comprises the whole of the land described in Schedule 3;
Monetary Contribution means the amount specified in Schedule 2 as the Monetary Contribution;
Occupation Certificate has the same meaning as in the Act;
Owners means the owners of the parcels of the Land as set out in Schedule 3. and includes any successor in title;
Party means a party to this document, including their successors and assigns; Price Index means:
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All Groups Consumer Price Index applicable to Sydney published by the Australian Bureau of Statistics: or
if this price index is discontinued or abolished or if the items or weighting of the items whose prices are considered varied so as to change the basis of the price index then such price index as Council may select that. as nearly as practicable, serves the same purpose.
Proposed Development means the development the Land for mixed use retail and residential, generally as described in Schedule 4;
Subsisting Breach means any breach by the Developer in the performance of its
obligations under this document which is not rectified within 14 days of written notice of the breach being provided to the Developer by Council:
Works means the works in kind identified in Schedule 2.
In this document unless the context, otherwise requires:
clause and subclause headings are for reference purposes only;
the singular includes the plural and vice versa;
words denoting any gender include all genders;
reference to a person includes any other entity recognised by law and vice versa;
where a word or phrase is defined its other grammatical forms have a corresponding meaning;
any reference to a party to this document includes its successors and permitted assigns:
any reference to a provision of an Act or Regulation is a reference to that provision as at the date of this document;
any reference to any agreement or document includes that agreement or document as amended at any time;
the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it,
the expression at any time includes reference to past. present and future time and the performance of any action from time to time:
an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;
(I) an agreement. representation or warranty on the part of two or more persons is for the benefit of them jointly and severally:
reference to an exhibit, annexure, attachment or schedule is a reference to the corresponding exhibit. annexure, attachment or schedule in this document;
reference to a provision described, prefaced or qualified by the name, heading or caption of a clause, subclause, paragraph. schedule, item, annexure, exhibit or attachment in this document means a cross reference to that clause, subclause, paragraph, schedule, item, annexure. exhibit or attachment:
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when a thing is required to be done or money required to be paid under this document on a day which is not a Business Day. the thing must be done and the money paid on the immediately following Business Day; and
reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.
2. Planning agreement under the Act
The Parties agree that this document is a planning agreement within the meaning of section 93F of the Act
3. Application of this document
This document is made in respect of the Proposed Developments and applies to the Land.
4. Operation of this document --
4.1 Until the planning agreement operates. this document constitutes the Developers offer to enter into the planning agreement if consent under s80 of the Act is granted to a
Development Application forming part of the Proposed Developments.
4.2 The planning agreement operates only if:
the Draft LEP is gazetted;
the carrying out of the Proposed Development is subject to a condition imposed under s931 (3) of the Act requiring this planning agreement to be entered into, and
(C) the planning agreement is entered into as required by the condition in accordance with clause 250(1) of the Regulation.
4.3 This document provides for Development Contributions to be made with respect to each Development Consent that comprises the Proposed Development as outlined in
5. Dedication Lands
5.1 Developer and Owners must not deal with property
The Developer and Owners must not during the term of this document sell, transfer.
mortgage, charge or grant a lease or license or any other right of occupancy to any person over the Dedication Land without first obtaining Council's consent in writing. Council may, at its absolute discretion, refuse its consent or give consent with conditions.
The Developer and Owners agree that their obligations under this document create an equitable interest in the Dedication Lands held by Council and they agree to grant to Council a right to register a caveat on title over the Dedication Lands.
The Developers must provide Council with survey plans for the Dedication Lands.
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On the date of execution of this document, the Developer win give to Council in registrable form caveats over the Dedication Lands endorsed with landowner's consent in the form and on the terms of the caveat attached to this document as Annexure A. The Developers acknowledge and agree that to be in registrable form the caveats must identify the land by a survey plan in accordance with the Real Property Regulation 2008 including Schedule 4.
Council must not unreasonably withhold its consent to the registration of any dealing by a mortgagee that would not have a material adverse effect on Council's interest in the Dedication Lands.
Council will give to the Developer a withdrawal of caveat within 7 days of this document being validly terminated under clause 18.1.
6.1 The Developer and Owners must at their cost Dedicate to Council the Dedication Lands in accordance with the times listed in Schedule 1.
6.2 The Dedication will be effected when:
a plan of subdivision is registered dedicating the Dedication Lands to Council; or Council becomes the registered proprietor of an existing lot being part of the Dedication Lands as a result of the registration of a transfer of land.
6.3 Where an existing lot forming part of the Dedication Lands is to be transferred to Council, (a) the Developer will deliver to Council the following
transfer in registrable form signed by the registered proprietor of the lot;
the Certificate of Title for the lot; and
a discharge of mortgage. surrender of lease or other document to release the lot from any encumbrance.
(b) Council will on receipt of these documents arrange for the following:
stamping of the transfer: and
lodgement of the transfer and other documents at the office of Land and Property Information for registration.
