NC Infrastructure deed signed

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CONTENTS

INTERPRETATION
1.4 Nature of Deed
1.2 Commencement...
1.3 Interpretation...
1.4 Definitions
1.5 Other Expressions
1.6 Rights and Obligations Council.
INFRASTRUCTURE DEED
2.1 Application of Act
2.2 Deed to bind successors in title...
APPEAL
3.1 Application of this clause ......
3.2 Proponent to Discontinue Appeal
3.3 No ObjeCtiON ou... eeetessecceeeeeees

3.4 Effect of Discontinuance

INFRASTRUCTURE CONTRIBUTION

 

 
  
 
 
 
  
 
 
 
 
 
  
 
  

 

 

 

 
 
 
 
 
 
  
 
 
 
 
 
 
 
 

441 Infrastructure Agreement overrides Development Permit .........c..cccccessssssesstecsesseccsescssesasees 9
42 Continuance of Planning Scheme Policy Infrastructure Contributions and

Infrastructure Charges
43 Contribution in lieu of off-street parking.. 9
44 Indexed Infrastructure Contribution . 9

 

4.5 Time for payment.............ccccces

4.6 Payment to Council

GOODS AND SERVICES TAX

5.1 Interpretation.............cecccecsecssessesseesssessesasenscssscuscsssnsasesessesssssecsavessesnssueanensenesuessuetsvesseessersase

5.2 Consideration GST exclusive ...
5.3 Payment of GST
5.4 Timing of GST payment..
5.5 Tax invoices
5.6 Adjustment events...
5.7 Reimbursements
5.8 Representatives
5.9 Pay As You Go (“PAYG”) ..

DEFAULT BY OWNER OR PROPONENT 1
6.1 Rights of the Council on default.
6.2 Application of money

NOVATION OF DEED UPON SALE 12

 

 

  

7A Sale of the Subject Site oo... esesesseseseesessesesssesuees 12
7.2 Owner to remain liable... wel
7.3 Release from Liability 0.0... ees eeseecsesseesvsccssecsssessessuesssecnessvesarerasesucausensecssessavarecesees 12
RECONFIGURATION OF THE SUBJECT SITE 12

 

81 Reconfiguring and compliance
8.2 Reconfiguring and non-compliance

SERVICE

 

 

 

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9.1 Service by prepaid post
9.2 Deemed service...
9.3 Proof of service...
9.4 Form of Notice

10 MISCELLANEOUS

 
 
 
 
  
 
 
 
 
 
 
 
 

 

10.1

10.2

10.3 Place for payment of monies ....
10.4 Waiver

10.5 Laches and delay....
10.6 Severance
10.7. Warranty of authority ..
10.8 Further assurances
10.9 Force Majeure
10.10 Amendment of deed

SCHEDULE 1 16
SCHEDULE 2 17

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Page 4

THIS DEED is made on the date stated in item 1.
BETWEEN The Council

AND the Proponent
AND the Owner
RECITALS

A __ The Proponent and the Owner is Cammeray Investments Pty Ltd.
B The Proponent lodged a Development Application in relation to the Subject Site.

C The Proponent has lodged a request to provide fewer on-site car parking spaces
for the development than normally required under the planning scheme.

D___ The Proponent proposes a contribution be paid for the shortfall in the number of
car parks normally required to be provided on site for the development.

E The parties agree that contributions toward infrastructure are to be paid in
i accordance with:
(i) the conditions of the Development Permit and

(ii) any infrastructure charge notice; and
(iii) the contributions in lieu of off-street parking as detailed in Schedule 2.

