Infrastructure Agreement (23689 DA) - Executed 18/7/2011 (Peet No.90 - Greenwood Grove) · 132004.240018

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

BETWEEN Sunshine Coast Regional Council (Council)

AND Peet No. 90 Pty Ltd ACN 117 354 195 (the Owner)
Recitals
A. On 11 September 2006, the former Noosa Shire Council approved a

development application for Development Permit for Material Change of Use
for 174 Dwelling Houses and Reconfiguration of a Lot (3 lots into 174 lots)
[2004/240018(23689DA)] (“the Development”) in relation to land described as
Lot 2 RP 111730, Lot 2 SP 156389 and Lot 24 SP 148814 (“the Land”)
County of Canning, Parish of Maroochy in the State of Queensland at 47 Pine
Street, 99 Garnet Street and 32 Ashgrove Street, Cooroy .

B. On 15 March 2008, Noosa Shire Council was amalgamated with the
Caloundra City Council and the Maroochy Shire Council to form the Sunshine
Coast Regional Council by virtue of section 8(1) of the Local Government
Reform Implementation Regulation 2008.

lon On 25 November 2008, the Council gave a decision notice (the “Approval”),
which changed the Development and which requires, amongst other things,
certain works within Council's road reserve.

D. Stages 1 and 2 of the development have been completed and the balance of
the land is described as Lot 23 on SP 213111, Title Reference 50751436
(‘the subject site”).

E. The owner is the owner of the subject site.

F. The Council has agreed to release the survey plans for stage 3 of the
development subject to the owner entering into this Infrastructure Agreement
pursuant to conditions 65.1.2 and 65.1.3 of the Approval

IT IS AGREED

1 INTERPRETATION

1.1 Name
This agreement is made under Clause 2.

1.2 Commencement
This agreement commences on the Commencement Date.

1.3 Interpretation

(a) In this agreement, unless a contrary intention appears, reference to:
(i) a clause is to a clause in this agreement; and

(ii) the singular includes the plural and vice versa; and

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(b)

(c)

(d)

(e)

()

(9)

(h)

603416211

(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 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; and

(viii) a day is to a Calendar Day.

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

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.

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.

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.

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

An inclusive definition, or an example or 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.

 

 

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(i) All schedules to this agreement form part of this agreement and a
reference to an item is a reference to an item in Schedule 1.

1.4 Definitions
In this agreement:
“Act” means the Sustainable Planning Act 2009.
“Calendar Day” means the period from one midnight to the following one.
“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 when the last party executes this
agreement

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

“Development” means the development of 174 Dwelling Houses and
Reconfiguration of a Lot (3 lots into 174 lots).

“Due date” means 30 June 2012.

“External road works” means the road works referred to in Schedule 1.

“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.

Life of the Development’ means the period for which the Development is
used in accordance with all approved uses and Development Permits

 

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

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

“Lot” has the meaning in the Act.

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1.5

2.1

2.2

3.1

3.2

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

“Owner” of the Subject Site means the person for the time being entitled to
receive the rent for the Subject Site or would be entitled to receive the rent for
it if it were let to a tenant at a rent.

“Planning Scheme” means the planning scheme of the Council.

“Use” has the meaning given in the Act.

Other Expressions

lf a term is not defined in this Infrastructure Agreement 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.
INFRASTRUCTURE AGREEMENT

Application of Act

This Infrastructure Agreement is intended to constitute an infrastructure
agreement under the Act.

Document to bind successors in title

The parties warrant that it is the intention of the parties that the obligations of
the Owner under this agreement will attach to the Subject Site and be binding
on the Owner and the Owner's successors in title in accordance with Section
663 (When infrastructure agreements bind successors in title) of the Act,
except to the extent that any part of the subject Lot is subdivided in
accordance with the Approval and the subdivided Lot/s transferred to the end
uses. .

