• No results found

Planning Agreement

N/A
N/A
Protected

Academic year: 2023

Share "Planning Agreement "

Copied!
27
0
0

Loading.... (view fulltext now)

Full text

(1)

Planning Agreement

BATCH

NO:

TIME:

The Hills Shire Council 17 APR 2015

Council

THE HILLS SHIRE COUNCIL

Stamford House 88 Pty Limited (ACN 100 778 336)

Developer

gadens

77 Castlereagh Street Sydney NSW 2000 Australia

T +61 2 9931 4999 F +61 2 9931 4888 Ref AQW/DTS :35601465

(2)

Contents

1. Definitions and interpretation 1

2 Planning agreement under the Act 4

Application of this document 4

Operation of this document 4

Dedication Lands 4

Dedication 5

Monetary Contributions 6

Works in Kind 7

Defects Liability Period 10

Security - Works 10

Application of s94 and s94A of the Act 11

Modifications 11

13, Easements Covenants and Restrictions on Title 11 Joint and individual liability and benefits 11

No fetter 11

Representations and warranties 12

Severability 12

Termination 12

Private Certifiers 12

20 Breach Notice and Rectification 13

21, Dispute resolution 13

Registration of document on Title 14

General provisions 15

Schedule 1 - Dedication Lands 19

Schedule 2 - Monetary Contributions and Works-in-Kind 21

Schedule 3 - Owners 22

Schedule 4 - Proposed Development 23

Annexure A - Caveat 24

(3)

Planning Agreement

Dated

Parties

The Hills Shire Council (Council).

2. Stamford House 88 Pty Ltd (ACN 100 778 336) (Developer).

Background

The Developer owns the Land.

Council is the consent authority pursuant to the Act for the Proposed Development.

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 is granted.

Operative provisions

1. Definitions and interpretation

1.1 Definitions

In this document unless the context otherwise requires:

Act means the Environmental Planning and Assessment Act 1979

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;

Planning Agreement 1 21168435.1 DTS DTS

(4)

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 JP-943/2010:

Development Consent means the approval of the Development Application:

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 rezoning:

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 Street, 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 determined by multiplying the Monetary Contribution Rates by the number of dwellings approved for the Proposed Development:

Monetary Contribution Rates means the rates set out in Schedule 2. Occupation Certificate has the same meaning as in the Act;

Party means a party to this document, including their successors and assigns: Price Index means:

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;

Pianning Agreerneffi 1 21168435.1 DTS DTS

(5)

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.

1.2 Interpretation

In this document unless the context otherMse 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;

(ci) 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 arid 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:

(0) 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

(p) reference to a statute includes al] 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.

Pianning Agreement 1 21168435.1 DTS DTS

(6)

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 Development and applies to the Land.

4. Operation of this document

4.1 Until the planning agreement operates, this document constitutes the Developers offer to ontcr into the planning agreement if consent under s80 of the Act is granted to the.

Development Application for the Proposed Development.

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 the planning agreement is entered into as required by the condition in accordance with clause 25C(1) of the Regulation.

4.3 This document provides for Development Contributions to be made with respect to the Development Consent as outlined in Schedule 2.

5. Dedication Lands

5.1 Developer must not deal with property

The Developer 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.

5.2 Caveat

The Developer agrees that its obligations under this document create an equitable interest in the Dedication Lands held by Council and it agrees 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.

On the date of execution of this document, the Developer will 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.

Planning Agreement 1 211684351 DTS OTS 4

(7)

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 Councils 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. Dedication

6.1 The Developer must at its 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 subdivison is registered dcdicating the Dedication Lands to Council, oi 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. e 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 Developer must pay to Council the amount invoiced for expenses under sub-clause 4 on 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 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.

Pianning Agreement 1 21168435.1 DTS DTS

(8)

7. Monetary Contributions

7.1 Payment

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 bank account.

7.2 Additional Dwellings

If the Development Consents approve dwellings in addition to the Anticipated Dwellings then the Developer must 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

7,4.1 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

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

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.