IT 1S AGREED
1 INTERPRETATION
1.1 Nature of Deed
This deed accords with Clause 2.
1.2 Commencement
This deed commences on the Commencement Date.
1.3 Interpretation
(a) In this deed, unless a contrary intention appears, reference to:

(i) a clause is to a clause in this deed: and

 

(ii) the singular includes the plural and vice versa; and
i (iii) any gender includes all other genders; and
| (iv) a person includes a firm, a corporation, an association and a

body, whether incorporated or not and a government or statutory
entity or authority; and

Page 4 of 19

 

Page 5

 

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(b)

(c)

(a)

e)

0)

(9)

(h)

()

(v) legislation (including subordinate legislation) includes:
(A) statutory instruments under the legislation; and

(B) consolidations, amendments, re-enactments or
replacements of the legislation; and

(vi) writing includes any mode of representing or reproducing words
in tangible and permanently visible form and includes facsimile
transmission; and

(vii) this or any other deed includes the deed as varied or replaced
and is not affected by any change in the identity of the parties;
and

(vill) aday is a Calendar Day

The clause headings appearing in this deed are inserted for
convenience of reference and do not affect the construction of the deed.

If any words are italicised or otherwise printed differently, this has been
done for convenience only and does not affect the construction of this
deed.

Whenever more persons than one constitute a party, all the covenants,
deeds, conditions, restrictions and provisos on the part of that party
contained or implied in this deed bind those persons jointly and each of
them severally.

This deed is in all respects to be interpreted in accordance with the laws
of the State of Queensland, and the parties irrevocably and
unconditionally submit to the non-exclusive jurisdiction of the courts of
that state and any courts which have jurisdiction to hear appeals from
them, and waive any right to object to proceedings being brought in
those courts.

Nothing contained in this deed affects, prejudices or derogates from the
requirements of any statute or from the rights, powers and authorities of
the Council under the provision of any statute or under any declared
policy of the Council.

An inclusive definition, or an example or particularization of a provision,
does not limit but may extend that definition or provision.

Where a word or expression is defined, other parts of speech and
grammatical forms of that word or expression have a corresponding
definition.

All schedules to this deed form part of this deed and a reference to an
item is a reference to an item in Schedule 1 unless stated otherwise.

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Page 6

 

1.4

(j) Terms used in the Special Conditions which are not otherwise defined
in Clause 1.4 (Definitions) shall have the meanings assigned to them in
the Council's Planning Scheme.

Definitions
In this deed:
“Act means the Sustainable Planning Act 2009 (the “SPA’).

“Adopted Infrastructure Charges Resolution” or “AICR” means the Noosa
Shire Council Adopted Infrastructure Charges Resolution (No.1) 2014.

“Appeal” means the appeal described in item 9.

“Calendar Day” has the meaning given in section 36 of the Acts Interpretation
Act 1954 (Qld).

“Chief Executive Officer’ means the Chief Executive Officer of the Council
and includes the person (if any) for the time being acting as Chief Executive
Officer.

“Commencement Date” means the date when this deed commences being the
date when the last party executes this deed

“Council” means the Local Government described in Schedule 1, Item 3 and
its predecessors, successors, transferees and assigns.

“Development” has the meaning given in the Act.

“Development Application” has the meaning given in the Act as it applies to
the Application and identified in item 7.

“Development Permit’ has the meaning given in the Act as it applies to the
Application and identified in item 8.

“Force Majeure” means an event:

(a) being a decree of the Commonwealth Government or the state
Government, an act of God, industrial disturbance, act of public enemy,
war, international blockade, public riot, lightning, flood, earthquake, fire,
storm or other event whether of a kind herein specified or otherwise;
and

(b) which is not within the control of the party claiming Force Majeure; and

(c) which could not have been prevented by the exercise by that person of
a standard of foresight, care and diligence consistent with that of a
prudent and competent person under the circumstances.

“Index Number’ means the Consumer Price Index - Index Numbers: All
Groups CPI for Brisbane produced by the Australian Bureau of Statistics. If the
said Index is suspended or discontinued or if different factors are used to
determine the same Index, the Index Number shall be such an Index as the

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Page 7

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Council and Owner agree reflects increases in the costs of living in Brisbane.
In default of such agreement such Index will be as determined on the
application of either party to the President of the Queensland Law Society Inc
at the relevant time, or his Nominee, acting as an expert and not as an
arbitrator and whose decision shall be conclusive.

