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132001.210127.3 - Change To Development Approval - Changing Shared Rooms To Single Rooms - Ozcare - 100 Cooyar Street, Noosa Heads · Attachment 3 - 132001.210127.3 - Infrastructure Agreement

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  ATTACHMENT 3 - 132001.210127.3 - INFRASTRURE AGREEMENT




                 NOOSA SHIRE COUNCIL



                 OZCARE ACN 072 422 925




INFRASTRUCTURE DEED IN RESPECT OF CONSTRUCTION OF ACCESS
TRACK CROSSING, MAINTENANCE OF VEGETATION BUFFER ZONE AND
ACCESS TRACK (INCLUDING CROSSING) FOR THE GIRAWEEN NATURE
            REFUGE AND THE AGED CARE FACILITY


            DEVELOPMENT PERMIT: 132001.210127.3




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CONTENTS
1.   INTERPRETATION                                                                                                 4
     1.1  Nature of Deed...................................................................................... 4
     1.2  Commencement.................................................................................... 4
     1.3  Interpretation ......................................................................................... 4
     1.4  Definitions ............................................................................................. 5
     1.5  Other Expressions ................................................................................ 6
     1.6  Rights and Obligations .......................................................................... 6
2.   INFRASTRUCTURE DEED                                                                                       6
     2.1  Application of Act ..................................................................................6
     2.2  Warranty of Ownership ......................................................................... 6
     2.3  Deed to bind successors in title............................................................. 6
     2.4  Deed conditional upon approval of Development Application ................ 6
3.   INFRASTRUCTURE CONTRIBUTION                                                                           7
     3.1  Infrastructure Agreement overrides Development Permit ...................... 7
     3.2  Infrastructure Contribution..................................................................... 7
4.   GOODS AND SERVICES TAX                                                                                         8
5.   DEFAULT BY OWNER OR APPLICANT                                                                           8
     5.1  Rights of the Council on default ............................................................ 8
     5.2  Application of money ............................................................................. 8
6.   RECONFIGURATION OF THE SUBJECT SITE                                                             8
     6.1 Reconfiguring and compliance .............................................................. 8
     6.2  Reconfiguring and non-compliance ....................................................... 8
7.   SERVICE                                                                                                     8
     7.1  Service by prepaid post......................................................................... 8
     7.2  Deemed service .................................................................................... 8
     7.3  Proof of service ..................................................................................... 8
     7.4  Form of Notice ...................................................................................... 9
8.   MISCELLANEOUS                                                                                                   9
     8.1  Payment of costs .................................................................................. 9
     8.2  Time...................................................................................................... 9
     8.3  Place for payment of monies ................................................................. 9
     8.4  Waiver................................................................................................... 9
     8.5  Laches and delay .................................................................................. 9
     8.6  Severance............................................................................................. 9
     8.7  Warranty of authority ............................................................................. 9
     8.8  Further assurances ............................................................................. 1 O
     8.9  Amendment of deed ............................................................................ 10
SCHEDULE 1                                                                                                        11
EXECUTED AS A DEED                                                                                                12




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Page 3

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

BETWEEN The Council

AND            the Owner

RECITALS

A       The owner has obtained various approvals (216575 DA / 132001.210127.3) in order
        to construct and operate an aged care facility on the Subject Site.

B       The owner has also obtained approvals (RM2022/09056 dated 7 June 2022 and
        RM2020/53583 dated 7 October 2020) and carried out initial works for the clearing of
        vegetation for a buffer zone for fire mitigation and access track upgrades on the
        Council Land.

C       The owner has agreed to undertake the following on the Council Land for the period
        that the aged care facility is being operated on the Subject Site and on the terms set
        out in this deed:

        (i)         construct the access track and causeway crossings / stormwater discharge
                    points upgrades on the Council Land generally in accordance with drawings
                    General Arrangement Plan STP220347 C102 A dated Jan 2023, Stormwater
                    Layout STP22-0347 SKO1 dated 21.03.23, Earthworks / Track Layout
                    STP22-0347 SKO3 dated 23.03.23, Causeway Crossing 1 STP22-0347
                    SKO5 dated 03.05.23, and Causeway Crossing 2 STP22-0347 SKO6 dated
                    03.05.23, prepared by STP Consultants;

        (ii)        maintain the access track and causeway crossings / stormwater discharge
                    points on the Council Land a minimum of:

                    (A)     Fire trail (including the track, causeway crossings and stormwater
                            discharge): every 3 months

                    (8)     Fuel Reduction Zone (FRZ): every 3 years

                    (C)     Slashing/mowing: every 3 months

        (iii)       maintain the vegetation buffer zone along the north-eastern and south­
                    eastern boundary of the Subject Site on the Council Land, refer to
                    RM2022/09056 dated 7 June 2022 and see also RM2020/53583 dated 7
                    October 2020:

                    (A)     north-eastern boundary: maximum total width of 20m comprising
                            15m as a fire access trail / fuel free zone width and 5m fuel
                            reduction zone width;

                    (8)     south-eastern boundary: maximum total width of 15m comprising a
                            15m fuel free zone width.