6.4 Council must provide the Developer with a tax invoice for its reasonable expenses incurred in relation to the Dedication of the Dedication Land including its legal costs and
disbursements on an indemnity basis (including any registration fees).
6.5 The Developer will be entitled to the benefit of any special or discounted rates charged to Council by its consultants and legal advisers and will be entitled to seek assessment of any legal costs, as a third party payer under s 350(2) of the Legal Profession Act 2004,
6.6 The Developers must pay to Council the amount invoiced for expenses under sub-clause 4 within 14 days of receipt of the invoice.
6.7 The Developer must pay Council on reasonable notice the stamp duty (if any) on the Dedication of the Dedication Land. The Parties acknowledge that Section 227 Duties Act
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1997 provides generally that duty under that Act is not chargeable on dutiable transactions where Council is liable to pay the duty.
6.8 After the Dedication Land is transferred to Council. Council will use the land for public purposes being the provision of public open space and such other public purposes in the future as Council may consider appropriate.
7. Monetary Contributions
The Developer must pay the Monetary Contribution and any applicable Additional Monetary Contribution (Total Monetary Contribution). Payment of the Total Monetary Contribution may be made by cheque or electronic bank transfer to Councils nominated hank account.
7.2 Additional Dwellings
If the Development Consents approve dwellings in addition to the Anticipated Dwellings then the Developer must also pay the Additional Monetary Contribution.
7.3 Annual Increases
On each anniversary of the date of this document the Total Monetary Contribution
applicable immediately prior to that anniversary will be increased by the same percentage as the annual percentage increase, if any, in the Price Index most recently published prior to the relevant anniversary. The increased Total Monetary Contribution will be the Total Monetary Contribution in the subsequent 12 months.
7.4 Pro rata payment
74.1 The parties acknowledge that the Proposed Development may be undertaken in a number of stages, with the construction of individual buildings authorised by separate Construction Certificate.
7.4.2 The Total Monetary Contribution is to be paid on a pro rata basis prior to the issue of each Construction Certificate for construction of the buildings comprising the Proposed Development.
7.4.3 The proportion of the Total Monetary Contribution payable at each relevant Construction Certificate will be calculated in accordance with the below formula:
b = ya x Where:
a= Total Monetary Contribution
b = proportion of Total Monetary Contribution payable in connection with the Construction Certificate
x = total number of approved dwellings in the Development Consent y = number of dwellings to be constructed under the Construction Certificate
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7.5 Public Purpose
The Total Monetary Contribution is required for the funding of the construction of
improvements to the public domain in the vicinity of the Land (including those specified in Section 93(F)(2) of the Act) as determined by the General Manager of Council from time to time and Council will apply the Total Monetary Contribution for those purposes.
8. Works in Kind
8.1 Provision of works
The Developer must carry out the works in kind identified in Schedule 2 (Works) at its own expense. The estimated value of the Works is provided for information purposes only and the Developer must carry out the Works regardless of the actual costs involved.
8.2 Completion of Works
The Works must be completed to the reasonable satisfaction of Council prior to the issue of the first Strata Certificate for the Land (Completion Date).
8.3 Design of Works
8.3.1 The Parties acknowledge and agree that plans and specifications for the design of the Works will be required having regard to the following:
the policies, procedures and standards reasonably required by Council for the Works:
changes in the Proposed Developments including matters not reasonably capable of identification on or before the date of this document: and matters arising out of the relevant Development Consent.
8.3.2 The Developer must promptly after the date of the relevant Development Consent prepare a detailed description, plans and specifications for the Works (Draft Design) and submit them to Council for approval, such approval not to be unreasonably withheld.
8.3.3 Council must promptly review the Draft Design and provide comments to the Developer. The Developer must promptly amend the Draft Design to take into account the comments made by Council and re-submit the Draft Design. When the Draft Design is satisfactory to Council then Council must (in its capacity as a party to this Deed not as a consent authority) notify the Developer that the Draft Design is acceptable and this will be the Approved Design.
8.4.1 The Developer must, at their cost, obtain all relevant approvals and consents for the Works to be constructed in accordance with the Approved Design whether from the Council or other relevant government agency, including but not limited to any necessary road opening permit or road occupancy certificate from the Roads and Traffic Authority.
8.4.2 Before commencing the Works, the Developer must give Council copies of all approvals and consents for the Works.
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8.5 Construction Plans
8.5.1 The Developer must complete construction drawings in accordance with the Approved Design in such format as Council may reasonably require (Construction Plans) and submit them to Council for approval, Such approval not, to be
8.5 2 Council must promptly review the Construction Plans and provide comments to the Developer. The Developer must promptly amend the Construction Plans to take into account the comments made by Council and re-submit the revised
Construction Plans. When the Construction Plans are satisfactory Council will notify the Developer of its approval (in its capacity as a party to this document, not as consent aLithority) and these plans will be the Approved Construction Plans.
The Developer agrees that the Works must be carried out:
in a safe, proper, efficient and workmanlike manner;
in accordance with the Approved Construction Plans and any other information submitted under this document;
in accordance with all approvals and consents obtained for the Works; and complying with any reasonable directions from Council in respect of the construction of the Works.
