Details - North Sydney Council...Developer Commitment Deed Details Interpretation – definitions...

Developer Commitment Deed

Details

Interpretation – definitions are at the end of the General terms

Parties Council, Developer and Owner

Council Name North Sydney Council

ABN 32 353 260 317

Address 200 Miller Street, North Sydney NSW 2060

Telephone (02) 9936 8100

Fax (02) 9936 8177

Attention General Manager

Developer Name #insert#

ABN/ACN/ARBN #insert#

Address #insert#

Telephone #insert#

Fax #insert#

Attention #insert#

Owner Name #insert#

ABN/ACN/ARBN #insert#

Address #insert#

Telephone #insert#

Fax #insert#

Attention #insert#

Recitals A The Owner is the registered proprietor of the Land.

B The Land is subject to the LEP. The Council is the consent authority for a development application required to be made in respect of the development of the Land.


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C The Amending LEP provides that the consent authority must not grant consent to certain development of land to which Division 4 of the LEP applies unless the Director General under the EP&A Act has first certified that satisfactory arrangements have been made for railway infrastructure that will provide for the increased demand for railway infrastructure generated by the development.

Railway Contribution Base Amount

the greater of:

(a) $88 per square metre; and

(b) $88 per square metre multiplied by the Current CPI and divided by the Previous CPI.

Payment Details unendorsed bank cheque in favour of “Transport Administration Corporation” and delivered to the Director, Planning and Development Services, North Sydney Council.

Development [#insert short description of the development#]

Land the whole of the land comprised in certificate of title folio identifier [#insert#] and known as [#insert#].

TAC Transport Administration Corporation, a body corporate established under the Transport Administration Act 1988 (NSW).

Railway Contribution Deed

Railway Contribution Deed between Transport Administration Corporation and North Sydney Council dated 27 February 2003

Governing law New South Wales

Date of deed See Signing page


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General terms

1 Railway Contributions

1.1 Amount of Railway Contributions The Railway Contribution is calculated as follows:

RC = AGFA x RCBA

Where:

RC = Railway Contribution;

RCBA = Railway Contribution Base Amount;

AGFA = Additional Gross Floor Area.

If the Railway Contribution would otherwise be less than zero when calculated using the formula above, it will be deemed to be zero.

1.2 Provision of Bank Guarantee On the date of this deed, the Owner must, at its Cost, deliver a Bank Guarantee to the Council for the entire amount of the Railway Contribution.

1.3 Replacement Bank Guarantee (a) Within 10 Business Days after the date of the Development Consent,

the Owner must at its Cost, deliver a Bank Guarantee to the Council for the entire amount of the Railway Contribution calculated having regard to the Additional Gross Floor Area approved under the Development Consent.

(b) On receipt of the Bank Guarantee from the Owner in accordance with clause 1.3(a), the Council will return to the Owner the Bank Guarantee provided to Council under clause 1.2.

1.4 Payment of Railway Contributions The Owner agrees to pay the amount of the Railway Contribution to the Council in full upon the work under the Development Consent being completed such that a Construction Certificate could otherwise be issued in relation to those works, and in any event agrees to make the payment before the issuing of any Construction Certificate in relation to the Development or the Development Consent. The payment is to be made by unendorsed bank cheque drawn as specified in the Details under “Payment Details”.


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1.5 Notice of Payment of Railway Contributions Promptly after receipt of the Railway Contributions from the Owner in accordance with clause 1.4 (“Payment of Railway Contributions”), the Council will provide a Notice of Payment of Railway Contributions to the Owner.

1.6 Claim on Bank Guarantee If the Owner does not comply with clause 1.4 (“Payment of Railway Contributions”):

(a) the Owner is immediately, without notice, in breach of an essential obligation under this deed; and

(b) the Council may call on the Bank Guarantee without notice to the Owner or the Developer.

