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Appendix D Draft Infrstructure Agreement

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REPORT


                                                                 Draft Infrastructure Agreement




Town Planning Report for a Development Application | Version 2 | 22 June 2021
                                                                                            Page 21
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Page 2

                  NOOSA SHIRE COUNCIL



                     ANDREW MARTIN


            MACMARTIN INVESTMENTS PTY LTD




INFRASTRUCTURE DEED IN RESPECT OF PAYMENT OF CONTRIBUTIONS
IN LIEU OF OFF-STREET PARKING FOR A DEVELOPMENT PERMIT FOR:
            MATERIAL CHANGE OF USE FOR OFFICE


     DEVELOPMENT PERMIT: < APPLICATION REFERENCE NO>




                          Page 1 of 15

Page 3

                                                          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 ................................................................................................ 7
        1.6   Rights and Obligations .......................................................................................... 7
2       INFRASTRUCTURE DEED ------------------------------------------------------------------------------ 7
        2.1    Application of Act .................................................................................................. 7
        2.2    Warranty of Ownership ......................................................................................... 7
        The owner warrants that, at the time of signing this agreement, it is the owner of the
               land. ...................................................................................................................... 7
        2.3    Deed to bind successors in title ............................................................................ 7
        2.4    Deed conditional upon approval of Development Application .............................. 7
3       INFRASTRUCTURE CONTRIBUTION ---------------------------------------------------------------- 7
        3.1   Infrastructure Agreement overrides Development Permit .................................... 7
        3.2   Contribution in lieu of off-street parking ................................................................ 8
        3.3   Indexed Infrastructure Contribution in lieu of off-street parking ............................ 8
        3.4   Time for payment .................................................................................................. 8
        3.5   Payment to Council ............................................................................................... 8
4       GOODS AND SERVICES TAX -------------------------------------------------------------------------- 8
5       DEFAULT BY OWNER OR APPLICANT ------------------------------------------------------------- 9
        5.1  Rights of the Council on default ............................................................................ 9
        5.2  Application of money ............................................................................................ 9
6       RECONFIGURATION OF THE SUBJECT SITE ---------------------------------------------------- 9
        6.1  Reconfiguring and compliance ............................................................................. 9
        6.2  Reconfiguring and non-compliance ...................................................................... 9
7       SERVICE ----------------------------------------------------------------------------------------------------- 9
        7.1   Service by prepaid post ........................................................................................ 9
        7.2   Deemed service .................................................................................................... 9
        7.3   Proof of service ................................................................................................... 10
        7.4   Form of Notice .................................................................................................... 10
8       MISCELLANEOUS --------------------------------------------------------------------------------------- 10
        8.1   Payment of costs ................................................................................................ 10
        8.2   Time .................................................................................................................... 10
        8.3   Place for payment of monies .............................................................................. 10
        8.4   Waiver ................................................................................................................. 10
        8.5   Laches and delay ................................................................................................ 10
        8.6   Severance ........................................................................................................... 10
        8.7   Warranty of authority .......................................................................................... 10
        8.8   Further assurances ............................................................................................. 11
        8.9   Amendment of deed ........................................................................................... 11

SCHEDULE 1 -------------------------------------------------------------------------------------------- 12




                                                            Page 2 of 15

Page 4

Deed Details --------------------------------------------------------------------------------------------- 12

SCHEDULE 2 -------------------------------------------------------------------------------------------- 13




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

BETWEEN The Council

AND         the Applicant

AND         the Owner


RECITALS

A     The applicant is ANDREW MARTIN and the owner is MACMARTIN
      INVESTMENTS PTYLTD.

B     The applicant lodged a development application in relation to the Subject Site.

C     The applicant has made a request to the Council that it provide fewer on-site car
      parking spaces for the development proposed by the development application than
      would otherwise be required under the planning scheme.

D     The applicant proposes a contribution be paid for the shortfall in the number of car
      parks which would otherwise be required.