8.7.1 The Developer must in respect of the Works take out and maintain the following insurances:
(a) public liability insurance for at least $20,000,000 for each accident or event or for such other amount as Council may reasonably notify;
(h) construction all risk insurance for the replacement value of the Works: and (c) insurance against death or injury to persons employed in relation to
undertaking the Works.
8.7.2 All insurance policies must
be with a reputable insurer acceptable to Council,
have endorsed upon them the rights and interests of Council;
have no exclusions, endorsements or alterations unless consented to by Council; and
include a cross liability clause providing that the insured applies to Council and the other insured persons as though a separate policy had been issued for each person.
8.7.3 The Developer must submit a copy of a certificate of currency of the insurance to Council prior to commencement of the construction of the Works and when otherwise reasonably requested by Council.
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8.7.4 If any loss or damage arises from any cause covered by these insurance policies.
the Developer must immediately apply for the insurance money and expend it together with the Developer's money to promptly rectify the loss or damage.
8.8 Inspection of Works
The. Council as a party to this document and not as a consent authority may (but is not obliged) at reasonable times and on reasonable notice inspect the Works dLlring the course of construction. Council will promptly in good faith inform the Developer in writing of any matenal or significant defect, error or omission relating to the construction of the Works identified during or as a result of the inspection. The Parties expressly agree that any failure to identify a defect, error or omission will not be construed as amounting to an acceptance by Council of that defect, error or omission,
8.9 Works Completion
When, in the opinion of the Developer, the Works have reached completion, the Developer must notify Council in writing and must include in that notice:
a statement from the person with the responsibility, carriage and supervision of the construction that in their opinion the Works have reached completion; and
copies of any warranties, guarantees, maintenance, information or other material reasonably required for the ongoing maintenance of the Works; and
at least 3 sets of 'as built' drawings of the Works in such formats as Council may require,
(Completion Notice), 8.10 Inspection by Council
Council must inspect the Works within 14 days after receipt of the Completion Notice and must by written notice to the Developer:
concur that the Works have been completed: or
disagree that the Works have been completed and identify the errors or omissions required to be rectified for completion of the Works.
The Developer must take into account the errors or omissions identified by Council (if any) and re-submit the Completion Notice.
8.11 Completion Date
The date of completion of the Works will be the date specified in the Completion Notice to which Council concurs, the date the Parties otherwise agree or if the matter is referred to Dispute Resolution the date determined by an Expert.
8.12 Non completion of Works
If the Developers fails to complete the Works as required by this document by the Completion Date Council may:
accept the Works as completed; and
arrange for, the necessary further construction or rectification to complete the Works in accordance with this document at the cost of the Developers.
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The Developers must pay to Council the cost incurred by Council in completing the Works.
within 14 days of receiving an invoice for those costs.
For the avoidance of doubt. the Parties acknowledge and agree that on completion of the Works or acceptance of the Works by Council the Developer transfers the Works to Council and Council will own the Works.
8.14 Public Purpose
The Works are constructed for Council as public amenities.
Defects Liability Period
9.1 Rectification in the Defects Liability Period
If Council notifies the Developer of a defect in the Works within the Defects Liability Period, the Developer must promptly remedy that defect to the satisfaction of Council.
9.2 Defects Liability Period
Defects Liability Period means the period of 6 months from the date of completion of the Works or acceptance by Council of the incomplete Works.
9.3 No Limitation
This clause does not limit any other right, power or privilege of Council with or arising under this document or any other document or otherwise at law in respect-of any defect in the Works.
10.1 Provision of Security
Prior to the issue of any Construction Certificate for the Proposed Development, the Developer will provide to Council either the payment of a bond or a Bank Guarantee for
$742,108 (Works Security Amount) as security for the due, prompt and proper
observance and performance by the Developer and the Owners of their obligations under this document.
10.2 Form of Security
In the event of any Subsisting Breach by the Developer, the Council may, without further notice to the Developer or the Owners, call up the Bank Guarantee or apply the bond for any amount payable to Council If at any time any money is paid under the Bank Guarantee or the bond, the Developer must at the request of the Council provide the Council with a supplementary or replacement Bank Guarantee or make further payment for the bond so that the amount of the Bank Guarantee or bond held by the Council is the amount properly required to be provided under this document.
10.3 Price Index Increases
On each anniversary of the date of this document the Security Amount applicable immediately prior to that anniversary will be increased by the same percentage as the annual percentage increase, if any, in the Price Index most recently published prior to the
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relevant anniversary. The increased Security Amount will be the Security Amount in the subsequent 12 months.
10.4 Progressive Release of Security
Subject to the Developer complying with the its obligations under this Agreement, Council will at the request of the Developer release 80% of the Works Security Amount to the Developer on a pro rata basis as the Works are completed, with 20% of the Works Security Amount retained until the end of the Defects Liability Period. Council, is only required to release a Bank Guarantee where a replacement Bank Guarantee for the relevant reduced amount of the Works Security Amount is provided by the Developers.
