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2020-08-31 SM - Item 2 - Attachment 3 - Deed of Agreed Delivery Arrangement
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Special Meeting 31 August 2020 Item 2 - Attachment 3 Agreed Delivery Arrangement Stockwell Development Group Pty Ltd (Entity) Noosa Shire Council (Administering Agency) Contact - Sarah Macoun, Partner, [email protected] BRISBANE PERTH Level 8, Waterfront Place, 1 Eagle Street T +61 7 3024 0000 Level 27, Allendale Square, 77 St Georges Terrace T +61 8 9211 8111 Brisbane Qld 4000 Australia F +61 7 3024 0300 Perth WA 6000 Australia F +61 8 9221 9100 PO Box 7822, Waterfront Place Qld 4001 Australia PO Box Z 5312, St Georges Terrace, Perth WA 6831 Australia E [email protected] www.hopgoodganim.com.au
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Section 2
Table of Contents
1. Definitions and interpretation .......................................................................................................1
1.1 Defined terms .....................................................................................................................1
1.2 Interpretation ......................................................................................................................3
1.3 Other expressions ..............................................................................................................4
2. Acknowledgements ......................................................................................................................4
2.1 Commencement .................................................................................................................4
2.2 Application of the EO Act ...................................................................................................4
2.3 Authority Offset Condition attaching to the land ................................................................4
2.4 Conditions precedent .........................................................................................................4
2.5 Condition subsequent ........................................................................................................5
2.6 Compliance with clause 4(a) of this agreement .................................................................5
2.7 Future Offset Conditions ....................................................................................................5
3. Obligations of the parties .............................................................................................................5
3.1 Entity’s obligations .............................................................................................................5
3.2 Administering Agency’s obligations ...................................................................................6
4. Payment of the Financial Settlement Offset Amount ...................................................................6
5. Performance of Administering Agency Obligations ......................................................................6
6. Additional Costs ...........................................................................................................................6
7. Assignment by Entity ....................................................................................................................6
7.1 Restriction on assignment..................................................................................................6
7.2 Restriction on the right to refuse ........................................................................................6
7.3 Conditions of the consent ..................................................................................................6
8. Default by Entity ...........................................................................................................................7
8.1 Rights of the Administering Agency on default ..................................................................7
8.2 Rights of Entity on default ..................................................................................................7
9. Mediation ......................................................................................................................................7
9.1 Negotiation and good faith .................................................................................................7
9.2 Parties to mediate ..............................................................................................................7
10. Service .........................................................................................................................................7
11. Miscellaneous ...............................................................................................................................7
11.1 Payment of costs ...............................................................................................................7
11.2 Time ...................................................................................................................................7
11.3 Joint and severable liability ................................................................................................8
11.4 Waiver ................................................................................................................................8
11.5 Laches and delay ...............................................................................................................8
11.6 Severance ..........................................................................................................................8
11.7 Warranty of authority ..........................................................................................................8
11.8 Counterparts ......................................................................................................................8
11.9 Further assurances ............................................................................................................8
11.10 Force Majeure ....................................................................................................................8
11.11 Amendment of agreement .................................................................................................9
Schedule 1 - Agreement details 11
Schedule 2 - Plan of Impact Area 12
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Section 3
Agreed Delivery Arrangement
Date
Parties
Stockwell Development Group Pty Ltd (Entity)
Noosa Shire Council (Administering Agency)
Notice details
A. The notice details of the Entity are as follows:
Stockwell Development Group Pty Ltd ABN 50 010 095 360
399 Montague Road, West End, Qld 4101
B. Unless otherwise specified in this agreement, the notice details of the Administering Agency
are as follows:
Noosa Shire Council
9 Pelican Street, Tewantin, Qld 4565
Background
A. The Authority includes the Authority Offset Condition.
B. The Entity has given the Administering Agency the Notice of Election.
C. The Administering Agency has given the Notice of Decision to the Entity which requires the
Entity to enter into an agreed delivery arrangement about the delivery of the Authority Offset
Condition.
D. This is the agreed delivery arrangement.
It is agreed
1. Definitions and interpretation
1.1 Defined terms
In this agreement:
Administering Agency means the Noosa Shire Council
Authority means the development approval specified in the Notice of Decision.
Authority Offset Condition means the Offset Condition specified in the Notice of Decision.
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Section 4
Agreed Delivery Arrangement
Business Day has the meaning given in the Acts Interpretation Act 1954 for the
Administering Agency’s local government area.