OBLIGATIONS OF PARTIES

Warranty of Ownership

The Owner warrants that it is, at the time of signing this agreement, the
Owner of the Subject Site

Compliance of Owner

In consideration of the Council agreeing to seal survey plan/s for stage 3 of
the development the Owner shall:-

(a) do all things which by this agreement it has undertaken to do; and

(b) comply with the obligations set out under item 8 of Schedule 1
hereto and the terms of this agreement and

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3.3

3.4

4.2

(c) provide the bond, insurance bond, or trading bank guarantee
referred to in item 8.6 of schedule 1 in a form satisfactory to the
Council

Compliance of Council
In consideration of the owner entering into this agreement and providing the

bond, insurance bond or bank guarantee referred to in clause 3.2(c) hereof,
the Council shall:-

(a) do all things which by this agreement it has undertaken to do and

(b) upon satisfaction of the conditions of the Approval other than
conditions 65.1.2 and 65.1.3 seal the survey plan/s for Stage 3 of
the Approval.

Time for compliance

The owner shall complete the works specified in Schedule 1 item 8 to the
satisfaction of the Council by the due date.

DEFAULT BY OWNER

Rights of the Council on default

If the owner fails to duly perform and fulfill its obligations under clause 3.2
with respect to the completion of the external road works by the due date, the
Council may call upon the cash bond, insurance bond or trading bank
guarantee for the whole of the amount thereby secured to carry out the
external road works.

Prior to Council exercising its rights under clause 4.1.1, Council must give the
owner a Notice particularising the external road works which have not been
completed to its satisfaction (“the Notice”), The Notice must allow the owner
60 days in which to remedy such default.

Should such works not be completed to the Council's satisfaction within the
time specified in clause 4.1.2, the Council shall be entitled to call upon the
cash bond, insurance bond or bank guarantee without further reference to the
owner.

Application of money

The Council may, acting reasonably, apply any sum recovered or received by
it pursuant to Clause 4.1 (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) Completing the external road works; and

(b) reimbursing itself for any costs including administrative and legal costs
reasonably incurred as a result of the default of the owner.

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7.1

7.2

7.3

7.4

8.1

8.2

8.3

8.4

8.5

SERVICE

Service by prepaid post

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

Deemed service

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

Proof of service

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

Form of Notice

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

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

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

MISCELLANEOUS

Payment of costs

The developer shall pay the Council's reasonable legal costs of and incidental
fo the negotiation, preparation and execution of this agreement on a solicitor
own client basis.

Time

Time is, in all cases, of the essence.

Place for payment of monies

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

Waiver

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

Laches and delay

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8.6

8.7

8.8

8.9

8.10

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

Severance

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

Warranty of authority
Any person signing this Infrastructure 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.

Further assurances

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

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

Amendment of agreement

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

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

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

(ii) where relevant the amended Infrastructure Agreement complies
with the requirements of the Act.

8.11 Referral to resolution

If a dispute arises between the parties in respect of any matter set out in this
Agreement then such dispute will be referred for determination by a person
appointed by the President, for the time being, of the Queensland Law
Society Inc. for the purposes of determining the dispute.

8.12 Expert
The person appointed to determine the dispute under clause 8.11 of this

Agreement shall act as an expert and not as an arbitrator, and the
determination will be final and biding on the parties to this Agreement.

 

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EXECUTED AS A DEED
nu
This Infrastructure Agreement dated this !8 day of Guey 2Ot\
BETWEEN

SUNSHINE COAST REGIONAL COUNCIL a Local Government duly constituted
under the provisions of the Loca! Government Act 2009

(“Council”)
AND Peet No. 90 Pty Ltd ACN 117 354 195
(‘the Owner’)
SIGNED AND DELIVERED by ) SS ,
& ‘Fhe-GO for and on behalf of the Sunshine
Coast Regional Council Ln ba
In the presence of, )

DIRECTOR DEVELOPMENT
SERNICES

Witness

Mana Rechmenc

THE COMMON SEAL of Peet No 90 Pty Ltd ACN 117 354 195 in accordance)