Application of s94 and s94A of be Act
For the purpose of s93F(5) this document excludes the operation of soctions 94 and 94A of the Act in considering the Development Application(s) for the Proposed Development.
12.1 In the event that the Proposed Development is changed. modified or amended prior to completion of the development, and a further development or modification application is made for the development of the Land. then any Development Contribution made pursuant to this document will, to the extent that it is lawful:
be taken into account as part of any development contribution for the purpose of any planning agreement relating to a later application in respect of the Land: and be taken into account in determining any development contribution under s94 and s94A of the Act; and
be taken into account in determining whether or not any planning agreement excludes the operation of s94 and/or s94A of the Act; and
be taken into account for the purposes of s94(6) of the Act; and be taken into account for the purposes of s79C of the Act.
13. Easements Covenants and Restrictions on Title
13.1 Prior to any dedication of the Dedication Lands to Council, the parties are to resolve what easements, covenants and/or restrictions on title must necessarily be created upon any subdivision of the Land, having regard to the provisions of Part 6 of the Conveyancirig Act 1919.
13.2 The parties warrant one with the other to do all things necessary to procure the registration on title to the Land or title(s) to any relevant lot created by sLibdivision of the Land of any easement, covenant or restriction on title as referred to in clause 13.1 of this document.
Joint and individual liability and benefits
Except as otherwise set out in this document, any agreement. covenant, representation or warranty under this document by 2 or more persons binds them jointly and each of them
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individually, and any benefit in favour of 2 or more persons is for the benefit of them jointly and each of them individually.
Nothing in this document will be construed as requiring the Council to do anything that would cause it to be in breach of their respective obligations at law, and without limitation, nothing will be construed as limiting or fettering in any way the exercise of any statutory discretion or duty.
Representations and warranties
The Parties represent and warrant that they have power to enter into this document and comply with their obligations under the document and that entry into this document will not result in the breach of any law.
If a clause or part of a clause of this document can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal. enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal,
unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of this document is not affected.
18.1 Development Consents
If Development Consent is granted by the Council with respect to the Development Application(s), this document terminates with respect to that particular Development Consent:
on the lapse of the Development Consent; or
on the formal surrender of the Development Consent; or
on the final determination by a Court of competent jurisdiction issuing a declaration that the Development Consent is invalid.
On the date of termination or rescission of this document. subject to the following sub-paragraphs each party releases each other from any obligation to perform any term, or any liability arising out of, this document after the date termination.
Any unapplied Monetary Contribution, bond or Bank Guarantee that has been provided to Council will be refunded to the Developer as soon as practicable after the date of termination.
(C) Termination or rescission of this document does not release either party from any obligation or liability arising under this document before termination or rescission.
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Where Council is not the certifying authority for any aspect of the Proposed Development the Developer must on the appointment of a private certifier provide a copy of this document to the private certifier.
Breach Notice and Rectification
20.1 If the Developer is or Owners are, in the opinion of Council, in breach of a material obligation under this document, Council may provide written notice of the breach to the Developer or Owners and reqUire rectification of that breach within a reasonable period of time (Breach Notice).
20.2 Unless there are compelling reasons to extend or abridge the period of time permitted for rectification, a reasonable period of time is taken to be fourteen days from receipt of written notification of the breach.
20.3 If the breach is not rectified within the time specified in the Breach Notice, or otherwise agreed between the Parties, Council may rectify the breach as the agent of the Developer and at the risk of the Developer. The Developer must pay all reasonable costs incurred by the Council in remedying the breach.
21.1 Determination of disputes
If there is any dispute, difference of opinion or failure to agree relating to or arising from this document (Dispute) that dispute must be referred for determination under this clause.
21.2 No legal proceedings
The Parties must not bring or maintain any action on any Dispute (except for urgent injunctive relief to keep a particular position) until it has been referred and determined as provided in this clause.
21.3 Notice of disputes
A Party referring a Dispute for determination must do so by written notice to the other parties (Dispute Notice) which must specify the nature of the Dispute and a nominated officer of the referring party with sufficient authority to determine the Dispute.
21.4 Negotiated resolution and selection of expert
On service of the Dispute Notice the receiving Parties must refer the Dispute to an officer with sufficient authority to deterr'nine the Dispute. The nominated officers of each Party must meet at least once and use reasonable endeavours to resolve the Dispute by negotiation within seven days of service of the Dispute Notice. Any resolution must be recorded in writing and signed by each nominated officer. By agreement, the nominated officers may employ the services of a mediator to assist them in resolving the Dispute.
If the nominated officers are unable to resolve the Dispute within seven days of service of the Dispute Notice they must endeavour within the following seven-day period to appoint an expert by agreement. That appointment must be recorded in writing and signed by each nominated officer.
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(C) If the nominated officers do not record the appointment of an expert within that second seven day period, the expert must be appointed, at the request of any party, by the President for the time being (or if none, the senior elected member) of the Law Society of New South Wales.