‘Infrastructure Contribution” means:

(a) a monetary contribution or charge for trunk infrastructure that is required
as a condition of, or triggered by, the Development Permit;

(b) a land and/or works contribution that is trunk infrastructure and is
required as a condition of the Development Permit; or

(c) a monetary contribution in lieu of off-street parking as detailed in
Schedule 2.

“Local Government” has the meaning given in the Local Government Act
2009.

“Local Government Area” has the meaning given in the Local Government Act
2009.

“Lot” has the meaning in the Act.

“Notice” means any certificate, demand or notice to be made, given or served
by a party under this deed.

“Owner” of the Subject Site means the person described in item 4A.

“Planning Scheme” means the planning scheme of the Council applicable for
the Subject Site.

“Planning Scheme Policies” means the Planning Scheme Policies in respect
of Infrastructure Contributions applying generally in the Noosa Shire Council
Local Government Area over the Subject Site.

“Proponent” means the person described in and having its address at the
place described in item 4 and includes:

(a) successors and permitted assigns in the case of a corporation,
association or other body whether incorporated or not; and

(b) executors, administrators and permitted assigns in the case of a natural
person.

“Public Office” has the meaning given in the Local Government Act 2009.
“Purchaser” means the purchaser of the Subject Site from the Owner.
“Relevant Period” has the meaning given in the Act.

“Sell” includes transfer, dispose of and alienate and “Sale” has the
corresponding meaning.

“Special Conditions” means the conditions specified in item 6 with which the
Owner and Proponent must comply.

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Page 8

 

 

1.6

1.6

2.1

2.2

3.1

3.2

“Subject Site” means the land described in item 5 and includes:
(a) any interest or estate in, on, over or under the land; and

(b) the airspace above the surface of the land and any estate or interest in
the land; and

(c) the subsoil of the land and any estate or interest in the subsoil; and
(d) any part or parts of the land; and

(e) any estate or interest created in respect of any of the above matters.
“Use” has the meaning given in the Act.
Other Expressions

If a term is not defined in this Deed it shall unless the context otherwise
requires, have the meaning given to it by:

(a) the Act; or

(b) the Macquarie Dictionary in the absence of a definition in the Act.
Rights and Obligations Council

Where rights or obligations are in respect to any contributions or works those

rights shall be rights in favour of Council and those obligations shall be
obligations to Council.

INFRASTRUCTURE DEED
Application of Act
This Deed constitutes an infrastructure agreement under the Act.
Deed to bind successors in title
The Owner consents to the obligations of the Proponent under this deed being
attached to the Subject Site and being binding on the Owner and the Owner's
successors in title in accordance with Section 663 (When infrastructure
agreements bind successors in title) of the Act.
APPEAL
Application of this clause
This clause applies if item 9 is completed.
Proponent to Discontinue Appeal
Within 2 weeks of the Commencement Date, the Proponent must file and serve

all documents necessary to, or obtain the court's leave to, discontinue the
Appeal, pursuant to rule 15 of the Planning and Environment Court Rules 2010.

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3.3

3.4

41

4.2

4.3

4.4

No objection

The parties to this deed must not object or make an application about the
discontinuance of the Appeal.

Effect of Discontinuance

The provisions of clause4 of this deed only take effect when the
discontinuance of the Appeal takes effect.

INFRASTRUCTURE CONTRIBUTION
Infrastructure Agreement overrides Development Permit

This deed applies to the extent of any inconsistency with the Development
Permit.

Continuance of Planning Scheme Policy Infrastructure Contributions and
Infrastructure Charges

The Owner is required to comply with the infrastructure contribution conditions
of the Development Permit and infrastructure charges issued for the
development.
Contribution in lieu of off-street parking
The Owner must pay the Council the greater of:
(a) the amount identified in Schedule 2 of this Deed; or
(b) the amount calculated in accordance with the formula in clause 4.4.
Indexed Infrastructure Contribution

The Infrastructure Contribution payable, identified in Schedule 2, shail be
indexed in accordance with the following formula:-

A=BxC
D

Where A= the Indexed Infrastructure Contribution amount at the time the
payment is made.