 

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SCHEDULE 1

Agreement Details

 

ITEM 1 Date | 2011 |

 

ITEM 2 Name of Document Infrastructure Agreement in respect of external
roadworks proposed in Garnet Street, Cooroy as
part of the Greenwood Grove Estate

ITEM 3 Council
Name of Local Government Sunshine Coast Regional Council

Address of Public Office Cnr Currie and Bury Streets, Nambour in the
State of Queensland
Locked Bag 72, Sunshine Coast Mail Centre

 

 

 

 

QLD 4560
AND
ITEM 4 The Owner
Name Peet No. 90 Pty Ltd (ACN 117 354 195)
(including ACN if a
corporation)
Address
(or registered office if a Level 2, 167 Eagle Street
corporation) BRISBANE QLD 4000
ITEM 5 Road Reserve
Description That part of land within, adjacent to and adjoining

Lot 23 SP213111 identified on Schedule 2 as
Road Reserve..

ITEM 7 Development Permit All Development Permits issued by Council for
the Development of the Subject Site including
future approvals such as Development Permit for
Operational Works

 

 

 

 

 

Item 8 Number Obligation Timing
Sub-item | Special 8.1 The Owner agrees at its own expense to Prior to
8.1 Conditions undertake and construct the full upgrade (external sealing the
collector road standard) of Garnet Street between plans of
Pine Street and Ch340 as shown generally on drawing | survey __ for
number 00072-00-CI-DSK-1000 Rev B dated 18" Stage 3 of
November 2010 prepared by Worley Parsons the
annexed hereto within Schedule 2. Approval.
Sub-ltem 8.2 The Owner agrees at its own expense to Prior to
8.2 undertake and construct temporary road widening of | sealing the
Garnet Street between Ch340 and Ch733 as shown plans of
generally on drawing number 00072-00-Cl-DSK-1000 | survey _ for

 

 

 

 

 

 

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Rev B dated 18 November 2010 prepared by Worley | Stage 3 of
Parsons annexed hereto within Schedule 2. the
Approval
Temporary road widening is to constitute a minimum
8m wide carriageway and include the installation of
flood warning signs and water depth indicators on the
approaches to the creek crossing.
Sub-ltem 8.3. The Owner agrees at its own expense to lodge | Prior to
8.3 an application for a Development Permit for sealing the
Operational Works (and/or amend an existing plans of
Development Approval for Operational Works) to survey for
facilitate works identified in 8.1 & 8.2. Stage 3 of
the
Approval
Sub-ltem 8.4 | The Owner agrees at its own expense to Prior to
8.4 undertake and construct the full upgrade of Garnet sealing of
Street between Ch340 and Ch733 in accordance with | Plans per
Condition 65.1.2 and 65.1.3 of Development Permit stage 4 of
132004.240018.6 and as approved in Operational the
Works Permit 2007/1777. Approval. or
the due date
whichever
shall _ first
occur.
Sub-Item 8.5 The Owner agrees at its own expense to lodge
8.5 an application for a Development Permit for
Operational Works (and/or amend an existing
Development Approval for Operational Works) to
facilitate works identified in 8.4.
Sub-item 8.6 The Owner agrees to provide the Council with | Prior to
8.6 a cash bond, insurance bond or trading bank sealing of
guarantee in the amount of $2,840,931.00 being the Plans per
cost of the structure that is required over Cooroy stage 3 of
Creek as part of the works identified within 8.4. The the
bond, insurance bond or trading bank guarantee is to | Approval.

 

 

be provided to Council in accordance with Noosa
Council's Policy, in a form satisfactory to Council as
security for the performance of the works within the
Road Reserve. The security will be returned to the
owner when the external road works are “on
maintenance”.

 

 

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SCHEDULE 2

External Road Upgrade Drawing No 00072-00-CI-DSK-1000 Rev B dated
Works 18/11/2010

 

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