21.5 Assistance to the Expert
(a) Once the Expert has been appointed (the Expert), the Parties must:
each use their best endeavours to make available to the Expert all information the Expert requires to settle or determine the. Dispute; and ensure that their employees, agents or consultants are available to appear at any hearing or enquiry called by the Expert.
(b) The Parties may give written submissions to the Expert but must provide copies to the other Parties at the same time.
21.6 Expert's decision
(a) The decision of the Expert must
be in writing and give reasons: and
be made and delivered to the parties within one month from the date of submission of the dispute to the Expert or the date of completion of the last hearing or enquiry called by the Expert, if later.
(b) The Expert may conduct the determination of the Dispute in any way it considers appropriate but the Expert may, at its discretion. have regard to the Australian Commercial Disputes Centre's guidelines for expert determination of disputes or such other guidelines as it considers appropriate.
(c) The Expert's decision is final and binding on the parties.
(d) The Expert must act as an expert and not as an arbitrator.
21.7 Expert's costs
(a) The Expert must also determine how the expenses relating to the reference of the Dispute (including the Expert's remuneration) should be apportioned between the parties and in default of a decision by the Expert those expenses must be borne by the parties equally.
(h) In determining the apportionment of costs the Expert may have regard to what the Expert, in its reasonable opinion, considers to be a lack of good faith or a failure to use reasonable endeavours by any party in assisting the Expert or resolving the dispute between the parties' nominated officers as required by this clause.
21.8 Continual performance
Each Party must continue to perform its obligations under this document while any dispute is being determined under this clause.
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Registration of document on Title
The Developer acknowledges that Council intends to register this document under section 93H of the Act on the Lands and on registration by the Registrar-General the document will be binding on and enforceable against the owners of the Lands from time to time as if each owner for the time being had entered into this document.
22.2 Consents to Registration
This document must be registered on the title of the Land as soon as practicable after it is made. Each Party must promptly execute any document and perform any action
necessary to affect the registration of this document on the title of the Land 22.3 Release from Registration
Council will at the request of the Developer release part of the Land from registration of this document where the Development Contributions have been made including completion of the Works and no other money is owing to Council under this document. The obligations of the Council are satisfied when Council provides the Developer with a signed Request in registrable form for the release of registration of this document
22.4 Registration Expenses
The Developer must pay Council's reasonable expenses including registration fees, any stamp duty, legal costs and disbursements. for the registration of this document and the subsequent removal of registration, on an indemnity basis.
The Developer will be entitled to the benefit of any special or discounted rates charged to Council by its consultants and legal advisers and will be entitled to seek assessment of any legal costs, as a third party payer under s 350(2) of the Legal Profession Act 2004:
23.1 Costs of document
The Developer must pay Councils fees and reasonable expenses, including legal costs and disbursements on an indemnity basis in relation to:
the negotiation, preparation, execution and amendment of this document, and exhibition fees or fees payable to the NSW Department of Planning in any way associated with this document,
in the amount of $27,058.61.
If any payment made by one party to any other party under or relating to this document constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be increased so that the net amount retained by the supplier after payment of that GST is the same as if the supplier was not liable to pay GST in respect of that supply. This provision is, subject to any other agreement regarding the payment of GST on specific supplies, and includes payments for supplies relating to the breach or termination of, and indemnities arising from, this document.
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A party must not transfer any right or liability under this document without the prior consent of each other party, except where this document provides otherwise.
Any notice to or by a party under this document must be in writing and signed by the sender or, if a corporate party, an authorised officer of the sender.
Any notice may be served by delivery in person or by post or transmission by facsimile to the address or number of the recipient specified below or most recently notified by the recipient to the sender:
Golden Mile 1888 Pty Ltd + Pennant Hills Estate 88 Pty Ltd + Rainbowforce Pty Ltd (ACN 463 711 963)
Level 1 74 Macquarie Street PARRAMATTA NSW 2150
The Hills Shire Council -
-Att Mothcw Peee ?UV)
1.29 Showground Rood
3 Cc\Lc\ (cc+/
CASTLE HILL NSW 21-54 TI a u lc\r'v- t-kk's sc1J S3 Any notice is effective for the purposes of this document upon delivery to the recipient or production to the sender of a facsimile transmittal confirmation report before 400pm local time on a day in the place in or to which the written notice is delivered or sent or otherwise at 900am on the next day following delivery or receipt.
23.5 Governing law and jurisdiction
This document is governed by and construed under the law in the State of New South Wales.
Any legal action in relation to this document against any party or its property may be brought in any court of competent jurisdiction in the State of New South Wales
(C) Each party by execution of this document irrevocably, generally and
unconditionally submits to the non-exclusive jurisdiction of any court specified in this provision in relation to both itself and its property.
Any amendment to this document has no force or effect. unless effected by a document executed by the parties.
23.7 Third parties
This document confers rights only upon a person expressed to be a party, and not upon any other person.