Where B = the Infrastructure Contribution identified in Schedule 2.

Where C = the Index Number for the quarter immediately preceding the date
upon which the Infrastructure Contribution is being paid; and

Where D = the Index Number for the December quarter 2014.

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4.5

4.6

5.1

5.2

6.3

5.4

Time for payment

The Infrastructure Contribution is payable before the day stated in Schedule 2,
or if no day is specified in Schedule 2:

(a) if the contribution applies to reconfiguring a lot that is assessable
development or development requiring compliance assessment—before
the local government approves the plan of subdivision for the
reconfiguration; or

(b) if the contribution applies to building work that is assessable
development or development requiring compliance assessment—before
the certificate of classification for the building work is issued; or

(c) if the contribution applies to a material change of use—before the
change of use happens.

Payment to Council

The Contribution in lieu of off-street parking shall be paid to Council unless the
Owner is directed in writing by Council to pay it otherwise.

GOODS AND SERVICES TAX
Interpretation

In this clause:

(a) expressions which are not defined but which have a defined meaning
in GST Law have the same meaning as in the GST Law.

(b) “GST Law’ has the meaning given to that expression in A New Tax
System (Goods and Services Tax) Act 1999.

(¢) “GST Amount” means the amount referred to in clause 5.3 (Payment
of GST).

Consideration GST exclusive

Unless otherwise expressly stated, all prices or other sums payable or
consideration to be provided under this Deed are exclusive of GST.

Payment of GST
If GST is payable by a supplier on any supply made under this Deed, the
recipient will pay to the supplier an amount equal to the GST payable on the
supply.

Timing of GST payment

The GST Amount will be paid by the recipient on the same date the
consideration for the supply is to be provided under this Deed.

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5.5

5.6

5.7

5.8

 

6.1

 

Tax invoices

The recipient is not required to pay the GST Amount until the supplier has
provided the recipient with a tax invoice in respect of the taxable supply. If the
supplier has not provided the recipient with a tax invoice prior to the time that
the GST Amount is otherwise payable under this clause, the recipient must pay
the GST Amount within five days of the receipt of the tax invoice.

Adjustment events

If at any time an adjustment event arises in respect of a taxable supply made
by a supplier under this Deed the supplier will provide the recipient with an
adjustment note for the adjustment immediately upon becoming aware of the
adjustment. Where such an adjustment event arises, a corresponding
adjustment will be made to the GST Amount and a payment will be made by
the recipient to the supplier or the supplier to the recipient as the case requires.

Reimbursements

Where a party is required under this Deed to pay for or reimburse an expense
or outgoing of another party, the amount to be paid by the first party is the sum
of:

(a) the amount of the expense or outgoing less any input tax credits in
respect of the expense or outgoing that the other party is entitled to; and

(b) if the payment by the first party is consideration for a taxable supply, an
amount equal to the GST payable by the other party in respect of the
payment.

Representatives

In the event that liability for payment of GST in respect of a supply under this
Deed is imposed upon a representative of a supplier, this Clause 5 (Goods and
Services tax) shall nonetheless apply and any amounts to be calculated
pursuant to this clause shall be calculated in all respects as if the supplier was
liable for the GST imposed on such supply and entitled to input tax credits
properly allocated to the making of that supply.

Pay As You Go (“PAYG”)
PAYG instalments will be deducted from payments to be made to the Claimant
if at the time of payment the Claimant has not provided to the Council a valid
Australian Business Number or if the Council otherwise reasonably forms the
view that deductions are required to be made under Par 2-5 of the Taxation
Administration Act 1953.
DEFAULT BY OWNER OR PROPONENT

Rights of the Council on default

If the Proponent or Owner fails to duly perform and fulfil any or all of its
obligations under Clause 4 the Council may recover from the Owner in respect

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6.2

7.1

7.2

7.3

to Clause 4.3 the whole amount of the payment of contributions (if any) not paid
by the Proponent or Owner.

