units 39-41/1a coulson street, erskineville nsw 2043 - … · for: units 39-41/1a coulson street,...

21920904.2 CAR CAR

PLANNING AGREEMENT

The Council of the City of Sydney

and

Erskine 3 FCP Pty Ltd

For: Units 39-41/1A Coulson Street, Erskineville

The Council of the City of Sydney Town Hall House 456 Kent Street SYDNEY NSW 2000

2 Planning Agreement 21920904.2 CAR CAR

TABLE OF CONTENTS 1. INTERPRETATION .................................................................................................... 32. OPERATION AND APPLICATION OF THIS AGREEMENT ................................................... 83. APPLICATION OF SECTION 94, 94A AND 94EF OF THE ACT ............................................ 84. CONTRIBUTIONS ..................................................................................................... 85. ENFORCEMENT ...................................................................................................... 106. REGISTRATION ..................................................................................................... 117. APPROVAL OF DEVELOPER’S WORKS ........................................................................ 138. FINAL DESIGN OF THE DEVELOPER’S WORKS ............................................................ 149. CONSTRUCTION OF DEVELOPER’S WORKS ................................................................ 1510. DEFECTS LIABILITY PERIOD .................................................................................... 1711. EXPENDITURE BY THE CITY ..................................................................................... 1812. DISPUTE RESOLUTION ........................................................................................... 1813. GST ..................................................................................................................... 1914. ASSIGNMENT AND NOVATION ................................................................................. 2015. CAPACITY ............................................................................................................. 2116. GENERAL PROVISIONS ........................................................................................... 22SCHEDULE 1 .................................................................................................................... 25SCHEDULE 2 .................................................................................................................... 26SCHEDULE 3 .................................................................................................................... 28SCHEDULE 4 .................................................................................................................... 29SCHEDULE 5 .................................................................................................................... 31SCHEDULE 6 .................................................................................................................... 34

3 Planning Agreement

PLANNING AGREEMENT

THIS AGREEMENT is dated

PARTIES

(1) THE COUNCIL OF THE CITY OF SYDNEY ABN 22 636 550 790 of Town Hall House, 465 Kent Street, SYDNEY NSW 2000 (City), and

(2) ERSKIN 3 FCP PTY LTD (ACN 167 066 024) of Unit 4.09, 50 Holt Street, Surry Hills NSW 2010 (Developer)

BACKGROUND

A. The Developer is the owner of the Land.

B. The Developer has offered to enter into this Agreement to provide the Contributions in respect of the Development of the Land.

C. This Agreement constitutes an agreement between the Developer and the City, that the Developer will provide the Contributions in respect of the Development of the Land on the terms and conditions contained in this Agreement.

THE PARTIES AGREE AS FOLLOWS:

1. INTERPRETATION

1.1 In this Agreement, unless the context otherwise requires:

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

Address for Service means the address of each party appearing in Schedule 1 or any new address notified by any part to all other parties as its new Address for Service.

Approval means any approvals, consents, certificates, permits, endorsements, licences, conditions or requirements (and any modifications or variations to them) which may be required by law or an Authority.

Authority means any Federal, State or local government or semi-governmental, statutory, judicial or public person, instrumentality or department and includes a certifier accredited under section 109T of the Act.

Bond means a documentary performance bond which must be denominated in Australian dollars and be an unconditional undertaking with all the following requirements. It must:

(a) be signed and issued by an Australian Prudential Regulation Authority (APRA) regulated authorised deposit taking institution or an insurer authorised by APRA to conduct new or renewal insurance business in Australia;

(b) have at all times an investment grade security rating from an industry recognised rating agency of at least:

(i) BBB + (Standard & Poors and Fitch); or

(ii) Baa 1 (Moodys); or

(iii) bbb (Bests);

(c) be issued on behalf of the Developer;


(d) have no expiry or end date;

(e) name the beneficiary as “Council of the City of Sydney”.

Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.

City’s Representative means the person specified in Schedule 1 who is duly authorised to give approval under this Agreement or such other person as notified by the City.

City’s Works means works of the nature set out in Schedule 8 to be completed by the City and includes any application fees, design development costs, other consultancy costs (such as expert heritage, planning, traffic or other advice), land acquisition costs, survey costs, construction costs, relating to the design, implementation and (where relevant) dedication of the City’s Works.

Completion means the stage in the construction of the Developer’s Works when, in the reasonable discretion of the City’s Representative and notified under clause 9.5, the Developer’s Works are complete except for minor omissions and minor defects which are non-essential and

(a) which do not prevent the Developer’s Works from being reasonably capable of being used for their intended purposes;

(b) which the City determines the Developer has reasonable grounds for not promptly rectifying; and

(c) the rectification of which will not prejudice the convenient use of the Developer’s Works.

Completion Date means the date or dates referred to in the “Timing” column in clause 1.1 of Schedule 4.

Construction Certificate has the same meaning as in the Act.