Pianning Agreement 1 21168435.1 DTS OTS

(9)

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

8.31 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 Approvals

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.

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

unreasonably withheld.

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

Planning Agreement 1 21168435.1 DTS DTS

(10)

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 authority) and these plans will be the Approved Construction Plans.

8.6 Construction

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 Insurance

8.7.1 The Developer must in respect of the Works take out and maintain the following insurances:

public liability insurance for at least S20.000,000 for each accident or event or for such other amount as Council may reasonably notify:

construction all risk insurance for the replacement value of the Works; and insurance against death or injury to persons employed in relation to undertaking the Works.

8.7.2 All insurance policies mList:

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.

87.4 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 (bLit is not obliged) at reasonable times and on reasonable notice inspect the Works during the course of construction. Council will promptly in good faith inform the Developer in writing of any material 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

Planning Agreement 1 211684351 DTS DTS

(11)

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

(C) 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 Developer 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 Developer.

The Developer must pay to Council the cost incurred by Council in completing the Works.

within 14 days of receiving an invoice for those costs.

8.13 Ownership

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.

Pianning Agreement 1 21168435.1 DTS DTS

(12)

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

Security - 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

$373,690 (Works Security Amount) as security for the due, prompt and proper observance and performance by the Developer of its 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, 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 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

Piannirg Agreement 1 21168435.1 DTS DTS 10

(13)

release a Bank Guarantee where a replacement Bank Guarantee for the relevant reduced amount of the Works Security Amount is provided by the Developer.

11.

Application of s94 and s94A of the Act

For the purpose of s93F(5) this document excludes the operation of sections 94 and 94A of the Act in considering the Development Application(s) for the Proposed Development.

12. Modifications

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 Conveyancing 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 subdivision of the Land of any easement, covenant or restriction on title as referred to in claLise 13.1 of this document.

14. 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 individually, and any benefit in favour of 2 or more persons is for the benefit of them jointly and each of them individually.

15. No fetter

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.

Planning Agreement 1 21168435.1 DTS OTS 11

(14)

nothing will be construed as limiting or fettering in any way the exercise of any statutory discretion or duty.

16. 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.

17. Severability

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. Termination

18.1 Development Consents

If Development Consent is granted by the Council with respect to the Development Application, this document terminates:

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.

18.2 Consequences

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.

Termination or rescission of this document does not release either party from any obligation or liability arising under this document before termination or rescission

19. Private Certifiers

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.

Planning Agreement 1 21168435.1 DTS DTS 12

(15)

Breach Notice and Rectification

20.1 If the Developer is. 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 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.

Dispute resolution

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 determine the Dispute. The nominated officers of each Party must meet of 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.

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.

PianningAgreenient 1 211684351 OTS DrS 13

(16)

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

The decision of the Expert must:

(i) be in writing and give reasons: and

(U) 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.

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.

The Expert's decision is final and binding on the parties.

The Expert must act as an expert and not as an arbitrator.

21.7 Expert's costs

The Expert must also determine how the expenses relating to the reference of the DispLite (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.

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.

22. Registration of document on Title

22.1 Acknowledgement

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 owner of the Lands from time to time as if each owner for the time being had entered into this document.

Pianning Agreement 1 21168435 1 DTS DTS 14

(17)

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 a 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 Councils 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. General provisions

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 $24916.93.

23.2 GST

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.

23.3 Assignment

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.

23.4 Notices

(a) 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.

Pianning Agreement 1 211684351 OTS DTS 15

(18)

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:

Stamford House 88 Pty Ltd Sam Fayad

Level 1. 74 Macquarie Street PARRAMATTA NSW 2150 The Hills Shire Council

Att: Mathow Pearce CtL(

7

20Showground Rood 3

Cc' Coon

EACTLE HILL NEW 2154

-J

-1 1

c3

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 SoLith 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.

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.

23.6 Amendments

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:

expresses and incorporates the entire agreement between the parties in relation to its subject matter. and all the terms of that agreement; and

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.