23.8 Precontractual negotiation This document:
(a) expresses and incorporates the entire agreement between the parties in relation to its subject matter, and all the terms of that agreement and
Pianning Agreement 1 211684171 DTSDTS 16
(b) supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties in relation to that subject matter or any term of that agreement.
23.9 Further assurance
Each party must execute any document and perform any action necessary to give full effect to this document, whether before or after performance of this document
23.10 Continuing performance
The provisions of this document do not merge with any action performed or document executed by any party for the purposes of performance of this document.
Any representation in this document survives the ecutinn of any document for the purposes of, and continues after, performance of this document
Any indemnity agreed by any party under this document:
constitutes a liability of that party separate and independent from any other liability of that party under this document or any other agreement; and survives and continues after performance of this document.
Any failure by any party to exercise any right under this document does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
The rights of a party under this document are cumulative and not exclusive of any rights provided by law.
Any provision of this document which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this document or the validity of that provision in any other jurisdiction.
This document maybe executed in any number of counterparts, all of which taken together are deemed to constitute one and the same document.
23.15 Party acting as trustee
If a party enters into this document as trustee of a trust, that party and its successors as trustee of the trust will be liable under this document in its own right and as trustee of the trust. Nothing releases the party from any liability in its personal capacity. The party warrants that at the date of this document:
all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by the party as trustee and have not been varied or revoked and the trust is a valid and subsisting trust:
the party is the sole trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by this
Planning Agreement 1 21168417.1 OTS DTS 17
document on behalf of the trust and that this document is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust
(C) no restriction on the party's right of indemnity out of or lien over the trust's assets exists or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the trusts assets.
PIanmng Agreement 1 21168417.1 DTS DTS 18
The common seal of The Hills Sh affixed unJer a resolution passed
2015 in presence o
Print name /
Signed for and on behalf of Golden Mile 1888 Pty Ltd + Pennant Hills Estate 88 Pty Ltd +
PtyLtd (ACN 463 711 963)
Print name Print name
Signed for and on behalf of Golden Mile 1888 Pty Ltd:
Signed for and on behalf of Pennant Hills Estates 88 Pty Ltd:
UL N E h PcT TA
( )FAN J/,AT TAR
Signed for and on behalf of Rain bowforce Pty Ltd:
- Secretary/Director Director
ATTM S' FAYAO
Print name Print name
Planning Agreement 1 21168417.1 DTS DTS 19
Schedule 1— Dedication Lands
The land to be dedicated to Council as public open space is shown on Figure 1.
Details of the Dedication Lands and the Dedication are as below.
Lot DPJner Area to be dedicate1Timingof
1 1028075 Rainbowforce Pty Ltd 1,381_(whoIel Prior to the issue of any Strata 2 1028075 Rainbowforce Pty Ltd 707 (whole lot) I Subdivision
A 29919 Rainbowforce Pty Ltd 526 Prior to the issue
of a Strata
B 29919 Rainbowforce Pty Ltd 510 Subdivision
C 29919 Rainbowforce Pjy Ltd 34 either Buildings
A, B or C,
5 30115 1 Rainbowforce Pty Ltd 1,043 whichever is
4 30115 RainbowforcePtLtd 1289
3 301 15Pennant Hills Estates 88 Pty Ltd 338
Estimated value _$5,296,969
Planning Agreement 1 21168417 1 DTS DTS 20
?1uiw I - Land Mvdlcffmo as cçn spsLv
Figure 1 — Land Dedication
Planning Agreement 1 21168417.1 DTS DTS 21
Schedule 2 - Works-in-Kind
Contribution type Works-in-Kind______
Roundabout at Young Rd/Post Office St Qpp Space Embellishment— CPLOS1
Cycleway/Pedestrian Path in Transmission Easement_____
Total value of Works-in-Kind Total Monetary Contribution
Additional Monetary Contribution
Monetary Contribution Rates
Monetary_rate Per 1 bedroom unit _______ 1.580
Moneyiate per 2 bedroom unit 2,028
Monetary rate per 3+ bedroom unit 2,308
For Information Purposes only, the Monetary Contribution relates to:
SLignals at Jenks Rd/PostOffice St ,
64 lO4J pgradeto Jenkins/PHills Rd_intersection 139,356 _upgrade_to stormwater mgt facities --
Carlingford_Community Centre -- - 153,292 Open Space Embellishment—CPOS1
L______________ Total ________ 920,984
253,000 Prior to any Strata Subdivision Certificate
459.50QJ Prior to the issue of a Strata Subdivision Certificate for either Buildings A. B or C.