Change Notice means a notice issued by the Administering Agency that approves a
change to the Authority, which is made pursuant to, and in accordance with the Planning
Act.
Chief Executive Officer means the Chief Executive Officer of the Administering Agency or
delegate.
Commencement Date means the commencement of this agreement pursuant to clause 2.3.
CPI means the Consumer Price Index.
Entity means Stockwell Development Group Pty Ltd.
Environmental Offset has the meaning given under the EO Act.
EO Act means the Environmental Offsets Act 2014.
Financial Settlement Offset has the meaning given by the EO Act.
Financial Settlement Offset Amount means a contribution that equates to $1,132,996.29for
offsetting the Impact Area (which is determined on the basis of the calculation under the
Financial settlement offset calculator for environmental offsets, with a credit in recognition of
previous dedications and contributions made pursuant to the Infrastructure Agreement for the
Noosa Shire Business Centre dated 3 October 2003), subject to any requirement in the Notice
of Decision for the Environmental Offset to be delivered in a different way.
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.
Impact Area means the area that the development the subject of the Authority will have a
Significant Residual Impact on as identified in the Authority Offset Condition, specifically
12.4943ha of vegetation, including koala habitat (as shown on the plan by Norris Clarke &
O’Brien Pty Ltd (reference 10651BHP Rev C) dated 24 August 2020) which appears in
Schedule 2, in the Administering Agency’s local government area. The Impact Area will be
subject to any changes made by way of a Change Notice, unless otherwise stated in this
agreement.
Land means the land specified in the property description and property location in the Notice
of Decision.
Notice of Decision means the notice given by the Administering Agency to the Entity
pursuant to section 19(3) of the EO Act which states that the way in which the Entity is
required to deliver the Environmental Offset is by way of a Financial Settlement Offset,
which is identified in Item 1 of Schedule 1.
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Section 5
Agreed Delivery Arrangement
Notice of Election means the notice given by the Entity to the Administering Agency
pursuant to section 18 of the EO Act which elects to deliver the Offset Condition by way of a
Financial Settlement Offset, namely:
(a) Environmental Offsets Delivery Form 1 –Notice of Election and Advanced Offset
Details; and
(b) Environmental Offsets Delivery Form 4 – Financial Settlement Details which is
specified in the Notice of Decision.
Offset Condition has the meaning given in the EO Act.
Owner has the meaning given under Planning Act.
Planning Act means the Planning Act 2016.
Reconfiguring a Lot has the meaning given under Planning Act.
Significant Residual Impact has the meaning given in the EO Act.
1.2 Interpretation
In this agreement, unless a contrary intention appears, reference to:
(a) A clause is to a clause in this agreement.
(b) The singular includes the plural and vice versa.
(c) Any gender includes all other genders.
(d) A person includes a firm, a corporation, an association and a body, whether
incorporated or not and a government or statutory body or authority.
(e) Legislation (including subordinate legislation) includes:
(1) statutory instruments under the legislation; and
(2) consolidations, amendments, re-enactments or replacements of the legislation;
and
(3) writing includes any mode of representing or reproducing words in tangible and
permanently visible form and includes facsimile transmission; and
(4) this or any other agreement includes the agreement as varied or replaced and
is not affected by any change in the identity of the parties; and
(5) a day is to a business day.
(f) The clause headings appearing in this agreement are inserted for convenience of
reference and do not affect the construction of this agreement.
(g) If any words are italicised or otherwise printed differently, this has been done for
convenience only and does not affect the construction of this agreement.
(h) 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 agreement bind those persons jointly and each of them severally.
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Agreed Delivery Arrangement
(i) This agreement 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.
(j) Nothing contained in this agreement affects, prejudices or derogates from the
requirements of any statute or from the rights, powers and authorities of the
Administering Agency under the provisions of any statute or under any declared policy
of the Administering Agency.
(k) An inclusive definition, or an example or particularisation of a provision, does not limit
but may extend that definition or provision.
(l) Where a word or expression is defined, other parts of speech and grammatical forms
of that word or expression have a corresponding definition.
(m) All schedules to this agreement form part of this agreement and a reference to an item
is a reference to an item in the schedule.
1.3 Other expressions
If a term is not defined in this agreement it shall unless the context otherwise requires, have
the meaning given to it by:
(a) the EO Act; or
(b) the Macquarie Dictionary in the absence of a definition in the EO Act.