Pianning Agreement 1 21168435.1 DTS DTS 16

(19)

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 execution 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.

23.11 Waivers

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.

23.12 Remedies

The rights of a party under this document are cumulative and not exclusive of any rights provided by law.

23.13 Severability

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.

23.14 Counterparts

This document may be 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 discretion 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

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 trusts assets exists or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the trust's assets.

Pianning Agreement 1 211684351 OTS DTS 17

(20)

The common seat of The Hills Shir affixed under a resolution passed by

2015 in presence of.

General Manager

11

/ SSHI1N

nunci, as

r

Mayor

bcva WLJJ4k__________ - 4,4ie.i JQiectcc

Print name Print name

Witness

(Jc A fr

Print name

/

Signed for-and on behalf of Stamford House 88 Pty Ltd: r

ca

Secretary/Director [)irector

Print name Print name

Planning Agreement 1 21168435.1 DTS DTS 18

(21)

Schedule I - 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 OP FOwner 1 Area to be - Timingof

dedicated (m2) Dedication

101 571146 Stamford House 88 Pty Ltd 9 Prior to the issue

7 512364 1 Stamford House 88 Pty Ltd 932 Subdivision 102 571146Starnford House 88Pty Ltd - 71 Building B.

I Certificate for

4 2503588 Stamford House 88FtyjLtd I 559

6T

512364 Stamford House 88 Pty Ltd 992

_ Total 2,563

I

Estimated Value $17268,624

Planning Agreement 1 21168435.1 DTS DTS 19

(22)

Figure

1

-

Land Dedication

Planning Agreenient 1 211684351 DTS DTS 20

(23)

Schedule 2 - Monetary Contributions and Works-in-Kind

r

Contribution .pe

L

works-in-Kind

Open Space Embellishment - CPLOS2

Cycleway/Pedestrian Path in Transmission Easement

Value $ Timing

349650 Prior to the issue of a Strata Subdivision Certificate for

BuJpB -

24040 Prior to the issue of a Strata Subdivision Certificate for

BuikiuigB -

Total value of_Works-in-Kind 373,690

T-

Total Monetary Contribution

--

Monetary Contribution 921984

Additional Monetary Contribution Quantum

calculated using Monetary Contribution Rates

L

_____ below

Pro rata payment in accordance with clause 7 of

this document Pro rata payment in accordance with clause 7 of

this document

LM1r Contribution Rates

Monetary rate per 1 bed room unit 4

Monetary rate per2 bedroom un 5336

Moneyjate per 3+ bedroom unft 6,073

For Information Purposes only, the Monetary Contribution relates to:

-

Signals at Jenkins Rd/Post Office St 49,528 pgrade to Jenkuis/PHills Rd intersection

- -

107.670

Upgrade to stormwater mgt facilities 223801

CarliftgprdUbrary 118.437

Carlingford Community Centre 1187]

Open Space Embellishment

-

CPOS1 93.703

Offset for Corner Park (Lots 1 and 2 DP 306,201

....1P28075)

921,984

Planning Agreement 1 21168435.1 DTS DTS 21

(24)

Schedule 3— Owners

Legal description_____

2/DP503904

Address

1 Thallon Street

1/DP503904 3 Thallon Street

101/DP571 146 5 Thallon Street

7/DP5 12364 5A Thallon Street

1021DP571146 5BThaHon Street 4/DP2503588 - 7_Thallon Street

L

6/DP12364 — 7A Thallon Street

Owner

- Stamford House 88 Pty Ltd StamfordHouse 88 Pty Ltd - Stamford House 88 Pty Ltd - Stamford House 88 Pty Ltd -

- Stamford House 88 Pty Ltd - Stamford House 88 Pty Ltd Stamford House 88 Pty Ltd

Planning Agreement 1 211684351 DTS DTS 22

(25)

Schedule 4 - Proposed Development

Demohtion of existing structures and erection of 18 storey mixed use development comprising:

. 20 one bedroom units:

139 two bedroom units;

16 three bedroom units;