29.608 whichever is subdivided last 742,108
920.984 Pro rata paymenHn accordance with clause 7 of
this document Quantum Pro rata payment in calculated using accordance with clause 7 of
Monetary this document Contribution Rates
Planning Agreement 1 21168417.1 DTS DTS 22
259 Pennant Hills Road 261 Pennant Hills Road 277 Pennant Hills Road 279_Pennant Hills Road 281 Pennant Hills Road
Rainbowforce Pty Ltd
- Rainbowforce Pty Ltd
• Rainbowforce Pt1_Ltd Rainbowforce Ply Ltd
I Rainbowforce Pty Ltd
Schedule 3 - Owners
Legal description 1/DP102 8075 2/DP 1028075 1/DP301 15 8/DP264 12 71DP2641 2 6/DP26412 A1DF29919 B/D P29919 C1DP2991 9 7/DP3O1 15 5/DP3O1 15 4/DP3O1 15 3/DP30115
DP301 15 2/DP3O1 15 25/DP21 386 24/DP21 386 23/DP21 386 7/DP9614 1/DP 135608 9/DP655986
28 Shirley_Street -
_______ 30 Shirley Street - - ____ 2 Janell_Crescent
6 Janell Crescent 8 Jane II Crescent 10 Janell_Crescent Janell Crescent
(former road - also known as 253 Pennant Hills Road)
247 Pennant Hills Road - 249 Pennant Hills Road
251 Pennant Hills Road 255 Pennant Hills Road 257 Pennant Hills Road
Rainbowforce Pty Ltd - Rainbowforce Pty Ltd Rainbowforce Pty Ltd Rainbowforce Pty Ltd Rainbowforce Pty Ltd ______ • Rainbowforce Pty jLtd Rainhowforce PyJ4d Rnbowforce Pty Ltd Rainbowforce Ply Ltd Golden Mile 1888 Ply Ltd Rainbowforce Pty Ltd
- Rainbowforce Pty Ltd_______
Pennant Hills Estates 88 Pty Ltd Rainbowforce Ply Ltd
_______ Golden Mile 1888
Golden Mile 1888 Pty Ltd - Golden Mile 1888 Pty Ltd Rainbowforce Pty Ltd
Pennant Hills Estates 88 Pty Ltd Address
14 Shirley Street - - 16 Shirley Street 18 Shirley Street 20Shiey Street 22 Shirley Street 24Shirley Street 26 Shirley Street
Planning Agreement 1 21168417.1 DTS DTS 23
Schedule 4 - Proposed Development
39 one bedroom units 343 two bedroom units; and 71 three bedroom units Anticipated Dwellings: 453
Planning Agreement 1 21168417.1 DTS OTS 24
Annexure A - Caveat
if tile di(ii tel3lL'S to less than the ss+rnk of the lwd in the foT,i.t sif the Regisstor. ks..ription of the pert cc prenikes nfketect, inisent with iii? claim ci nt:t -a: if it-it f.t-rn nnd it, ,1,, sp&i6cj by Scioduk3olthc Rent hopsnls Itm 199,.
Part 1DPICi2807. 2,1)Pl022075. A/DP299I9. B-DP2991. 013112999. 3DP30I It, 4iDP30I 15, 51DP301 15
Hcir.tr the rar j5iitifil on tIr plan anhlexiiJ licrcin usd nutcl A"
Ct Trrceai. isis
Dci:scry i5amc, Addrcmct'DX and tetcphc-nc coo€
Show only the rctjictct-oi pa pricsca(c) agains sshnn- ilu. clelin is snide: lanceS the full name and addrecs Ruioboifce Pty lid
Penoali Irlis F-"ci 88 Pty lid Reilialy Fie. 43 Hun:cr Sired Parramritta NSW
Posteode 2151) lascet the full name and mata' address
The Hills Shire Council 29 Sh0wrund Road (a'ilc Hill NSW
AI3N 25 034 494 656 Postcodc: 2154
This swaf he .i51/Sat odiSrian It deilred, a iAcumeni lsch,uiye lox in 4W may be praidcdla addition SI red Addrna: 129 Showaro.rrrd Road, (:arstle fIll tsSW
Poetcods 2154 Dncumi,etl Excininiec Bca in NSW iadditional)
- NCflJ i(:hc-'Uor't ,nn',W 5e /ran Jo, it fl.iCi' O) (.5C3 ehoaiges. the ArpsDra-n€ JLcM.s l.awl
!rt/i.rrnaioa Diiin:onjerrU be n,ütd :injan O8C (Cr) ACTION list by irumbar wily the itcols in Schedule 2 prs'hibi ed by thin Cascat
PROHIBITED 1,2 and 7
(H) The cave.ztcc claims to be cr,tlt1 to the eOt:e air lritcit npccitkd iii Sc?roJuk I in the nbivc land
by ruc ofthe iriizi-umcrrt ten cot in the scl.c*Julc and prohibits th Ref1rM (icr.crct frotr takuilt, with rospot to the land , rite action spe.itcd idu'w artless the cavcnicr has cawuted in wnliigor this essoat has lapsed or beat withdrawn.
I iA_i fr-sn
All lsindwuiiilqt :a,ust be iii Hoc-la capitals Page 1 012
CAVEAT Lcae chit sztca cku. Aflit Fonti 08\
Prohibiting Recording of a Dealing or Plan viditiolml Pli(Vt 10 the lest 1tf-hanj Lioacc; 93-10-191 or Granting oia Pou.eaory Application oxrcr.