2. Acknowledgements
2.1 Commencement
This agreement commences on the date the last party executes this agreement.
2.2 Application of the EO Act
This agreement is intended to constitute an agreed delivery arrangement under section 19(4)
of the EO Act.
2.3 Authority Offset Condition attaching to the land
(a) The parties acknowledge that this agreement gives effect to an agreement reached
between the Administering Agency and the Entity about the delivery of the Authority
Offset Condition.
(b) The parties acknowledge that the Authority attaches to the Land and binds the Owner
and the Owner’s successors in title and any occupier of the Land pursuant to section
73 of Planning Act.
2.4 Conditions precedent
(a) This agreement is subject to and conditional on:
(1) each party unconditionally delivering a full and validly executed agreement or
counterpart of this agreement to the other party; and
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Agreed Delivery Arrangement
(2) the Authority taking effect.
(b) Each party must use all reasonable endeavours to procure the satisfaction of the
condition specified in clause 2.4(a)(1).
(c) If the conditions in clause 2.4(a) are not satisfied then this agreement will be of no
force or effect and the parties will have the same rights and obligations which they had
prior to the date of execution of the agreement as if this agreement had never been
executed.
2.5 Condition subsequent
If the Authority lapses or is cancelled under the Planning Act then, to the extent this agreement
is not completed, this agreement will automatically cease and determine.
2.6 Compliance with clause 4(a) of this agreement
(a) The Administering Agency acknowledges that payment of the Financial Settlement
Offset Amount in the way provided for in clause 4(a) is full and final satisfaction of:
(1) the obligations under this agreement for the Entity to pay the Financial
Settlement Offset Amount; and
(2) all requirements of the Authority Offset Condition;
(3) any requirement to provide an environmental offset for any development of the
Land.
2.7 Future Offset Conditions
(a) The parties acknowledge and agree that:
(1) the Financial Settlement Offset Amount (required to be paid by the Entity in the
way provided for in clause 4(a) of this agreement) is in respect of the Impact
Area identified in the Authority Offset Condition; and
(2) in the event that a change to the Authority is requested which has the effect of
changing the Impact Area, the Administering Agency is not restrained from
doing either of the following when the Administering Agency issues a Change
Notice:
(A) imposing a new Offset Condition to reflect the changed Impact Area; or
(B) changing the Authority Offset Condition to reflect the changed Impact
Area.
(3) the Financial Settlement Offset Amount paid by the Entity in the way provided
for in clause 4(a) of this agreement satisfies any new Offset Condition or
changed Authority Offset Condition pursuant to clause 2.4(a)(2).
3. Obligations of the parties
3.1 Entity’s obligations
The Entity must:
(a) pay the Financial Settlement Offset Amount in the way provided for in clause 4(a); and
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Agreed Delivery Arrangement
(b) otherwise comply with the terms of this agreement.
3.2 Administering Agency’s obligations
The Administering Agency must comply with the terms of this agreement.
4. Payment of the Financial Settlement Offset Amount
(a) The Financial Settlement Offset Amount must be paid by:
(1) the Entity making a payment in the amount of $1.00 to the Administering
Agency’s offset account before starting any work to which the Offset Condition
relates; and
(2) compliance by the Administering Agency with Clause 5(a)(2).
5. Performance of Administering Agency Obligations
(a) Upon the Entity paying the Financial Settlement Offset Amount in the way outlined in
clause (4)(a)(1), the Administering Agency must within 20 business days:
(1) provide within 3 business days written acknowledgement to the Entity
acknowledging the payment of the Financial Settlement Offset Amount
pursuant to clause 4(a)(1); and
(2) make a financial contribution of $1,132,996.29to the Administering Agency’s
offset account and provide to the Entity written confirmation of the contribution.
6. Additional Costs
The parties acknowledge and agree that:
(a) the Entity is responsible for all costs and ongoing responsibilities for payment of the
Financial Settlement Offset Amount; and
(b) the Administering Agency is responsible for all costs and ongoing responsibilities for
the obligations outlined in clause 5.
7. Assignment by Entity
7.1 Restriction on assignment
The Entity shall not, either absolutely or by way of security, assign its interests, rights or
obligations under this agreement without the prior consent of the Administering Agency in
writing signed by the Chief Executive Officer of the Administering Agency.
7.2 Restriction on the right to refuse
The Administering Agency may, in its absolute discretion, withhold its consent to the
assignment.