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




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                   (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

      (d)   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.

      (e)   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.

      (f)   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.

      (i)   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.

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

1.4   Definitions

      In this deed:

      “Act” means the Planning Act 2016 (the “Act”).

      "applicant" means the person described in and having its address at the place
      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.

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




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“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.

“development” has the meaning given in the Act.

“development application and development permit” have the meanings given
in the Act and are identified in Item 7 of Schedule 1.

“Index Number” means the Consumer Price Index - Index Numbers; All Groups
CPI for Brisbane produced by the Australian Bureau of Statistics. If the said Index
is suspended or discontinued or if different factors are used to determine the same
Index, the Index Number shall be such an Index as the Council and Owner agree
reflects increases in the costs of living in Brisbane. In default of such agreement
such Index will be as determined on the application of either party to the President
of the Queensland Law Society Inc at the relevant time, or his Nominee, acting as
an expert and not as an arbitrator and whose decision shall be conclusive.

"infrastructure charges notice" has the meaning given in the Act.

“Infrastructure Contribution” mean the contribution in lieu of car parking spaces
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 4A
of Schedule 1.

“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 and Applicant 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




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      (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 of the applicant 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

      This Deed is conditional upon the development permit taking effect.

3     INFRASTRUCTURE CONTRIBUTION

3.1   Infrastructure Agreement overrides Development Permit

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




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3.2   Contribution in lieu of off-street parking

      The applicant must pay the Council the greater of:

      (a)   the amount identified in Schedule 2 of this Deed; or

      (b)   the amount calculated in accordance with the formula in Clause 3.3.

3.3   Indexed Infrastructure Contribution in lieu of off-street parking

      The Infrastructure Contribution in lieu of off-street parking payable, identified in
      Schedule 2, shall be indexed annually for a financial year in accordance with the
      following formula:-

      A=BxC
         D

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

      Where B = the Additional Networks Infrastructure Contribution identified in
                  Schedule 2.

      Where C = the Index Number for the March quarter immediately preceding the
                  financial year in which the Infrastructure Contribution is being paid;
                  and

      Where D = the Index Number for the March quarter immediately preceding the
                  financial year upon which the Infrastructure Contribution is issued as
                  stated in Schedule 2.

3.4   Time for payment

      The Infrastructure Contribution in lieu of off-street parking is to be paid before the
      use approved by the Development permit commences.


3.5   Payment to Council

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

3.6   Onsite carparking spaces

      In addition to payment of the infrastructure contribution the applicant shall provide
      the number of car parking spaces on the subject site specified in Item 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.




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5     DEFAULT BY OWNER OR APPLICANT

5.1   Rights of the Council on default

      If the applicant fails to duly perform and fulfil any or all of its obligations under
      Clause 3 the Council may recover from the applicant or the owner 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 applicant or 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.




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7.3   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.

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 applicant 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 applicant or owner of any of the
      provisions of this Deed shall be implied against the Council or be otherwise
      effective unless it is in writing under the hand of the Chief Executive Officer.

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:




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      (a)   as attorney of any party warrants to the other parties that at the date of
            execution that person has not received any notice or information of the
            revocation of the power of attorney appointing that persons; and
      (b)   as an authorised officer, agent or trustee of any party warrants to the other
            parties that at the date of execution that person has full authority to execute
            this deed in that capacity.