Cicr.00s (J.ien Lawstrs New South Walee
Section 74F Real Property Act 1900
PRIVACY NOTE: SectIon 310 of the Real Property Act 1900 (RP Act) authoeleee the Registrar Qsnerai to colloct the Wottnatlon required by this form for the eatabtlthmert and maintctsau of the Real PrU(ty Act Register. Section 98a RP Act reqtree that the Register is rnide eve&tIe to any person lot searth upon payment of a fee, tfy.
STAMP DUTY C )FIiCn of &ate RcveiiucutCiiy -
(H) REGISTERED DEAUNG (C) LODGED BY
(L)) REGISTERED PROPRIETOR
(F) ADDRESS IN NEW SOUTH WALES FOR SERVICE OF NOTICES ON THE CAVEAOR
PlannIng Agreement 1 21168417.1 DTS DTS 25
WARNING: care ehould be ex,rcsa.d In conipletrng a caveat form An frsasippo,tabla Caveat may be challenged in the Supreme Court:
darnaes may be aisarded for lodgilg a caveat wthoutJuebffcauon; and pattaltios could be imposad for a breach of the Oatha Act 1900 and sectIon 117 of the Real Property Act 1900. Furthermore failure to observe the rauirircnts of section 117 of the Real Property Act 1900 and regulatIons land 8 of the Real Property Regulation 1998 may nsAa the Caveat invalid.
(I) SCHEDUII 1 Estate orintereetclaimed aturc of the esiale or inicret :0 the Iar4
Equit.hIc interest to hasc title ofthe land trantlerrerd or dcdicated so the cawater in ounnes.'tiear with dcvclnpmcnt of [he ttnd
}3yvirtue of the iosUumcct icferrcd to below
Nature of Iesrnmieit L)W Par1ie.
PLanning .sgreervcet The Hills S1tiieCounc!I
Rrisnbsiwfsne Ity Ltd Pennant hills Estetes 88 l'ty lid Odder. Mlc 188t Ply lid f.ictns staed below
ifi SCHEDULE 2 Action prohibited by this caveat
I. The recording an the KcV of err dea:ir.g oilier :har. a plan allectlng the cstate or interest claimed by the etiveatof and set cut in Schedule I -
The rcgiArjtiAi cc rcrdiog of any plan mther than a delimitation pian afkciing the ci.ac or interest clamcd by lhc car cator and 30 out in Sehlcdulc I.
Fite registration nfdelimitalicc plan' No.
The granting cilaisy peeacsacry appliestlon with respect to the land referred Iakse.
The recerdirig in the rqiucr ofany dealing aflènainig the estate cc intcresr ssiwtniclr the aiscztcr is registered prepriftor.
The granting of an application to estinguish the constest try
the sceording in the resister of a ssrit affecting the estate or interest claimed try the carcator nn set cut in Schedule I () STATUTORY DECLARATlON
I. tL)lCiflflly and sincerely deiJtre that -
I, in the best ofmy kneswIcdge, infecniaticn and belief the cascator has a goed mid valid elairr to the cgtate or interest set out in Schedule I
This cisseCt dries not require the lcase of the Supreme (ourt or the endorsed consent of the
rcg:ste:ed prcçritrturc ; and
This cnvaI is certU';ed correct for tlic pn.tr ,sses of the Real Property Act I 900.
I make this solrtrn decImation cennseietilIouasly bclicsine the earle to be our and by s-lrtue cr1 the Oaths Act 1900.
Made a-nd ubcribcd at in the State e,fiiess South Wales
on in the preacitceof-
Signniure of witness Sigutatwe ofdeelnrant:
'sanc of witncss:
AddretofiIneci.: Capacity of declarmrt if other than theesitmnt.
Qusifirstiors ds.tr.ess.: Justice of the Peace PraiusIng Sen.icrtce Other lsp.cufsi
(t.) CONSENT OF THE REGISTERED PROPRIETOR of the estate or Interest affected by the caveat (section 74F Real Property Act 1910) I. the registered pruprctcc nasrmcd at lcttc- (I)l, fir the p.lrperics ofisw. 7IF(6) Roat Prepenly Act 19011 cemly, s-nrncnit tin thru sasecat.
Sgnuiture sir rcgislcrcd proprictor:
I. A plan dctiriig the inuedarkrs ofand in a limited fnlioofthe Register. See Part lVlJ Real l'rvperty Act 1903.
An sppticaton miskhsy a pciaon claiming title IL) land by siruc of amissauc poascraion. See Part VIA Real Property Act 1900.
As the I14nanmrent of Lands rrav not he ubft to proside the ScMOeS of a meitke Of the pence or tithes quasfied witness, the statutory dechara:on should 1a signed and witnessed prior to lodgement at Land and Property Inibrinatmon l)ieilbxi.
Alt handwriting must be in block capitals Pegs 2012
Planning Agreement 1 21168417.1 DTS DIS 26