7.3 Conditions of the consent
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Section 9
Agreed Delivery Arrangement
If the Administering Agency grants its consent, the Administering Agency may impose
conditions for the giving of such consent which are not inconsistent with the provisions of this
agreement.
8. Default by Entity
8.1 Rights of the Administering Agency on default
If the Entity has breached clause 3.1, 4, 6(a) or 7 of this agreement, the Administering Agency
may elect, in its absolute discretion and without limiting any other rights, to do one or more of
the following:
(a) pursue contractual remedies for breach of this agreement; or
(b) exercise any of its powers pursuant to Chapters 5 and 6 of Planning Act.
8.2 Rights of Entity on default
If the Administering Agency has breached clause 3.2, 5 or 6(b) of this agreement, the Entity
may pursue contractual remedies for breach of this agreement.
9. Mediation
9.1 Negotiation and good faith
If a dispute arises between the parties, then prior to initiating any court action, the parties must
meet and in good faith attempt to resolve the dispute.
9.2 Parties to mediate
(a) If the parties fail to resolve the dispute within 10 Business Days of the dispute arising,
then the parties must submit to the mediation of the dispute by a mediator appointed
by the President for the time being of the Queensland Law Society.
(b) The mediator's fees shall be borne equally by the parties.
10. Service
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 shown specified in the
Notice details clause.
11. Miscellaneous
11.1 Payment of costs
Each party bears its own costs.
11.2 Time
Time is, in all cases, of the essence.
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Agreed Delivery Arrangement
11.3 Joint and severable liability
If the Entity is more than one entity, then the provisions of this agreement bind the entities that
are the Entity jointly and severally.
11.4 Waiver
No waiver by the Administering Agency of any breach by the other parties of any of the
provisions of this agreement shall be implied against the Administering Agency or be otherwise
effective unless it is in writing under the hand of the Chief Executive Officer.
11.5 Laches and delay
No laches or delay by the Administering Agency at any time or times in enforcing any of its
rights, powers and the like under this agreement prejudice or affect those rights or powers.
11.6 Severance
If any provision of this agreement 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 agreement.
11.7 Warranty of authority
Any person signing this agreement:
(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 person; 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 agreement in that
capacity.
11.8 Counterparts
This agreement may be executed in counterparts. All executed counterparts constitute one
document.
11.9 Further assurances
Each party agrees at its cost to do everything reasonably necessary to give effect to this
agreement.
11.10 Force Majeure
(a) If a party is unable by reason of an event of Force Majeure to carry out its obligations
under this agreement, 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 Administering Agency are dependent upon the occurrence
of specified circumstances, then the Administering Agency will be relieved of its
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Agreed Delivery Arrangement
obligations for so long as there is a change or deviation or non-occurrence of those
circumstances arising from a matter beyond the Administering Agency’s control.
11.11 Amendment of agreement
(a) Despite any other provision of this agreement, the parties may at any time agree to
vary the terms of this agreement pursuant to section 19(7) of the EO Act.
(b) No modification, variation or amendment of this agreement is of any force or effect
unless:
(1) it is in the form of an amendment agreement and has been signed by the
parties; and
(2) where relevant the amendment agreement complies with the requirements of
the EO Act.
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Section 12
Agreed Delivery Arrangement
Signing page
Executed as a deed
Signed for and on behalf of NOOSA SHIRE
COUNCIL by
pursuant to delegated authority number
on the of in in the presence of:
Signature Witness
Full name Print full name
Signed for the STOCKWELL DEVELOPMENT
GROUP PTY LTD under section 127 of the
Corporations Act 2001 on the of in
in the presence of:
Signature of Director Signature of director/company secretary (Please delete as
applicable)
Name of Director (print) Name of director/company secretary (print)
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Section 13
Agreed Delivery Arrangement Schedule 1 - Agreement details Item 1 Notice of Decision HopgoodGanim Lawyers Page 11 of 12 2083764 - 21306494v1
Section 14
Agreed Delivery Arrangement Schedule 2 - Plan of Impact Area HopgoodGanim Lawyers Page 12 of 12 2083764 - 21306494v1
Section 15
Norris Clarke & O'Brien Pty Ltd
Licensed Surveyors
Town Planners
Development Consultants
Level 1 - Aldi Centre, 12 Bishop Street
Kelvin Grove QLD 4059
ph: fax:
email: