Attachment 2 - Infrastructure Agreement NSBC (Lot 2 SP110885) dated 3rd October 2003

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CONTENTS

INTERPRETATION ....ccscssscsssssssssssestensetessstsssssssnsstnasssssnsetsnsstssasesssnsisesuenssitseesecce 4
11 NAM seessssssescsesssseeesssececcssssssnsnessnsssesnsssseassssseesansstsnssssseneutansssesesesssnisunneeeseee! 4
1.2 Commencement ...ccsccsesssiessstessinetusessstsniustinssiinnunttiinnisssec 4
1.3-  Termination......... 4
14 Interpretation... +4
1.5 Definitions........ sheseeesseeeeees 6
1.6 Other Expressions .........ccscssssssccssssssssssseessesesssnsseessssssssstseecceeseeeecce id
1.7 When Development Approvals Take Effect .........sssssccsssssssssssssscssssssesssesssssssssessece 10-
INFRASTRUCTURE AGREEMENT ........sssssssssssssssssssssesenseissstssusssssusteseeuteseeceeccce, 10
OBLIGATIONS OF PARTIES seseseasseseesnssescssconecessusssesesnssessessesieaesesstessssecenecesscassecsesescanecass 10
3.1

3.2

3.3

OPEN SPACE .wssccssstsseseacsee sesstssustneenstntntsetstsesastnstetntastietisitiranestuseseese 110

4.1 OSA and OSB (Open Space Areas A and B) ceeseessessssssseessecscsesssecssecscsssssveseneessasess
4.2 Deemed Contribution to Community Infrastructure — Public Open Space vee
4.3 Deemed Contribution to Community Infrastructure — Private Open Space ...

4.4 Future Conditions/Infrastructure Charges
4.5 Future Buffers to Open Space Areas

  
  
  
 
 

DRAINAGE/WATERWAY MANAGEMENT............ loecessseseceensneesnaesssseeserenseatseneseasecsenses ll

5.1 External Stormwater Works........ssssssssssssesssssussssersssssssssessessssssspusssseneeeseeeseseecce 11

EXTERNAL ROADWORKS

6.1
6.2
6.3
6.4
6.5
6.6

 

7A Infrastructure within the Proposed Development .........:ccscscssessssssesccoseeccessess..
7.2 Infrastructure External to the Proposed Development.

 

CONDITIONS PRECEDENT setaeeseneneneessssesesconcatsseseseecssssasssesusassesusssssssnsacaesuasassssscavaseanence 16
8.1 Conditional Upon Approval of Development Application.
8.2 Infrastructure Agreement Terminates .-.ccccccsssssssescssssssss...
8.3 Conditional Upon Applicant Becoming Owner of Land... .
8.4 Failure to Complete Contract.........sssssssssssssssusssssssssnttitiisssssesssssecccce, 17

  

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CONDITIONS — SUBSEQUENT uesssssssssssssssscsssssssssssssssssssetsesesserssesssssnse Foassnenessesaseeeenenes 17

 

 

 

 
 
 
 
 

9
9.1 Lapse or Cancellation of Permit .......sssssssssssessssssssssssssssscessecessssesssusevssutsesscssssecess 17
10 FUTURE STAGES OF SHIRE BUSINESS CENTRE. ....sssecssssssscscssssssesesurtsscscssoscccccssss 17
10.1 Description of Stage 1 and Future StAQeS ....ecssessessseseecsecsesssesssecssecsssssusessessseraeesass 17
10.2 Intent re Stage 1 and Future Stages......ccsscssssssssssssssscescsssssssssstssssssssssseeeeeeeecececcc 17
10.3 Extent of Immunity of Future Stages of the Shire Business Centre on the Land
from Infrastructure Conditions/Charges .....sscssssscscssssesssssesesesessssssessssssessssseeseessc 17
10.4 Future Stages Not Immune From Urban Water Cycle and Sewerage Headworks
Contributions/Charges .......scccccsssssssssssessssssssssnuesessrsnusessssassesessssssstasteseeceeeseeeececcec 18
10.5 Future Stages of the Shire Business Centre not on the Land as contemplated by
Master Plan 2 ......scsssssssssstsseccessssssssssssesssssssvssesteseseasuseessssssssssssussesssssnsesecssssssesesses 18
11 GST oaeeecssseccsssssscssscccnsssnesssssnssecessesnmusssssssssssnssssesssssssssssueseenssusssssssuuussssssssssesiessesseseesseececc 18
11.1 Definitions... ececccsssscsssessseecsesseesseeeee
11.2 Payment of GST
12 NOVATION OF DEED UPON SALE .ue.ccssscsssssssssssssssssssssssssessntsntsssussssssssssessssessesseseseussses 20
12.1. Restriction on the right to Sell the Land ...scssssssssssusnsenteeeteeeeeeccccc.
12.2. Applicant Remains Liable Until Purchaser Signs.. see
12.3 Restriction not to apply to subdivided Lots stessencaeeseeneaseacsassaeensesessseesessseneenstesseaeese
13 SERVICE ....sssescsssssssssecssssssssssessssneseesssssssssesssnsssssssssssvssssssussassaseessussssussusscssasssessssssssessesseces 20
13.1 Service by prepaid post... seseeneseneesenseceesssesssseassesssecsessseseseececsssssesseesecess 20
13.2 Service by post............
13.3 Proof of service
13.4 Form Of Notice ......cccccscsssssssssessssessssessessessecssecssssrsescesseverceecescess
14 MISCELLANEOUS ........ seesesacsssvseneasensnsensueseseesenssnssessssearessecsacsssescatsesscsesscaraesecsesersesstecasee ZL
14.1 Payment of COStS os sseccscsssssnssssecccsssssssssssscccsssssuveesssssssessssssssssscssssssssssereeesesssene 21.
14.20 THM oe eecseseesseestesesseeceeees we 2l .
14.3. Place for payment of monies.. 21
V4 A Waivers. eeccesssscssseessssescssssssssssssecessesassessssusessuessssceses 21
14.5 Laches and delay ...u.cecccegessessssssssesccsessvesssssesssecsssessseees 2]
14.6 Power of entry... 21
14,7 Severance .....ssecsseessscnessssssssesccsssnleccssssssssssssssssessssssesssusssstessessssitessssssteescsssseeceeceece 22
(14.8 — Warranty of authority........cessssssssssssssscccssssssssssssssssseseesssssssssssssssscssesseceesesecseessses 22
14.9 — Further assurances... we 2d
14.10 Force Majeure .............. wi dd
14.11 Amendment of document......sccsccssssssssssssssssconssssssssssssessssstsssesessssssseeveececceesseeeeece 23
Annexure 1 — Decision Notice DA 22803 dated 18 August 2003 .... ees ceeccecccccceseseceseesenece 25
Annexure 2 — Plan of Open Space Areas.........c..cccccsscscsessesssesecessesessesssecceseseeceececee cece 26

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Annexure 4 ~ Funding responsibilities for Walter Hay Drive ........ 0c eeeceeeeeeee Veteeeeeteneenaes 28

Annexure 5 ~ Master Plan 2 endorsed 10 April 2003.00... ccc eccssscesscessecesetsecatceeeeesees 29
Annexure 6 ~ Plan showing Public Road required from the Land for Walter Hay Drive ......... 30
SCHEDULE 1 - AGREEMENT DETAILS 24

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THIS AGREEMENT is made on the date stated in item 1 of Schedule 1.

BETWEEN The Council

AND

The Applicant

RECITALS

A

The Land is part of an area designated for the Shire Business Centre under the Strategic
Plan.

The Applicant has contracted to.purchase the Land.

The Council has issued to the Applicant a decision notice approving a development permit

_ for a material change in use over part of the Land for the purpose of Stage 1 of the Shire

Business Centre.

The Council and the Applicant wish to enter into an agreement about Development
Infrastructure Items to be provided or funded by the Applicant pursuant to the provisions.
of Chapter 5 of the Integrated Planning Act 1997 Part 2 — Infrastructure Agreements.

’

IT IS AGREED

1

1.1

1.2

1.3

1.4

INTERPRETATION
Name

This.document may be referred to in accordance with item 2.
Commencement

This document commences on the Commencement Date.
Termination

This document ceases to have effect, subject to clauses 8 and 9:

a. . one year after the expiry of development on the land in accordance with MP2 has
been achieved; or .

b. ona date upon which the parties agree in writing.
whichever first occurs.
Interpretation
a. In this document, unless a contrary intention appears, reference to:
@ a clause is to a clause in this document; and

(i) _ the singular includes the plural and vice versa; and

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(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 body or authority; and

(v) legislation (including subordinate legislation) includes:
(A) _ statutory instruments made 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 document includes the document as varied or replaced and is
not affected by any change in the identity of the parties.

. The clause headings appearing in this document are inserted for convenience of

reference and do not affect the construction of this document.

. If any. words are italicised or otherwise printed differently, this has been done for

convenience only and does not affect the construction of this document.

. Whenever more persons than one constitute a party all the covenants, agreements,

conditions, restrictions and provisos on the part of that party contained or implied in
this document bind those persons jointly and each of them severally.

. This document 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 document affects, prejudices or derogates from the
requirements of any statute or from the rights, powers and authorities of the Council
under the provisions of any statute or under any declared policy of the Council.

. An inclusive definition, or an example or particularisation 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 document form part of this document, and a reference to an item
is a reference to an item in Schedule 1.

Terms used in the Conditions of Approval which are not otherwise defined in the
Conditions of Approval or in Clause 1.5 (Definitions) shall have the meanings
assigned to them in the Planning Scheme.

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Definitions

In this document:

“Act” means the Integrated Planning Act 1997 and includes the Local Government
(Planning .and Environment) Act 1990 and the Local Government (Planning &
Environment) Regulation 1991 to the extent. that they are relevant to the Development
Application, the Conditions of Approval and the Proposed Development by operation of
the Integrated Planning Act 1997 or the Acts Interpretation Act 1954.

“Agreement” means this Infrastructure Agreement and that term is interchangeable with
the term “document” wherever used

“Appeal” means an appeal to the Court under the Act.

“Applicant” 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;

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

c. any person who enters into a Deed of Novation with the Council in respect of this
Agreement.

“Approved Plan of Development” means:
a. the plans referred to in the Conditions of Approval; or

b. in the absence of plans referred to in the Conditions of Approval, the plans submitted
with the Development Application to which: the Conditions of Approval relate.

“Authority” means all authorities or instrumentalities (other than the Council), which have
jurisdiction over the Works. .

“Building” has the meaning given in the Act.