1.7 Return of Bank Guarantee Without limiting clause 1.3, the Council must promptly return the Bank Guarantee to the Owner:

(a) if the Owner has complied with clause 1.4 (“Payment of Railway Contributions”); or

(b) if the Developer or the Owner withdraws the Development Application by written notice to the Council; or

(c) if the Development Consent is not granted and the Developer and the Owner have notified the Council in writing that they will not be lodging an appeal in relation to that refusal and no appeal has been lodged or commenced; or

(d) if the Development Consent has lapsed in accordance with section 95 of the EP&A Act and the Owner has requested in writing the return of the Bank Guarantee.

1.8 Appointment of certifier The Developer and the Owner each must promptly notify the Council in writing of the name of any “Accredited Certifier” (as defined in the EP&A Act) appointed in relation to the development of the Land.

1.9 Construction Certificate (a) The Developer and the Owner each acknowledge that the grant of a

Construction Certificate in relation to the Development Consent is conditional upon the payment of the Railway Contribution in accordance with this deed.

(b) The Developer and the Owner each agree:

(i) to instruct the Accredited Certifier to not issue the Construction Certificate until a Notice of Payment of Railway


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Contributions has been delivered to the Accredited Certifier; and

(ii) that it will not rely on any Construction Certificate issued in relation to the Development or the Development Consent unless the Railway Contributions have been paid in accordance with clause 1.4 (“Payment of Railway Contributions”).

1.10 Increase to Additional Gross Floor Area The Developer and the Owner must not apply to vary or modify the Development Application or any Development Consent or otherwise make any application which will increase the Additional Gross Floor Area the subject of the Development Application, unless they have delivered a Bank Guarantee to the Council for the increased amount of the Railway Contribution which applies in relation to such variation or application.

1.11 No refund The Council is not required to repay to the Owner, and the Owner is not entitled to a repayment of, the Railway Contributions, except as provided for (and only to the extent provided for) in clause 1.12 (“Refund of Railway Contributions”).

1.12 Refund of Railway Contributions (a) Unless clause 1.12(b) applies, if the Railway Contribution Deed is

terminated and if (and to the extent that) the Council has received any repayment of the Railway Contributions from TAC (“Repaid Railway Contributions”), then the Council agrees to promptly repay those Repaid Railway Contributions to the Owner and each other “owner” who has entered into a “developer commitment deed” with Council proportionately having regard to the amount of the Railway Contribution made by the relevant owner and the amount of the Repaid Railway Contributions paid by the TAC in accordance with the Railway Contribution Deed.

(b) If a Court has ordered the repayment of any amount of Railway Contributions paid by the Owner, and that order has not been stayed and will not be appealed (including by the Council or TAC), and if (and to the extent that) Council has received any repayment of the Repaid Railway Contributions, then the Council agrees to promptly repay those Repaid Railway Contributions to the Owner and each other “owner” who has entered into a “developer commitment deed” with Council so as to give effect to the Court’s order.

(c) Owners are not entitled to receive a payment under both paragraphs (a) and (b).

1.13 No warranty The Council does not represent or warrant that the “Redevelopment Works” (as defined in the Railway Contribution Deed) will be carried out or completed.


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2 Transfer and other dealings

2.1 Prohibited dealings - Owner Prior to the payment to the Council of the Railway Contribution by the Owner, the Owner must not transfer, dispose, assign, or otherwise deal with its right, title and interest in the Land, the Development Application, the Development Consent or this deed unless:

(a) it has obtained the consent of the Council to do so; and

(b) it has complied with clause 2.2 (“Transfer conditions - Owner”).

2.2 Transfer conditions - Owner If the Owner wishes to transfer, dispose, assign or otherwise deal with its right, title and interest in the Land, the Development Application, the Development Consent or this deed prior to the payment of the Railway Contribution by the Owner:

(a) the Owner must satisfy the Council that the proposed purchaser or assignee is respectable and financially capable of complying with the Owner’s obligations under this deed; and

(b) the Owner must ensure that the proposed purchaser or assignee enters into a deed in the form of this Developer Commitment Deed with the Council; and

(c) the Owner and the proposed purchaser or assignee must comply with all the Council’s reasonable requirements including payment of the Council’s reasonable Costs.

2.3 Prohibited dealings - Developer Prior to the payment to the Council of the Railway Contribution by the Owner, the Developer must not transfer, dispose, assign, or otherwise deal with its right, title and interest in the Development Application, the Development Consent or this deed unless:

(a) it has obtained the consent of Council to do so; and

(b) it has complied with clause 2.4 (“Transfer conditions - Developer”).

2.4 Transfer conditions - Developer If the Developer wishes to transfer, dispose, assign or otherwise deal with its right, title and interest in the Development Application, the Development Consent or this deed prior to the payment to Council of the Railway Contribution by the Owner:

(a) the Developer must satisfy the Council that the proposed purchaser or assignee is respectable and financially capable of complying with the Developer’s obligations under this deed; and


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(b) the Developer must ensure that the proposed purchaser or assignee enters into a deed in the form of this Developer Commitment Deed with the Council; and

(c) the Developer and the proposed purchaser or assignee must comply with all the Council’s reasonable requirements including payment of the Council’s reasonable Costs.

2.5 Mortgage by Owner The Owner may not mortgage, charge or otherwise encumber its right, title and interest in the Land unless:

(a) the mortgagee agrees that it and any receiver appointed by it will not enjoy rights greater than those of the Owner;

(b) the mortgagee executes all necessary documents in favour of all relevant parties and in forms reasonably acceptable to such parties agreeing to be bound by the terms of this deed; and

(c) the Owner and the proposed mortgagee must comply with all the Council’s reasonable requirements including payment of the Council’s reasonable Costs.

3 Acknowledgment

3.1 Council capacity The Developer and the Owner each acknowledge and accept that in addition to Council’s obligations under this deed, the Council is also charged with the conduct of the business of the local government of North Sydney.

3.2 Council’s obligations as consent authority The Developer and the Owner each acknowledge that this deed in no way affects Council’s obligations at law to comply with its statutory obligations, including, without limitation, the review of any consents and approvals for the carrying out of any works in respect of the Development Application.

3.3 Agency The parties acknowledge and agree that:

(a) TAC is not Council's agent in respect of any matter in connection with this deed or the Railway Contribution Deed including without limitation the Railway Contributions;

(b) Council is not TAC's agent in respect of any matter in connection with this deed or the Railway Contribution Deed including without limitation the Railway Contributions; and

(c) there is no agency relationship of any nature whatsoever between TAC and Council.


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3.4 Owner responsible The Owner must ensure that the Developer complies with all of the Developer’s obligations under this deed.

3.5 Developer responsible The Developer must ensure that the Owner complies with all of the Owner’s obligations under this deed.

4 Costs

4.1 General Subject to clause 4.2 (“Breach”), each party is liable for its own costs in relation to the negotiation and preparation of this deed.

4.2 Breach The Developer and the Owner each indemnify the Council against any liability or loss arising from, and any Costs incurred in connection with any non-compliance by the Owner or the Developer with its obligations under this deed.

5 Representations and warranties

5.1 Representations and warranties The Developer and the Owner each represent and warrant that:

(a) (power) it has power to enter into this deed and comply with its obligations under the deed; and

(b) (no contravention or exceeding power) this deed does not contravene its constituent documents (if any) or any law or obligation by which it is bound or to which any of its assets are subject, or cause a limitation on its powers or the powers of its officers to be exceeded; and

(c) (authorisations) it has in full force and effect the authorisations necessary for it to enter into this deed to which it is a party, to comply with its obligations and exercise its rights under this deed and to allow this deed to be enforced; and

(d) (validity of obligations) its obligations under this deed are valid and binding and are enforceable against it in accordance with the terms of the deed; and

(e) (benefit) it benefits by entering into this deed to which it is a party; and

(f) (no immunity) does not have immunity from the jurisdiction of a court or from legal process.


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6 Notices

6.1 Form Unless expressly stated otherwise in this deed, all notices, certificates, consents, approvals, waivers and other communications in connection with this deed must be in writing, signed by the sender (if an individual) or an Authorised Officer of the sender and marked for the attention of the person identified in the Details or, if the recipient has notified otherwise, then marked for attention in the way last notified.

6.2 Delivery They must be:

(a) left at the address set out or referred to in the Details; or

(b) sent by prepaid ordinary post (airmail if appropriate) to the address set out or referred to in the Details; or

(c) sent by fax to the fax number set out or referred to in the Details; or

(d) given in any other way permitted by law.

However, if the intended recipient has notified a changed postal address or changed fax number, then the communication must be to that address or number.

6.3 When effective They take effect from the time they are received unless a later time is specified.

6.4 Receipt - post If sent by post, they are taken to be received three days after posting (or seven days after posting if sent to or from a place outside Australia).

6.5 Receipt - fax If sent by fax, they are taken to be received at the time shown in the transmission report as the time that the whole fax was sent.

7 General

7.1 Discretion in exercising rights A party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this deed expressly states otherwise.

7.2 Partial exercising of rights If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later.


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7.3 No liability for loss A party is not liable for loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising a right or remedy under this deed.

7.4 Approvals and consents By giving its approval or consent a party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.

7.5 Conflict of Interest The parties’ rights and remedies under this deed may be exercised even if this involves a conflict of duty or a party has a personal interest in their exercise.

7.6 Remedies cumulative The rights and remedies provided in this deed are in addition to other rights and remedies given by law independently of this deed.

7.7 Rights and obligations are unaffected Rights given to the parties under this deed and the parties’ liabilities under it are not affected by anything which might otherwise affect them by law.

7.8 Variation and waiver A provision of this deed or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.

7.9 Indemnities The indemnities in this deed are continuing obligations, independent from the other obligations of the parties under this deed and continue after this deed ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this deed.

7.10 Further steps The Developer and the Owner each agree, at their own expense, to do anything the Council asks (such as obtaining consents, signing and producing documents and getting documents completed and signed):

(a) to bind the Developer and the Owner each and any other person intended to be bound under this deed;

(b) to show whether the Developer and the Owner are complying with this deed.

7.11 Publicity A party may not make press or other announcements or releases relating to this deed and the transactions the subject of this deed without the approval of the other parties to the form and manner of the announcement or release


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unless and to the extent that the announcement or release is required to be made by the party by law or by a stock exchange.

7.12 Supervening legislation Any present or future legislation which operates to vary the obligations of a party in connection with this deed with the result that another party’s rights, powers or remedies are adversely affected (including, by way of delay or postponement) is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.

7.13 Counterparts This deed may consist of a number of copies, each signed by one or more parties to the agreement. If so, the signed copies are treated as making up the one document.

8 GST

8.1 GST gross up If any party:

(a) reasonably decides that it is liable to pay GST on a supply made to another party (in this clause the “Recipient”) in connection with this deed; and

(b) certifies to the recipient of the supply that it has not priced the supply to include GST,

then the Recipient must pay that party an additional amount equal to that GST.

8.2 Other The parties agree that the Railway Contributions are inclusive of GST.

9 Interpretation

9.1 Definitions These meanings apply unless the contrary intention appears:

Additional Gross Floor Area means:

(a) the Gross Floor Area of those parts of all of the buildings on the Land which may lawfully be used for a Specified Use (including those parts of the buildings which have been approved for use under the Amending LEP) following the grant of Development Consent under the Amending LEP in respect of the relevant Development Application lodged by the Developer (whether or not those buildings have been erected);

less


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(b) the Gross Floor Area of those parts of all of the buildings on the Land which may lawfully be used without further approval for a Specified Use immediately prior to the grant of development consent under the Amending LEP in respect of the relevant Development Application lodged by the Developer,

as determined by Council. For the purpose of calculating the amount of the Bank Guarantee in clause 1.2, it is assumed that the Development Application will be approved in the form submitted as at the date the Bank Guarantee is drawn.

Amending LEP means the amendment to the LEP in respect of land comprised in the North Sydney Centre, as gazetted by the Minister on 28 February 2003.

Authorised Deposit-Taking Institution has the meaning given to it in the Banking Act 1959 (Commonwealth).

Bank Guarantee means an unconditional bank guarantee issued by an Authorised Deposit-Taking Institution to secure the payment to the Council of the Railway Contributions by the Owner.

Commercial Premises has the meaning given to that term in the LEP.

Construction Certificate has the same meaning given to that term in the EP&A Act.

Consumer Price Index means the index published by the Australian Statistician known as the All Groups (Sydney) or the index substituted for it by the Australian Statistician.

Costs includes costs, charges and expenses, including those incurred in connection with advisers.

Council means the person or persons so described in the Details and includes their successors and assigns.

Current CPI means the Consumer Price Index number for the quarter ending immediately before the date of this deed.

Details means the section of this deed headed “Details”.

Developer means the person or persons so described in the Details and includes their successors and assigns.

Development means the works so described in the Details.

Development Application means a development application lodged by the Developer with the Council in relation to the carrying out of the Development, and includes any variation to any development application and any application for modification of any development consent.

Development Consent means any development consent granted in relation to the Development Application.


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EP&A Act means the Environmental Planning and Assessment Act 1979 (NSW).

Gross Floor Area has the meaning given to that term in the LEP.

GST has the same meaning as in the GST Law.

GST Law has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cwlth) and any other Act or regulation relating to the imposition or administration of GST.

Hotel has the meaning given to that term in the LEP.

Land means the land so described in the Details.

LEP means the North Sydney Local Environmental Plan, as amended from time to time.

Motel has the meaning given to that term in the LEP.

North Sydney Centre has the meaning given to that term in the LEP.

Notice of Payment of Railway Contributions means a notice in the form of schedule 1.

Owner means the person or persons so described in the Details, and includes their successors and assigns. If there is more than one, then a reference to “Owner” is a reference to them jointly and to each of them severally.

Previous CPI means the Consumer Price Index number for the quarter ending immediately before 27 February 2003.

Railway Contribution means the amount of railway contributions payable by the Owner to the Council in relation to the Development Application calculated in accordance with clause 1.1 (“Amount of Railway Contributions”).

Railway Contribution Deed means the deed so described in the Details.

Railway Contribution Base Amount has the meaning given to that term in the Details.

Recreation Facility has the meaning given to that term in the LEP.

Refreshment Room has the meaning given to that term in the LEP.

Serviced Apartment has the meaning given to that term in the LEP.

Shop has the meaning given to that term in the LEP.

Showroom has the meaning given to that term in the LEP.

Specified Use means:

(a) Commercial Premises;


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(b) Hotel;

(c) Shop;

(d) Motel;

(e) Serviced Apartment;

(f) Take-away Food Shop;

(g) Showroom;

(h) Refreshment Room; and

(i) Recreation Facility.

TAC means the person or persons so described in the Details and includes their successors and assigns.

Take-away Food Shop has the meaning given to that term in the LEP.