Application of money

The Council may apply any sum recovered or received by it pursuant to Clause
6.1 (rights of the council on default) as far as the sum may extend to or towards
all or any one or more of the following:

(a) reduction or discharge of the payments or contribution payable by the
Proponent or Owner under this Deed; and

{b) reimbursing itself for the cost of works done and for any damages
suffered by it.

NOVATION OF DEED UPON SALE
Sale of the Subject Site

The Owner and any future owner must not sell or transfer the Subject Site prior
to the performance and fulfilment of the Special Conditions in item 6 except
subject to the condition that the purchaser (in this clause called “the
Purchaser’) shall enter into a deed of novation of this Deed or a replacement
Deed with the Council, whereby the Purchaser becomes contractually bound to
the Council to perform and comply with the Special Conditions, or such of them
as remain unperformed or unfulfilled by the Owner at the time of such sale.

Owner to remain liable

In the event that the Owner sells or transfers the Subject Site otherwise than in
compliance with Clause 7.1 the Owner must perform and fulfil the Special
Conditions at such time or times as the Council stipulates, even if the time or
times otherwise appointed for such performance and fulfilment have not then
arrived.

Release from Liability

In the event that the Purchaser enters into a deed of novation or such further
deed or agreement which contractually obliges the Purchaser to the Council to
perform the Covenants, the Owner shall be forever released from the Special
Conditions or any further liability pursuant to this Deed or otherwise arising
from its subject matter and the provisions of this clause may be pleaded as a
bar to any proceedings brought by the Council.

RECONFIGURATION OF THE SUBJECT SITE

Reconfiguring and compliance
If the Subject Site is reconfigured under the provisions of the SPA and the
obligations under clause 4.3 and the Special Conditions of this deed have been

Satisfied, then this deed no longer remains attached to the reconfigured lots
and the Owners of the reconfigured lots are not bound by this deed.

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8.2

9.2

9.3

9.4

10
10.1
(a)

10.2

10.3

Reconfiguring and non-compliance

If the Subject Site is reconfigured to create a lot comprising the Subject Site or
part of the Subject Site and the obligations under clause 4.3 and the Special
Conditions of this deed have not been satisfied, this deed remains attached to
the reconfigured lot and the Owner of the reconfigured lot remains bound by
this deed.

SERVICE

Service by prepaid post
A Notice is sufficiently made, given or served by a party if left at or forwarded
by prepaid post in an envelope addressed to the other party or any of them
(where there are more persons than one person comprising the other party) at
the address of that party specified in Schedule 1.

Deemed service
A Notice if sent by prepaid post is deemed to have been made, given or served
at the time when in the due course of the post it would be delivered at the
address to which it is directed whether or not it is actually received.

Proof of service
In proving service of a Notice made, given or served by the Council it is only
necessary for the Council to certify to that effect under the hand of the Chief
Executive Officer.

Form of Notice

(a) A Notice given by a party must be in writing and signed by the party.

(b) A Notice given by a party may be signed by an officer of that party or
the solicitor for that party.

(c) A party receiving a Notice is not obliged to enquire as to the authority of
the person signing the Notice.

MISCELLANEOUS

Payment of costs
Each party shall pay their own costs, charges and expenses of and incidental to
the negotiation, preparation, execution, completion and stamping of this Deed,
all counterparts of it and any other document required under this Deed.

Time
Time is, in all cases, of the essence.

Place for payment of monies

All monies payable to a party under this deed are payable free from all
deductions at the address of that party specified in Schedule 1.

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10.4

10.5

10.6

10.7

10.8

10.9

Waiver

No waiver by the Council of any breach by the Proponent or Owner of any of
the provisions of this Deed shall be implied against the Council or be otherwise
effective unless it is in writing under the hand of the Chief Executive Officer.

Laches and delay

No laches or delay by the Council at any time or times in enforcing any of its
rights, powers and the like under this Deed prejudice or affect those rights or
powers.