        (iv)        obtain the necessary owners' consent and subsequent approvals (e.g.
                    Operational Works) prior to accessing and undertaking works on the Council
                    Land.




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Page 4

      (v)      prepare a Maintenance Plan and Construction Management Plan for the
               works being undertaken on the Council Land to be approved by Council prior
               to the commencement of works.

IT IS 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

               (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

               (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

               (viii)   a day is a Calendar Day

      (b)      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.

      (c)      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.


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Page 5

      (d)      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.

      (e)      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.

      (f)      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.

1.4   Definitions

      In this deed:

      "Act" means the Planning Act 2016 (the "Act').

      "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 Item 3 of Schedule 1 and its
      predecessors, successors, transferees and assigns.

      "Council Land" means the land described in item 7 of Schedule 1.

      "development" has the meaning given in the Act.

      "Infrastructure Contribution" mean the maintenance contribution required under
      clause 3.2.

      "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 given in the Act.

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

      "owner" has the meaning given in the Act and is the person described in item 4 of
      Schedule 1 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.




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Page 6

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

      "Special Conditions" means the conditions specified in item 6 of Schedule 1 with
      which the Owner must comply.

      "Subject Site" means the land described in item 5 of Schedule 1 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.

1.5   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.

1.6   Rights and Obligations

      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.

2.    INFRASTRUCTURE DEED

2.1   Application of Act

      This Deed constitutes an infrastructure agreement under the Act.

2.2   Warranty of Ownership

      The owner warrants that, at the time of signing this agreement, it is the owner of the
      land.

2.3   Deed to bind successors in title

      The owner consents to the obligations under this Deed being attached to the Subject
      Site and binding on the owner and the owner's successors in title in accordance with
      Section 155 (When infrastructure agreements bind successors in title) of the Act.

2.4   Deed conditional upon approval of Development Application




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      This Deed is conditional upon the approval of the owner's request for a minor change
      in respect of the development on the Subject Site.

3.    INFRASTRUCTURE CONTRIBUTION

3.1   Infrastructure Agreement overrides Development Permit

      This Deed applies to the extent of any inconsistency with any development permit
      and the Infrastructure Contribution payable hereunder is in addition to any conditions
      of, or payments required by, any development permit and/or any infrastructure
      charges notice given in respect of the development.

3.2   Infrastructure Contribution

      On and from satisfaction of clause 2.4, but only while the aged care facility is being
      operated on the Subject Site, the owner must at its cost:

      (i)      construct the access track and causeway crossings / stormwater discharge
               points upgrades on the Council Land generally in acco_rdance with drawings
               General Arrangement Plan STP220347 C102 A dated Jan 2023, Stormwater
               Layout STP22-0347 SKO1 dated 21.03.23, Earthworks / Track Layout
               STP22-0347 SKO3 dated 23.03.23, Causeway Crossing 1 STP22-0347
               SKO5 dated 03.05.23, and Causeway Crossing 2 STP22-0347 SKO6 dated
               03.05.23 prepared by STP Consultants;

      (ii)     maintain the access track and causeway crossings / stormwater discharge
               points on the Council Land a minimum of:

               (A)      Fire trail (including the track, causeway crossings and stormwater
                        discharge): every 3 months

               (B)     Fuel Reduction Zone (FRZ): every 3 years

               (C)      Slashing/mowing: every 3 months

      (iii)    maintain the vegetation buffer zone along the north-eastern and south­
               eastern boundary of the Subject Site on the Council Land, refer to
               RM2022/09056 dated 7 June 2022 and see also RM2020/53583 dated 7
               October 2020:

               (A)     north-eastern boundary: maximum total width of 20m comprising
                       15m as a fire access trail / fuel free zone width and 5m fuel
                       reduction zone width;

               (B)     south-eastern boundary: maximum total width of 15m comprising a
                       15m fuel free zone width.