“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 of the Council.

“Commencement Date” means the date stated. in item 1.

“Conditions of Approval” means the conditions (if any) imposed by the Council and
contained in the Decision Notice issued by the Council in respect of the Development
Application, and as varied by the Court in the event of an appeal against the Council’s
decision in respect of the Application.

“Council” means the Local Government described in item 3.
“Council's Agents” includes the Council's members, officers, agents, servants, employees,

contractors and subcontractors, and agents and-servants of the Council's contractors and
subcontractors.

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“Court” means the Planning and Environment Court and in the event of an appeal against
a decision of the Planning and Environment Court includes the Court of Appeal of the
Supréme Court of Queensland and the High Court of Australia in the circumstances of
applications for leave to appeal and appeals to those Courts. :

“Decision Notice” means the negotiated decision notice 22803 DA dated 18 August 2003
issued to the Applicant by Noosa Council on 21 August 2003 in respect of Stage 1 of the
_Shire Business Centre, a copy of which is Annexure 1.

“Demaining Agreement” means an agreement dated 20 April 2001 (as varied by the
parties from time to time), between the Main Roads Department and Noosa Council, which
includes funding arrangements for the Walter Hay Drive Construction and-the construction
of Eenie Creek Road Stage 2.

“Department” means the government department or public sector unit which administers
the Act, unless its use is in the context of the Main Roads Department.

“Development” has meaning given in the Act.

“Development Application” means the application made under the Act by the Applicant
to the Council described in item 6. :

“Development Approval” has the meaning given in the Act.

“Development Infrastructure Item” has the meaning given in the Act.
“Development Permit” has the meaning given in the Act. .
“Do” in relation to Works includes carry out, provide, perform and undertake.

“Eenie Creek Road Stage 1” means Eenie Creék Road between its intersections with
Eumundi-Noosa Road and Reef Street, inclusive of its connections to these intersections.

“Eenie Creek Road Stage 2” means Eenie Creek Road between Reef Street and its
intersection with Cooyar Street via Langura Street.

“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

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.

“Future Stage” means any subsequent development of the Shire Business Centre.

“Infrastructure Charges” has the meaning given in the Act.

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“The Land” means the land described in item 5 and includes:
a. any estate or interest 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
¢, 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.
“Local Government” has the meaning given in the Local Government Act 1993

“Lot” has the meaning given in the Act.

“Main Roads Department” means the government department or public sector unit
responsible to the Minister for Transport and Minister for Main Roads.

“Manager” means the officer of the Council who heads the directorate or section of the

Council having responsibility for the subject matter in relation to which the term is used: -

and includes the officer (if any) for the time being acting as the head of that directorate or
section of the Council. ’

“Master Plan 2” means The Shire Business Centre Master Plan: Stage 2 (MP2) adopted
by the Council on 10 April 2003 a true copy of which is contained in Annexure 5.

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

‘

“Open Space Area A” means the part of OS1-.which-is coloured blue on the plan in
Annexure 2 woe .

“Open Space Area B” means the part of OS2 which is coloured green on the plan in
Annexure 2 |

“Open Space Area C” means the area shown as “OS3” on Master Plan 2 which is
proposed to be maintained as Private Open Space substantially in its natural state for the
preservation of visual amenity and is coloured red on the plan in Annexure 2

“Open Space Area E” means the area shown as “OS5” on Master Plan 2 which is
proposed to be maintained as Private Open Space substantially in its natural state for the
preservation of visual amenity and is coloured yellow on the plan in Annexure 2

“Open Space Area G” means the area shown as “OS7” on Master Plan 2 which is
proposed to be maintained as Private Open Space substantially in its natural state for
environmental drainage and ecological purposes and is hatched on the plan in Annexure 2

“OS1”, “OS2”, “OS3”, “OSS” and “OS7” means the relevant open space areas bearing
those numerical designations as shown on Master Plan 2

“Planning Scheme” means the planning scheme for Noosa Shire gazetted May 1985 in
force at the date of this document.

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“Present Designation” means the area, precinct or zone in which the Land is presently
included under the Planning Scheme as described in item 7.

“Private Open Space” means open space land which is retained in private ownership and
maintained privately.

“Proposed Development” means the Development of the Land proposed in the
Application as amended by any Conditions of Approval.

“Public Office” has the meaning given in the Local Government Act 1993.
“Public Open Space” means open space land which is publicly owned and maintained.
“Reconfiguring” has the meaning given to reconfiguring a lot in the Act

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

“Shire Business Centre” means the Shire Business Centre for Noosa planned for
development on land including the Land and described in Section 19.3 of the Strategic
Plan. :

“Site works” means any works approved by a development permit for operational work in
association with the proposed development, but excluding infrastructure works, which the
Applicant is required to construct or for which the Applicant is to make a contribution
under this Agreement.

“Stage 1” means the first stage of development of the Shire Business Centre described in
the Development Application and approved under the Decision Notice, unless otherwise
used in the context of Eenie Creek Road.

“Strategic Plan” means the 1997 Strategic Plan for Noosa Shire.

“Use” has the meaning given in the Act.

“Walter Hay Drive” means the proposed road formerly known as the Southern Access
Road between Emu Mountain Road and Eenie Creek Road, and which. traverses the Land
as shown on the plan adopted by the Council as the proposed alignment of the road on 1
May 2003, as further modified by GHD plan 41-12240-C027 revision B, or as varied by
subsequent detailed design. .