9.2 References to certain general terms Unless the contrary intention appears, a reference in this deed to:

(a) a group of persons or things is a reference to any two or more of them jointly and to each of them individually;

(b) an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them individually;

(c) an agreement, representation or warranty by two or more persons binds them jointly and each of them individually;

(d) anything (including an amount) is a reference to the whole and each part of it;

(e) a document (including this deed) includes any variation or replacement of it;

(f) law means common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);

(g) an accounting term is a reference to that term as it is used in accounting standards under the Corporations Act, or, if not inconsistent with those standards, in accounting principles and practices generally accepted in Australia;

(h) Australian dollars, dollars, A$ or $ is a reference to the lawful currency of Australia;


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(i) the word “person” includes an individual, a firm, a body corporate, an unincorporated association and an authority;

(j) a particular person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;

(k) the words “including”, “for example” or “such as” when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;

(l) the Corporations Act is a reference to the Corporations Act 2001 (Cwlth).

9.3 Number The singular includes the plural and vice versa.

9.4 Headings Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this deed.

EXECUTED as a deed


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Schedule 1 Notice of Payment of Railway Contributions To: <Insert name of Owner> (the “Owner”)

<Insert address of Owner> Developer Commitment Deed between North Sydney Council and <Insert name of Owner> and <Insert name of Developer> dated <insert date> (“Developer Commitment Deed”) Development Application No. <Insert> Date: North Sydney Council confirms receipt of $<insert amount> in payment of the Owner’s obligation to pay Railway Contributions under the Developer Commitment Deed. Enclosed is the Bank Guarantee.

Capitalised terms not defined in this notice have the meaning given to them in the Developer Commitment Deed.


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Signing page

DATED:______________________ Insert appropriate execution clauses THE COMMON SEAL of NORTH SYDNEY COUNCIL is duly affixed pursuant to a resolution of the Council at its meeting held on 24 February 2003: ............................................................Signature of witness Genia McCaffery Mayor 200 Miller Street North Sydney

) ) ) )

.............................................................Signature on behalf of North Sydney Council Penny Holloway General Manager


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Developer Commitment Deed Dated

North Sydney Council (“Council”) [#insert name#] (“Developer”) [#insert name#] (“Owner”) North Sydney Council 200 Miller Street North Sydney NSW 2060 T +61 2 9936 8100 F +61 2 9936 8177 DX 10587 North Sydney


Contents

Details 1 General terms 3

1 Railway Contributions 3 1.1 Amount of Railway Contributions 3 1.2 Provision of Bank Guarantee 3 1.3 Payment of Railway Contributions 3 1.4 Notice of Payment of Railway Contributions 4 1.5 Claim on Bank Guarantee 4 1.6 Return of Bank Guarantee 4 1.7 Appointment of certifier 4 1.8 Construction Certificate 4 1.9 Increase to Additional Gross Floor Area 5 1.10 Refund of Railway Contributions 5

2 Transfer and other dealings 6 2.1 Prohibited dealings - Owner 6 2.2 Transfer conditions - Owner 6 2.3 Prohibited dealings - Developer 6 2.4 Transfer conditions - Developer 6

3 Acknowledgment 7 3.1 Council capacity 7 3.2 Council’s obligations as consent authority 7 3.3 Agency 7 3.4 Owner responsible 8

4 Costs 8 4.1 General 8 4.2 Breach 8

5 Representations and warranties 8 5.1 Representations and warranties 8

6 Notices 9 6.1 Form 9 6.2 Delivery 9 6.3 When effective 9 6.4 Receipt - post 9 6.5 Receipt - fax 9

7 General 9 7.1 Discretion in exercising rights 9 7.2 Partial exercising of rights 9 7.3 No liability for loss 10 7.4 Approvals and consents 10 7.5 Conflict of Interest 10


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7.6 Remedies cumulative 10 7.7 Rights and obligations are unaffected 10 7.8 Variation and waiver 10 7.9 Indemnities 10 7.10 Further steps 10 7.11 Publicity 10 7.12 Supervening legislation 11 7.13 Counterparts 11

8 GST 11 8.1 GST gross up 11 8.2 Other 11

9 Interpretation 11 9.1 Definitions 11 9.2 References to certain general terms 14 9.3 Number 15 9.4 Headings 15 Schedule 1 16 Signing page 17


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