      (iv)    obtain the necessary owners' consent and subsequent approvals (e.g.
              Operational Works) prior to accessing and undertaking works on the Council
              Land.

      (v)     prepare a Maintenance Plan and Construction Management Plan for the
              works being undertaken on the Council Land to be approved by Council prior
              to the commencement of works.




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Page 8

4.     GOODS AND SERVICES TAX

       The federal government has determined that rates and utility charges levied by local
       government will be GST free. Accordingly, no component for GST is included in this
       Infrastructure Contribution.

5.     DEFAULT BY OWNER OR APPLICANT

5.1    Rights of the Council on default

       If the owner fails to duly perform and fulfil any or all of its obligations under Clause 3
       the Council may recover from the applicant the whole or any amount of the
       Infrastructure Contribution not paid and its costs of recovery.

5.2    Application of money

        The Council may apply any sum recovered or received by it pursuant to Clause 5.1
        (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 amount payable by the owner under this Deed;
             and
       (b)   reimbursing itself for the cost of works done and/ or for any damages or costs
             suffered by it as a consequence of such non payment.

6.     RECONFIGURATION OF THE SUBJECT SITE

6.1    Reconfiguring and compliance

       If the Subject Site is reconfigured under the provisions of the Act and the obligations
       under this Deed have been satisfied, then this Deed no longer remains attached to
       the reconfigured lots and the owner's successors in title are not bound by this deed.

6.2    Reconfiguring and non-compliance

       If the Subject Site is reconfigured under the provisions of the Act and the obligations
       under this Deed have not been satisfied, this Deed remains attached to the
       reconfigured lots and the owner's successors in title remain bound by this deed.

7.     SERVICE

7.1    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.

7.2    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.

7.3    Proof of service



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Page 9

       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.

7.4    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.

8.     MISCELLANEOUS

8.1    Payment of costs

       The owner shall pay the Council's legal costs of and incidental to the preparation and
       execution of this Deed on a solicitor own client basis.

8.2    Time

       Time is, in all cases, of the essence.

8.3    Place for payment of monies

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

8.4    Waiver

       No waiver by the Council of any breach by the 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.

8.5    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.

8.6    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 severed or read down but so as to
       maintain and uphold so far as possible the remaining provisions of this deed.

8. 7   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




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      (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.

8.8   Further assurances

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

8.9   Amendment of deed

      (a)     Despite any provision of this Deed, the parties may at any time agree to vary
              the terms of this Deed

      (b)     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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Page 11

SCHEDULE 1
Deed Details

 ITEM 1        Date                      The Commencement Date

 ITEM2         Name of Deed              Infrastructure  Deed    in   respect    of
                                         construction of access track crossing,
                                         maintenance of vegetation buffer zone and
                                         access track (including crossing) for the
                                         Giraween nature refuge and the aged care
                                         facility

 ITEM 3        Council                   Noosa Shire Council
                                         9 Pelican Street, Tewantin in the State of
                                         Queensland
                                         PO Box 141, Tewantin OLD 4565

 ITEM4         owner                     Ozcare
                                         ACN 072 422 925
                                         66 River Terrace
                                         Kangaroo Point OLD 4169
 ITEM 5        Subject Site              Lot 9 on RP225312, title reference 17299066

ITEM6          Special Conditions        nil
ITEM7          Council Land              Lot 1 on SP239726, title reference 50928874
ITEMS          DevelopmentApplication    132001.210127.3     -   Minor   Change   to
               and Permit                Existing Approval




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Page 12

EXECUTED AS A DEED
This deed dated this        day of                                       2023


BETWEEN         NOOSA SHIRE COUNCIL a Local Government duly constituted under the
provisions of the Local Government Act 2009
("Council")

AND OZCARE ACN 072 422 925
("the owner")




 SIGNED SEALED AND DELIVERED by the )
 delegated officer for and on behalf of the ) ------············································--
 NOOSA SHIRE COUNCIL                        ) Signature
                                            )
                                            ) Name
                                            )
                                            ) __________
                                            ) Dated



 EXECUTED by the Owner OZCARE ACN 072 )
 422 925 by its authorised signatory: )
                                      )
                                      )
                                      )
                                      )  \)1N.ull£. t\.\l\�ne-__l)Av1!:)___
                                      ) Name of Authorised Signatory
                                      )
                                      )             w,     \ 'c / oS-[   3
                                      ) Date




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