“Walter Hay Drive Construction” means thé“construction of a two lane two way road
between Emu Mountain Road and Eenie Creek Road, excluding works on Walter Hay
Drive, which the Applicant is required to construct or for which the Applicant makes a
monetary contribution under this Agreement.

“Works” means the infrastructure works, which the Applicant is required to construct or
for which the Applicant makes a contribution under this Agreement.

Other Expressions

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

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1.7

3.1

3.2

3.3

4.1

4.2

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a. the Act; or

b. the Macquarie Dictionary in the absence of a definition in the Act.
When Development Approvals Take Effect

If a provision of this Agreement refers to a Development Approval taking effect in
accordance with the. Act, and there is an appeal to the Court affecting the Development
Approval, the appeal will not be taken, for the purposes of this Agreement, to be “finally
decided” in terms of Section 3.5.19(c) of the Act until all appeals to the Court of Appeal
and the High Court of Australia, and any remittance of the primary appeal back to the
Planning and Environment Court, have been finally decided and no other appeal affecting
the decision of the Planning and Environment Court is possible.

INFRASTRUCTURE AGREEMENT

This document is intended to constitute an infrastructure agreement under the Act.
OBLIGATIONS OF PARTIES

Compliance of Council

The Council shall comply with the terms of this document subject to the provisions of
Clauses 8 and 9.

Compliance of Applicant

The Applicant shall comply with the terms of this document subject to the provisions of
Clauses 8 and 9.

f

Time for Compliance

All obligations that the Applicant is required to comply with pursuant to this Agreement
shall be so done or paid within the time respectively provided in this document.

OPEN SPACE
OSA and OSB (Open Space Areas A and B)

The Applicant shall dedicate Open Space Area A and Open Space Area B for the purposes
of public open space — conservation and waterways protection in accordance with the
Conditions of Approval. :

Deemed Contribution to Community Infrastructure — Public Open Space

The Council recognises that the dedication of Open Space Area A and Open Space Area B,
comprising approximately 12.63 hectares (subject to survey) as public open space, is an
appropriate commitment of land to meet the environmental needs of the Land on the part

of the Applicant and shall be taken to be a contribution by the Applicant to community
infrastructure.

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43 Deemed Contribution to Community Infrastructure — Private Open Space

The Council recognises that the maintenance of Open Space Areas C, E, and G, and part of
OS2 and comprising approximately 2.329 hectares (subject to survey) as private open
Space, and its on-going maintenance, is a commitment on the part of the Applicant of land,

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5.1

6.1

to meet the environmental requirements associated with the proposed development and

shall be taken to be equivalent to a contribution
infrastructure.

Future Conditions/Infrastructure Charges

Having regard to the matters stated in Clauses 4.2 and
otherwise requested or agreed to by the Applicant:

by the Applicant to community

4.3, the Council agrees that unless

(a) Applications for development approvals in respect of Future Stages on the Land

shall be immune from conditions requiring; and

(b) The Land shall be immune from future infrastructure charges or levies in respect

of;

any further dedication of land, and any ac
contributions or charges on account of parks

quisition of other land, or the payment of
» conservation reserves, conservation areas,

Open space, public recreational facilities (land, pedestrian and cycle pathways), nature

conservation, bushland preservation and like purposes.

Future Buffers to Open Space Areas

Recognising the amount of the land to be dedicated as public open space in O
Area A and Open Space Area B and the areas to be set-aside and managed as p

DRAINAGE/WATERWAY MANAGEMENT

External Stormwater Works

pen Space

Nothing in this Agreement affects the ability of the Council to lawfully impose conditions
requiring the construction or augmentation of stormwater Systems external to the site in
response to applications for Development Approvals relating to Future Stages of the Shire

Business Centre.
EXTERNAL ROADWORKS

Design Standards

The following design and construétion standards shall
under this document and the Conditions of Approval:

apply to roadworks constructed

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6.2

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a. The design of the horizontal and vertical alignment shall comply with latest Main
Roads Road Planning and Design standards, (also available from the internet),

b. Vehicle design speeds through roundabouts shall not fall below 30 kph and the

differential design speed within adjacent elements of the roundabout should not vary by
more than 10 kph.

c. Pavement design shall take into account projected traffic volumes for a design life of
20 years. /

d. Designs shall employ best engineering practice conform to appropriate Australian
standards, and road user safety must be of paramount consideration, and be
accompanied by a road safety audit report.

e. The Manager Land Development shall approve all designs for works to be designed
and / or constructed by the Applicant prior to commencement of work.

Eenie Creek Road

6.2.1 Upgrade of Eenie Creek Road from Eumundi Noosa Road to Walter Hay Drive.
from two lanes to four lanes

The Applicant shall, at no cést to the Council, design and construct an upgrade of Eenie
Creek Road from Eumundi Noosa Road to Walter Hay Drive from two lanes to four lanes
in accordance with the Conditions of Approval.

6.2.2 Access intersection with Eenie Creek Road

The Applicant shall design and construct the access intersection with Eenie Creek Road in
accordance with the Conditions of Approval.

The Applicant shall dedicate any land required ‘for the access intersection at no cost to the :

Council, including any land that may be required to facilitate the type of intersection
referred to in Clause 6.2.3.

6.2.3 Future Impacts on the Arterial Road Network

Should the Council and the Applicant agree that the access intersection to the Shire
Business Centre on Eenie Creek Road is unsatisfactory because there are adverse impacts
on the arterial road network or to the traffic management of the Shire Business Centre, the
Council may permit the Applicant to make adjustments to the type of intersection and any
such works shall be undertaken by the Applicant‘at no’ cost to the Council. Nothing in this
clause: shall prevent the Council from lawfully conditioning an application for a
development permit for a future stage of the Shire Business Centre so as to require the
access intersection to be upgraded.

The Manager Land Development shall approve the design of any modifications to the type
of intersection.

6.2.4 Upgrade of Eenie Creek Road from Walter Hay Drive to Reef Street from two
lanes to four lanes

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The Applicant shall, at no cost to the Council, construct two additional westbound lanes on
Eenie Creek Road between its intersections with Walter Hay Drive and Reef Street in
accordance with the Conditions of Approval.

6.2.5 Access to Lot 1 on RP215933 — Childcare Centre

Access to existing Childcare Centre on Lot 1 on RP215933 shall be retained at all times by
the Applicant in accordance with the Conditions of Approval.

6.2.6  Eenie Creek Road Stage 2

For avoidance of doubt it is agreed that the Applicant is not required to construct any part
of Eenie Creek Road Stage 2 and that the Council will use its best endeavours to complete
its construction by June 2005.

6.2.7 Cycle Ways / Bicycle lane from Shire Business Centre to Eumundi Noosa Road

The Applicant shall construct a 2m wide pedestrian/bicycle pathway on Eenie Creek Road
from the Shire Business Centre to the intersection of Eenie Creek Road and Eumundi
Noosa Road in accordance with the Conditions of Approval.

6.2.8 Design Costs for Eenie Creek Road

The Applicant shall pay to the Council its reasonable costs incurred for the design of two
westbound lanes of Eenie Creek Road between Reef Street and Walter Hay Drive referred
to in clause 6.2.4. The Applicant shall be responsible to undertake the design of Eenie
Creek Road between Walter Hay Drive and Eumundi Road inclusive of the access to the
Shire Business Centre at no cost to Council.

.

6.2.9 Supervision

The Applicant shall pay to Council for the reasonable costs incurred by the Council in
supervising the construction of works referred to in clause 6.2.

Walter Hay Drive

6.3.1 Alignment

Works required in Walter Hay Drive shall be generally in accordance with Council’s
approved alignment as indicated in the planning and design concept for Walter Hay Drive,
approved by Council on 1 May 2003, as further modified by GHD plan 41-12240-C027
revision B in Annexure 3, or as subsequently approved by Council for the detailed design.

6.3.2 _ Funding Responsibilities

This document acknowledges that Walter Hay Drive Construction is being funded as a two
lane two way road pursuant to a Demaining Agreement by the Main Roads Department
and that changes to alignment will become necessary to accommodate a northern and a
southern roundabout to the Shire Business Centre off Walter Hay Drive. The design of the
road and bridgeworks prepared by GHD has included all works required to construct
Walter Hay Drive inclusive of these two roundabouts.

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The extent of funding responsibility of the Applicant to make a monetary contribution
under this infrastructure agreement is shown in Annexure 4 and includes:

a. a torthern roundabout on proposed Walter Hay Drive providing access to the
proposed development and associated road work; :

b. two northbound lanes on Walter Hay Drive between Eenie Creek Road roundabout
and the northern roundabout on proposed Walter Hay Drive providing access to the
proposed development referred to in clause 6.3.2 a; and

¢. a southern roundabout providing access to the proposed development on the section
of the proposed Walter Hay Drive to the south of the roundabout referred to in clause
6.3.2 a and associated road work. :

6.3.3 Southern Roundabout

The parties agree that:

a. The southern roundabout access referred to in clause 6.3.2 c is not required in respect
‘ of the Development Application;

b. The Applicant could be lawfully conditioned to provide the southern roundabout in
connection with an application for a Development Approval for a Future Stage;

c. Additional construction costs would be incurred in altering Walter Hay Drive to
include the southern roundabout when a Future Stage is developed;

d.| | The Applicant will make a monetary contribution to enable the southern roundabout
to be constructed contemporaneously with the construction of Walter Hay drive, to
avoid the additional costs referred to in clause 6.3.3 c.

6.3.4. Design and Supervision Costs 0 eee et oe

The Applicant agrees to pay:

a.  Council’s reasonable design. costs for the works in clauses 6.3.2 a to c inclusive; and

b.  Council’s supervision / administration costs for the works in clauses 6.3.2 a to c
inclusive calculated at 2.5% of the estimated cost of Walter Hay Drive Works as
determined by clause 6.3.6.

6.3.5 Timing of Walter Hay Drive Works

The Council agrees to have the works listed in clauses 6.3.2 a to b completed by 31*
January 2006.

The Council also agrees to use its best endeavours to have the remaining works for Walter
Hay Drive Construction completed by 31 January 2006.

6.3.6 Cost of Walter Hay Drive Works

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6.4

6.5

Page 15

For the works listed in clauses 6.3.2 a to c inclusive, the amount of contributions shall be
determined in accordance with certified progress claims for the relevant works in
accordance with Clause 6.4,

6.3.7 Applicant not required to construct Walter Hay Drive

For avoidance of doubt, but subject to the provisions of clause 6.3.2, it is agreed that the
Applicant is not required to construct any part of Walter Hay Drive, such construction
being the responsibility of the Council.