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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                               SCHEDULE 1

                               Deed Details

ITEM 1    Date                         The Commencement Date

ITEM 2    Name of Deed                 Infrastructure Deed in respect of payment of
                                       car parking contributions for a development
                                       permit for Material Change of Use for an
                                       Office

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

ITEM 4    applicant                    Andrew Martin
                                       <INSERT ADDRESS OF APPLICANT>

ITEM 4A   owner                        MACMARTIN INVESTMENTSD PTY LTD
                                       ACN 613 605 968
                                       <INSERT ADDRESS OF OWNER>
ITEM 5    Subject Site                 Lot 4 on SP284446
                                       Local Government: Noosa
                                       Unit 4, 216 David Low Way, Peregian Beach

ITEM 6    Special Conditions           The Infrastructure Contribution must be paid
                                       in accordance with clause 3.2 of this deed
                                       <INSERT       ANY     OTHER        SPECIAL
                                       CONDITIONS>
ITEM 7    Development Application      <INSERT APPLICATION/PERMIT NO AND
          and Permit                   DETAILS>

ITEM 8    Number of onsite             0
          carparking to be provided




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1




                                          SCHEDULE 2

                         Contribution in lieu of off-street parking

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

Table 1 Contributions in lieu of off-street parking

                                                                                 Amount Payable
                INFRASTRUCTURE CONTRIBUTION                                    Current at: 2018-2019
                                                                                  Financial Year
Contribution in lieu of off-street parking for 2 car park spaces                                  $24,000.00

                                                         TOTAL =
                                                                                                  $24,000.00
            (Subject to indexation applicable at date of payment)


PAYMENT OF THE INFRASTRUCTURE CONTRIBUTION
   i. The monetary contribution is payable in accordance with this Infrastructure
       Agreement.
  ii. The monetary contribution is payable before the use commences. The contribution
       is to be paid to Noosa Council.
 iii. Methods of payment
                             Cheque or money order to be made payable to: Noosa Council
         Mail
                             PO Box 141, Tewantin, QLD 4565
                             Noosa Council Tewantin office: 8.30 am to 4.30 pm Monday to Friday
         In Person
                             (excludes public holidays)
                             Mastercard or Visa only
         Credit Card         Note: All payments made by credit card will incur a 0.5% surcharge to reflect the
                             cost of fees charged for credit card transactions.
                             Payment by electronic transfer direct to Council’s Bank Account is only
         Direct Bank
                             available by special arrangement. Contact Infrastructure Enquiries:
         Transfer
                             [email protected]
    iv. Please contact Council directly via telephone on: (07) 5329 6211 or 5329 6449 during
         office hours or alternatively via email: [email protected] a minimum of 5
         business days prior to payment of the infrastructure contributions for the current
         indexed amounts applicable at the time of payment.




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1




EXECUTED AS A DEED.

This deed dated this       day of                                2021

BETWEEN        NOOSA SHIRE COUNCIL a Local Government duly constituted under the
               provisions of the Local Government Act 2009
                                                                          (“Council”)
AND            ANDREW MARTIN
                                                                             (“the applicant”)

AND            MACMARTIN INVESTMENTS Pty LTD ACN 613 605 968
                                                                                (“the owner”)

AND            <INSERT NAME OF APPLICANT AND OWNER ACN      >
                                                (“the applicant” and “the owner”)



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



Signed/Executed by the applicant
(If a company In accordance with Section 127 of the Corporations Act 2001)


……………………………………………………                                  ……………………………………………………
(Director/Company Secretary Name)                     (Director Name)


……………………………………………………                                  ……………………………………………………
(Signature)                                           (Signature)


……………………………………………………                                  ……………………………………………………
(Date)                                                (Date)




In the presence of Witness being a Justice of the Peace:
(If a company, a Witness is not required)




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Page 16

1


……………………………………………
(Name)


……………………………………………
(Signature)



Signed/Executed by owner
(If a company, in accordance with Section 127 of the Corporations Act 2001 (Cth))


……………………………………………………                                  ……………………………………………………
(Director/Company Secretary Name)                     (Director Name)


……………………………………………………                                  ……………………………………………………
(Signature)                                           (Signature)


……………………………………………………                                  ……………………………………………………
(Date)                                                (Date)



In the presence of Witness being a Justice of the Peace:
(If a company, a Witness is not required)

……………………………………………
(Name)


……………………………………………
(Signature)




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