407.9 rn2 retail floor space at ground level: and

five basement parking levels providing 304 car parking spaces Anticipated Dwellings: 175

Planning Agreement 1 21168435.1 OTS DTS 23

(26)

Annexure A - Caveat

L1 .fSnte Rer ne use

if the claim rrlotestcmlcss than the whalc ofthc land In the f)joofthc Register. a der..riptioms of the part nr prentisca alFecied, cc,nsbiemg with the clairi Sc) us,: on page 2 of this form and in the terms spxIicd by Sehcdulc3 cf the Real itRcuIa1,on_I99Smsreç51ircd. -

Tccrn-m Titk

Part: 10IITW57I 146 l02t1w57: 146. 4mp25035liL 6/1)1'S 12364 arst 701`5I2364 Being the parl identihed on the plan anrtcxoS hereto and marked "A'•

Nu:nmlmvm I orrem Tj:lc

L)cliny \vnc. Address or DX and Tcleçhone CODE

Itcec

Ifereure (optional):

Show only the ri'ereJ pm rictOr(s) against wheen the damns em mimck i,imcrt the full rtr.nc and nmldrcais Smmi,ford Hcuai 118 Pry Ltd

Rosary lloctsc. 43 Iluntct SIred PdramaxCo NSW

Poitcoda 2)50

Ir.srr, tw full name and 1'rtai address The Iflia Shire Ceuncil

129 Shxground Rciad Castle 11111 N'W

1\IIN 25034 494656 Poatcode: 2154

ihms must be misirce( aiidrosr lfdcsircd a Lh,eumeflt Fschangc hon in NSW may be piovcdoi in oddities.

Street Address: 129 Showound Rood, ()tle Hill NSW

Postoode: 2)54 Documcl Exchange KA in

if ii, cawtear s or dJ,rss fcir service ,tciticcj chant-ca. risj Dt'pw-wienr of (.wrmir. istuJ

mvvml P'?mmiI. 1't ?/eiy!" Dir isioss. must he ,memfj!icd v'itJr.r(?L-I.

1(4 ACTION I itt by nummlcr only the iternt in Schedule 2 probbiled by- this caveat PROHI8ITED 1.2 and 7

(11) Jl:c cac-c.ttas cltiztis to becnitled to the cState or itleritni açmècificcl in Schedule I in the above land

by sinue ofiho ineuumeni set out in that sehcdmk and proilI4Ls the Rcisorar CeeIscaaI from talsing. with rcspccl to the land the actimem speci1cd shone tinles' the utco has ct'enicd h wr tina or this dyes) has lops) of been nithdrwn.

NIM-All CAP .511

All handssiiting mut he in bl00 capitals. Page 1 of 2

CAVEAT Lce tha.pac clear. i'rin Fixm: OI(\

Prohibiting Recording of a Dealing or Plan add icnai sacn to the toi' Ira-band Licvnee 0340191 or Granting of a Poaeaaory Application comc

Llcn.naee &.a4cnn Ltaycrs New South Wale, Section 74F Real Property Act 1900

PIVACY NOTE: Section 31B or the Real Property Act1900 RP Act) authoiaes the RcglsW General to collect the lnloanatlon requIred by this fomi for the e taiahm and maintenance of the Real Property Act ReS)Or. SeCtion 968 RP Act requeos that the Regtabr in made aailabIo to any person ft search upon pa)mert of a fee. If any.

STAMP DUTY

(A) LAND

(Il) REGISTERED DEALING

(Ci LODGED BY

(U) REGISTERED PROPRIETOR

(E) CAVEATOR

41) ADDRESS IN NEW SOUTh WALES FOR SERVICE Of NOTICES ON THE CAVEATOR

Planning Agreement 1 21168435.1 DTS OTS 24

(27)

WARNING: care should be eseecaed in comploting a caveat lone. An ln5tpOthbe caveat may be thallanged in the Supranw Court;

damages may be aw3tded fo Iodghig a caveat without jusfficiticr; and penalties could be lrrpoted for a breach of the Oaths Act 1900 and section Ill of the Real Property Ad 1900. Furthermore fai to observe ft requlrmnents of section 117 of the Real Property Act 1900 and regulalloea 1 and 8 of the Real Property RegulatIon 1990 may make the caveat Itivalld,

(I) SCHEDULE 1 Estabaornrealclared

EqeitaNe Interest to have of the land trntfeered or dcduted tn the csnccv in cotnczio, rh &vcl çatscrl nl

N04re of tnstra.rncnl Plttr.n log Agronm.nt

ly sirtuc of the l*cls steed bvh,i.

rl appfio&sh.

lire uil:n Sire (0raicil Streitord House AS Pt Ltd

SCHEDULE 2 Action prohibited by this caveat

I. The rctrdirt lit the Rctstee ofans deal jet ettict rhn a phitt sfscIiri4 rheestete er intrctt claimed by the ceecalce and set cut in Sircdu:c I.

2. The rcghtratiz or rcxcding of any plait other than a delinritation plan affecting the estate or intetcit claintril by the and set cur :n S.hedule 1.

A. The regratiOo o(delinit.cion pan' No.

4. The granthit cf arr çscrciwy applkatic& isriti respect to the land referred to abort

S. The rcexr&wg in the reikIr.o if trny dealing afbxting the estate or interest of which the CIt%'CSIOr in regrstIxtxl pprie(cr.

6. The granting of an rIi.ntcer to cxtinguish the cresied by

. 1 he recceiiiop in the register ole writ affecting lire estate or intorest ctamsal by the cascator and set out in Schedule I.

STATUTORY D(CIARATIONJ

iciletunly nd Sincerel) declare that-

to the heat nfmy krs deilge, Infhernstkn and Iselief iht csseeicrr has a gcrc.J and alid claim to the ettate or interest set ct in Scho2ulo I

2. I bin esseel rIOCS not require the trave otthc Supreme Court or the ankrsai commit r( tIre

registered rerpricice and

(hit cancel oeec 1k5] ocrccn fv the purpoecsothte Real t'rcrperty Act 1900.

I ririkc oils sosmnr dcdrtrntiotr csucicnIicrunly bliutvin the came to be terse and by strut crl'the Oaths Act 1900.

Mark and ntbtcribcd at in thc State of (sew South Wales

on In the pvcnence of-

Sinalurc cdwhncts: . SttOtUTeC(deeIsr*Ut

Name omv.ttnesst

Addrcnt of witness: ('pacityofdeclsrant if cttsce than the cusc.stoe:

Qsurlitkaticrn r4witness justice l the I ice tractiung Slic.:cr Otnerf.tprqi-J

CONSENT OF THE REGISTERED PROPRiETOR of the estate or Interest SIISCISti by the caveat (secUon 14F Real Property Act 1900) I. the r isterol preçskici n,e,rr.i at ktter(L)i. Ice the parpnss ofscetctr 741'(6) Roil kcsrty Act lOobenly. moor rothms rennet Signature v-I rcrskroJ pftlpr.Ct:

I -h pIer detining the boundaric-s of Iend in a unshed trim of the RegrCt.. Sec Part IVJI Rc*l Property Act 1900.

2 An appie-dirrn made by a perseclarmingtale to land Ir virtuc ciadnerse pnniesnim See tart VIA Real Property Act 1900.

3. As the L)rpattmcnt of Lands nay not i-c able to prsldc the tar-trees of a Justece of the peaCe or other cjualrfh-d s.itneis the statuten) cirlitKYl shotill be sihyicnl and witncsscd price to lodgertonl at I-and end Property Information Drvlsita.

I Clii tsr

All It tdssri:irrh' tireit be in blodt cirpitals Page 2 of 2

Planning Agreement 1 21168435 1 DTS DIS 25

References

Related documents

Schedule 2: Interpretation antimicrobial product means a disinfectant or a sanitiser asbestos has the same meaning as in the Health and Safety at Work Asbestos Regulations 2016 but