6.3.8  Pedestrian/bicycle underpass under Walter Hay Drive

The Applicant shall contribute to Council for a pedestrian/bicycle underpass under Walter
Hay Drive. The amount of contribution shall be assessed as 50% of the cost of
constructing the underpass, determined in accordance with certified progress claims for the
relevant works in accordance with Clause 6.4.

The underpass works shall include the structure, headwalls, lighting, drainage and
associated works required by the roadworks contract documentation,

The Applicant shall construct bike paths between the pedestrian/bicycle underpass under
Walter Hay Drive and under Eenie Creek Road to the proposed development within road
reserve at no cost to the Council to the reasonable satisfaction of the Manager.

Timing for Payment

Any works to be paid for by the Applicant by way of contribution to the Council shall be
the subject of an itemised progress claim certified by the Superintendent appointed by the
Council to administer a contract to be let for Walter Hay Drive Construction and the
relevant works being the subject of the contribution. -

Within 14 days of being advised by the Council in writing that a progress payment has
been certified for works in respect of which the Applicant is required to make a
contribution (including the provision of a copy of the certified progress claim) the
Applicant shall pay to the Council the amount so certified for the relevant works.

Within one month of being advised by the Council in writing of other costs the Applicant

is required to meet pursuant to this Agreement, the Applicant shall pay to the Council the
amount so advised.

Dedication for public road purposes for Walter Hay Drive

The Applicant shall dedicate to the State for the purposes of public road land shown in
Annexure 6 for the proposed Walter Hay Drive at no cost to the Council. The final
boundaries and area required to be dedicated is subject to survey and the Applicant shall

submit for approval and sealing by the Council a Survey Plan excising the area to be
dedicated:

a. within 12 months of the Development Permit taking efféct.in accordance with the
Act; or

Page 17

(

6.6

7.1

7.2

8.1 -

8.2

8.3

Page 16

b. subject to this Agreement having become unconditional pursuant to Clauses 8 and
9, within 1 month of Council advising the Applicant that it has advertised tenders
for the Walter Hay Drive Construction; or

c. contemporaneously with the dedication of Open Space required in Clause 4.1.
whichever is the earliest.
Surplus Parts of Existing Road Reserve

The Council acknowledges that the Applicant will seek to acquire any portions of the
existing road reserve that is generally in the location of the proposed Walter Hay Drive,
adjoining the Land and which is not required for the purposes of Walter Hay Drive. The
Council agrees to support any application made by the Applicant to the Department of
Natural Resources and Mines to acquire any such surplus land for inclusion in the Shire
Business Centre.

OWNERSHIP OF INFRASTRUCTURE
Infrastructure within the Proposed Development

The Applicant will own infrastructure constructed on the Land excluding infrastructure
contained in public road deditated from the Land.

The Applicant agrees to construct and maintain infrastructure constructed on the Land to a

standard acceptable to the Manager until such time as either the Council or the State’

accepts the ownership of infrastructure.

Nothing in this clause binds either the Council or the State to accept ownership of —

infrastructure within the development. ‘
Infrastructure External to the Proposed Development:

The Council or the State will own infrastructure external to the Land, including works
provided by the Applicant for Walter Hay Drive and Eenie Creek Road.

CONDITIONS PRECEDENT
Conditional Upon Approval of Development Application

This Agreement is conditional upon the Decision Notice taking effect in accordance with
Section 3.5.19 of the Act. :

Infrastructure Agreement Terminates

If the Decision Notice does not.take effect in accordance with Section 3.5.19 of the Act,
then this Agreement will automatically cease and determine.

Conditional Upon Applicant Becoming Owner of Land

This Agreement is conditional upon the Applicant completing its purchase of the Land in

accordance with the terms of the contract of sale between the Applicant and the owner of /

the Land.

le

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1

Lb

sel

1

8.4

10

9.1

10.1

10.2

10.3

Page 17

Failure to Complete Contract

If the Applicant does not complete the purchase of the Land in accordance with the terms
of the contract of sale referred to in Clause 8.3, then this Agreement may be terminated by
either party giving written notice of termination to the other.

CONDITIONS — SUBSEQUENT
Lapse or Cancellation of Permit
Ifthe Development Permit:
9.1.1 lapses in accordance with Section 3.5.21 of the Act; or

9.1.2 is cancelled upon the request of the Applicant in accordance with Section 3.5.26
of the Act

then, to the extent that this Agreement is not completed, this Agreement will automatically
cease and determine.

FUTURE STAGES OF SHIRE BUSINESS CENTRE

The Shire Business Centre shall be developed in accordance with Master Plan 2, in stages
consistent with the needs of the community.

Description of Stage 1 and Future Stages

a. The Development Application relates to Stage 1 of the Shire Business Centre being
a Retail Centre of 18,300m? TUA, a Showroom/Homemaker Centre of 7,000m?
TUA and a Commercial and Business component of not more than 5,000m? TUA.

b. Future stages of the Shire Business Centre on the Land as contemplated by Master .
Plan 2.

c. Future stages of the Shire Business Centre on land other than the Land as
contemplated by Master Plan 2.

Intent re Stage 1 and Future Stages

This Agreement is intended to give the Applicant certainty as to the contributions and/or
infrastructure charges that will be payable by it or its successors in title in respect of Stage
1 and future stages of the Shire Business Centre on the Land and also to give the Council
correlative certainty as to the contribution to the community that will be made by the
Applicant.

Extent of Immunity of Future Stages of the Shire Business Centre on the Land from
Infrastructure Conditions/Charges

a. Subject to Clause 10.3b, provided that the intensity of development of a Future

Stage does not exceed Master Plan 2, and subject to the provisions of clauses 6.2.3
and 10.4, the Council agrees that having regard to the contributions and physical
infrastructure provided for in this Agreement and the Conditions of Approval in
respect of roads, cycle ways, parks, open space, nature conservation, public

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il

10.4

10.5

111

Page 18

recreational facilities (land, cycle and pedestrian pathways), bushland preservation,
urban drainage, water quality, or waterway management, the Applicant and its
successors in title shall-not be required in respect of Future Stages of the Shire
Business Centre on the Land to undertake work, pay contributions (by way of
conditions imposed on any application) on account of, nor to pay infrastructure
charges levied in accordance with the Act for works external to the Land relating to
roadworks, cycle-ways, parks, open space, nature conservation, public recreational
facilities (land, cycle and pedestrian pathways), bushland preservation, water
quality, or waterway management.

b. The Applicant may be required to undertake work, pay contributions, or pay
infrastructure charges to the extent that the intensity of the development proposed

for a Future Stage exceeds the intensity of development envisaged under Master
Plan 2.

c. For avoidance of doubt, the references to intensity of development in Clauses 10.3a
and .b have regard to the extra demand that would be placed upon infrastructure
through any increase in the intensity of development.

~ Future Stages Not Immune From Urban Water Cycle and Sewerage Headworks _

Contributions/Charges

a. Notwithstanding the provisions of Clause 10.3, the Applicant accepts that it will be
required to pay headworks charges for water supply and sewerage infrastructure
external to the Land by way of conditions or infrastructure charges, lawfully levied
at the rates applicable at the relevant time or times in respect of applications for
development approvals for Future Stages of the Shire Business Centre on the Land.

b. For avoidance of doubt, the Applicant shall not be required to pay any further
contributions or infrastructure charges for water supply or sewerage infrastructure
consequent upon the approval of further .Development Applications for Stage 1
above those required by the conditions of approval. :

Future Stages of the Shire Business Centre not on the Land as contemplated by Master
Plan 2

With regard to any application for a development permit for Future Stages of the Shire
Business Centre not on the Land, whether or not made by the Applicant, this Agreement
notes that Council, at its special meeting of 30% July 2003, Council resolved that it was not
satisfied that infrastructure required by the Conditions of Approval is of such benefit to the
owner of lot 1 on RP 215933 that would require a reimbursement by the owner to the
Applicant

The Council may, however, consider reimbursement to the Applicant if Council receives a
contribution other than from the Applicant toward the cost of intersection works required
by Clauses 6.2.2 or 6.2.3. : ‘

GST

Definitions

_ In this clause:

Page 20

 

 

11.2

Page 19

“taxable consideration” means any act or thing done pursuant to or in consequence of this
document which is consideration for a taxable supply by the Council.

“consideration” has the meaning given in A New Tax System (Goods and Services Tax)
Act 1999,

“GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999.
“GST Act” means the A New Tax System (Goods and Services T ax) Act 1999.

“taxable supply” has the meaning given in A New Tax System (Goods and Services Tax)
Act 1999, :

Payment of GST

a. Any amount to be paid to a party (“the Supplier”) by the other party (“the
Recipient”) under this Agreement which is consideration for a taxable supply made
by the Supplier shall be increased by the amount of GST which the Supplier is
obliged to pay in respect of that taxable supply pursuant to the GST Law, the
intention being that the Recipient shall reimburse the Supplier that amount of GST in
addition to the consideration otherwise expressed herein as payable in respect of that’
taxable supply.

b. The Recipient must pay the GST contemplated in clause 11.2a:

@ on demand upon receipt of a tax invoice for the relevant taxable supply
issued by the Supplier which complies with the GST Law; and

Gi) in the same manner as the Recipient is required to pay for the taxable
supply to which the GST contemplated in clause 11.2a relates,

unless otherwise agreed by the parties. *“

c. Any amount to be paid by a party (“Reimbursing Party”) to the other party
(Reimbursed Party”) under this Agreement which is not consideration for a taxable
supply made by the Reimbursed Party to the Reimbursing Party shall be reduced by
‘the amount of input tax credits to which the Reimbursed Party is entitled in respect
of the creditable acquisition for which reimbursement is being sought, the intention

being that the Reimbursing Party only reimburses the Reimbursed Party for the net
cost of the acquisition. ,

d. Without limiting the foregoing provisions of this clause 11 in any manner, if a
payment to satisfy a claim or a right to claim under or in connection with this
Agreement (for example, for misleading or deceptive conduct, misrepresentation, a
breach of any warranty, an indemnity, or for reimbursement of any damages or
expense) gives rise to a liability to pay GST, the payer must pay, and indemnify the
payee against, that amount of GST.

e. Ifa party has a claim under or in connection with this Agreement whose amount
depends on actual or estimated revenue or which is for a loss of revenue, revenue
must be calculated without including any amount received or receivable as

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12

13

12.1

12.2

12.3

13.1

13.2

Page 20

reimbursement for GST (whether that amount is separate or included as part of a
larger amount).