Severance

If any provision of this Deed cannot be given effect or full force and effect by
reason of statutory invalidity that provision shall be served or read down but so
as to maintain and uphold so far as possible the remaining provisions of this
deed.

Warranty of authority
Any person signing this Deed:

(a) as attorney of any party warrants to the other parties that at the date of
execution that person has not received any notice or information of the
revocation of the power of attorney appointing that persons; and

(b) as an authorised officer, agent or trustee of any party warrants to the
other parties that at the date of execution that person has full authority
to execute this deed in that capacity.

Further assurances

Each party agrees at its cost to do everything reasonably necessary to give
effect to this deed.

Force Majeure

(a) If a party is unable by reason of an event of Force Majeure to carry out
its obligations under this Deed, that party must give a Notice to the
other party advising of the event of the Force Majeure as soon as it is
reasonably practicable after the event of a Force Majeure.

(b) If a party gives a Notice advising of an event of Force Majeure, that
party's obligations will be suspended during the period for which the
event of Force Majeure or its effect extends.

(c) Where the obligations of the Council are dependent upon the
occurrence of specified circumstances, then the Council will be relieved
of its obligations for so long as there is a change or deviation or non-
occurrence of those circumstances arising from a matter beyond the
Council’s Control.

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10.10

Amendment of deed

(a)
(b)

Despite any provision of this deed, the parties may at any time agree to

vary the terms of this Deed

No modification, variation or amendment of this Deed is of any force or

effect unless:

(i) _ it is in the form of an amendment Deed and has been signed by
the parties; and

(ii) where relevant the amendment Deed complies with the
requirements of the Act.

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SCHEDULE 2

Contribution in lieu of off-street parking

The Contributions in lieu of off-street parking are detailed in Table 1 Contributions in lieu
of off-street parking.

 

 

Table. 1. Contributions in lieu of off-street parking

 

 

 

 

 

"INFRASTRUCTURE CONTRIBUTION

   

7 Amount Payable

 

 
 

| Current at CPI: December 2014

 

Contribution in lieu of off-street parking for 6 car park spaces $135,732.00

 

 

: TOTAL: =
(Subject to indexation applicable at date of payment) $135,732.00

 

 

PAYMENT OF THE INFRASTRUCTURE CONTRIBUTION

iii.
iv.

Vv.

The financial contribution is payable in accordance with this Infrastructure
Agreement.

The due date for payment of the financial contribution is: before the change of
use happens

The contribution is to be paid to Noosa Council.

Payment of infrastructure contributions by credit card transaction will not be
accepted.

Please contact Council directly via telephone on: (07) 5329 6211 or 5329 6449

during office hours or alternatively via email: [email protected] a minimum of
5 business days prior to payment of the infrastructure contributions for the current
indexed amounts applicable at the time of payment.

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Page 17

 

EXECUTED AS A DEED.
This deed dated this day of 2014
BETWEEN NOOSA SHIRE COUNCIL a Local Government duly constituted under

the provisions of the Local Government Act 2009
(“Council”)

AND CAMMERAY INVESTMENTS PTY LTD ACN 010105816
(‘the Proponent” and “the Owner”)

SIGNED SEALED AND DELIVERED by the delegated officer )
for and on behalf of the NOOSA SHIRE COUNCIL: )
Ghia) ceeeeeeeeeeseeaeacaeeaaesaaaaaeeeeeeeeeees
(Signature) deeeeeeeseceeeeesuaseaaauaeeeeeeeeees
oat 5 ceeeeeneeeeseeesccueaaueeeneeeecseeeeeeeees

In the presence of Witness being a Justice of the Peace: )

(Signature)

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Page 18

 

“the Proponent & Owner’

Executed by CAMMERAY INVESTMENTS PTY LTD ACN 010105816
In accordance with Section 127 of the Corporations Act 2001:

 

In the presence of Witness being a Justice of the Peace: )

Justine RAE Coats

 

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