NOVATION OF DEED UPON SALE
Restriction on the right to Sell the Land

Subject to Clause 12.3 (Restriction not to apply to subdivided Lots), the Applicant shall not
Sell the Land or a precinct within the Land as shown on. Master Plan 2, prior to the
performance and fulfilment of the Applicant's obligations under this document unless the
purchaser shall enter into a deed of novation of this document with the Council whereby
the purchaser becomes contractually bound to the Council to perform and fulfil the
provisions of this document or such of them as remain unperformed or unfulfilled by the
Applicant at the time of such Sale.

Applicant Remains Liable Until Purchaser Signs

Until the proposed purchaser executes and delivers the required deed of novation or in the
event of a Sale being made otherwise than in compliance with clause 12.1 (Restriction on
the right to Sell the Land):

a. the Applicant remains liable for the performance and fulfilment of this document
as though no Sale had taken place; and

b. the Applicant shall perform and fulfil such of its obligations under this document
as have not been performed and fulfilled immediately or at such other time or
times as the Council stipulates, even if the time or times otherwise appointed for
such performance and fulfilment have not then arrived.

Restriction not to apply to subdivided Lots _

Clause 12.1 (Restriction on the right to Sell the Land shall not apply to a Sale in the |

ordinary course of entering into agreements to Sell Lots which conform to a design

approved by the Council and are shown on a registrable Plan for the Reconfiguring of the .

Land or a Building Format Plan consented to by the Council.
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 comprising the Applicant) at the address specified in Schedule 1.

Service by post

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.

Page 22

 

13.3 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. In
proving service of a Notice made, given or served by the Applicant it is only necessary for
the Applicant to certify to that effect under the hand of a director of the Applicant.

13.4 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.

14 MISCELLANEOUS

14.1 ° Payment of costs

The Applicant shall pay its own costs and Council’s reasonable costs of and incidental to
the preparation of this agreement.

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

14.3. Place for payment of monies

.

All monies payable to a party under this document are payable free from all deductions at
the address of that party specified in Schedule Le -

14.4 Waiver

No waiver by either party of any breach by the other party of any of the provisions of this
document shall be implied against the other party or be otherwise effective unless it is in
writing under the hand of the Chief Executive Officer or a director of the Applicant.

14.5. Laches and delay

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

powers.

14.6 Power of entry

The Applicant shall permit the Council and the Council's Agents authorised by the Chief
Executive Officer, at all reasonable times during the operation of this document to enter
into and upon the Land for the purposes of:

a. examining and inspecting the state and condition of the Land; and

Page 23

 

14.7

Page 22

ascertaining whether the obligations of the Applicant under this document have been
duly performed and fulfilled; and :

making good at the cost and expense of the Applicant any breach of such obligations

provided that a Notice shall be given to the Applicant before such expenditure is
incurred;

exercising the Council's rights under this document to enter into and upon the Land;
and

works associated with the Walter Hay Drive Construction.

Severance

If any provision of this document 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 document.

14.8

_ Warranty of authority

Any person signing this document:

(a)

(b)

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 person; and

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

.

14.9 Further assurances

Each party agrees at its cost to do everything reasonably necessary to give effect'to this ©

document.

14.10 Force Majeure

(a)

(b)

(c)

If a party is unable by reason of an event of Force Majeure to carry out its
obligations under this document, 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.

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.

Where the obligations of a party are dependent upon the occurrence of specified
circumstances, then the party 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 party’s control.

Co

Page 24

 

 

14.11

(a)

(b)

Page 23

Amendment of document

Despite any provision of this document, the Council and the Applicant may at any
time agree to vary the terms of this document.

No modification, variation or amendment of this agreement is of any force or
effect unless:

() it is in the form of an amendment agreement and has been signed by the
parties; and
(I) where relevant the amendment agreement complies with the requirements

_ of the Act.

Page 25

 

ITEM 1

ITEM 2

ITEM 3

ITEM 4

ITEM 5

ITEM 6

ITEM 7

SCHEDULE 1 —- AGREEMENT DETAILS ‘

Pate 3° ocr BER, 2003.

Name of Agreement

Council

Name of Local Government

Address of Public Office

Applicant

Name

Address of registered office
Land

Description

County

Parish

Area

' Title Reference

Address

Development Application

Noosa Shire Business Centre - Part (Lot 2 on
SP 110885) .
Infrastructure Agreement

Noosa Shire Council

9 Pelican Street, Tewantin Qld 4565

Mirose Pty Ltd ACN 010 278 118

Unit 10, 211 Montague Road

West End Qld 4101

Lot 2 on SP 110885

March

Tewantin ; i
50.77 hectares

50223083

Eenie Creek Road, Noosaville

Application for a Development Permit for Material Change of Use for Stage 1 of the
Shire Business Centre on part of the Land described by metes and bounds lodged with
the Council as Assessment Manager under the Act on 19 June 2002 as amended in
tesponse to the Information Request on 6 November 2002.

Present Designation
Zones

Strategic Plan Designations

Future Urban and Rural Pursuits

Shire Business Centre; Rural Conservation and
Open Space — Conservation and Waterway
Protection

Page 26

 

_~

 

- Annexure 1 — Decision Notice DA 22803 dated 18 August 2003

Page

25