Construction Costs means the costs of and directly attributable to the performance of the Developer’s Work including:

(a) preparation of design drawings for the relevant works (but excluding costs of or attributable to the design of the remainder of the Development);

(b) geotechnical, engineering or other advice relating solely to the Developer’s Work

(c) cost of materials used or installed (as the case may be) as part of the Developer’s Work; and

(d) labour, equipment hire, and other costs directly associated with the excavation, remediation to the relevant standard, and construction of the Developer’s Works.

but does not include costs of project preliminaries, contingencies, project management fees, bank guarantee fees, financing costs and other costs which may be associated with the delivery of the Development.

Contributions mean the aggregate of:

(d) Contribution Land;

(e) Public Benefits; and


(f) Monetary Contribution,

to be provided by the Developer in accordance with this Agreement.

Contribution Land means the land to be dedicated by the Developer as described in Table 2 of Schedule 4 and shown on the plans comprising Schedule 7.

Defect means any error, omission, shrinkage, blemish in appearance or other fault in the Developer's Works caused by the Developer, its employees, agents or contractors which prevents the Developer's Works from being reasonably capable of being used for their intended purpose but excludes any damage caused to the Developer’s Works by a third party.

Defect Liability Period means the period of 12 months from the date on which the Developer’s Works reach Completion.

Developer’s Works means the works described in Schedule 5, as refined and developed in accordance with this Agreement.

Development means the development described in paragraph 2 of Schedule 3.

Development Application means:

(a) development application numbered D/2014/1703;

(b) any subsequent development application in respect of the whole, or any part of the Land, reasonably necessary to give consent to the Developer’s Works and to allow the completion of the Development; and

(c) includes all plans, reports, models, photomontages, material boards, (as amended or supplemented) submitted to the consent authority prior to the determination of that Development Application and all modifications made to the relevant development consent made under section 96 of the Act.

Development Consent means the consent granted by the City to the Development Application including all modifications made under s.96 of the Act.

Explanatory Note means the note exhibited with a copy of this Agreement when this Agreement is made available for inspection by the public pursuant to the Act, as required by the Regulation.

General Register of Agreements means the land register maintained under the Conveyancing Act 1919 (NSW) and so titled.

GST means the same as in the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Guarantee means a Bond or one or more unconditional bank guarantees, unlimited in time, issued by a bank licensed to carry on business in Australia that is:

(d) in favour of the City;

(e) for the Guarantee Amounts; and

(f) on such other terms and conditions as the City may approve from time to time.

Guarantee Amount means the amounts specified in paragraph 3 of Schedule 3 in respect of the Development and as varied from time to time in accordance with this Agreement.


Land means the land described in Schedule 3 of this Agreement.

LEP means the Sydney Local Environmental Plan 2012.

Monetary Contribution means the amount set out in Table 1 of Schedule 4 (indexed in accordance with clause 1.2 of Schedule 4) to be paid by the Developer to the City in accordance with this Agreement.

Occupation Certificate has the same meaning as in the Act and includes an interim Occupation Certificate.

Permitted Encumbrances means any reasonable easements for drainage to benefit adjoining land, and other encumbrances or easements that may be reasonably required and agreed between the parties.

Plan means the plans of the Contribution Land at Schedule 7.

Plan of Subdivision means:

(a) a registered plan of subdivision under Division 3 of Part 23 of the Conveyancing Act 1919 (NSW);

(b) a strata plan within the meaning of the Strata Schemes (Freehold Development) Act 1973 (NSW);

(c) any form of dealing required by an Authority or the Developer to be registered with a plan of subdivision or strata plan regarding the creation of easements, covenants or other obligations.

Public Benefits means the public benefits identified in Table 3 of Schedule 4 which are to be provided as a result of the Developer’s Works.

Quantity Surveyor means a duly qualified quantity surveyor of at least five (5) years experience in the assessment of building materials and construction costs.

Quantity Surveyor’s Assessment means an assessment by an independent quantity surveyor of the actual or likely Construction Cost (as the case may be) to the reasonable satisfaction of the City.

RAP means the Remediation Action Plan for units 39-43 1A Coulson Street, Erskineville NSW, Report E22031 AC RAP Rev 3 29 October 2014 by Environmental Earth Investigations.

Real Property Act means the Real Property Act 1900 (NSW).

Register means the Torrens title register maintained under the Real Property Act.

Registrar-General means the Registrar General who maintains the Register.

Regulation means the Environmental Planning and Assessment Regulation 2000 (NSW).

Related Entity has the same meaning as in the Corporations Act 2001 (Cth).

Remediation has it meaning under the Contaminated Lands Management Act 1997 No.140 (NSW).

S94 Contributions are the contributions that may be imposed in any development consent by a consent authority pursuant to sections 94 and 94A of the Act.


Site Auditor has it meaning under the Contaminated Lands Management Act 1997 No.140 (NSW).

Standards means the policies, procedures and standards for carrying out of the Developer’s Works identified in Schedule 6.

Tax means a tax, duty (including stamp duty and any other transaction duty), levy, impost, charge, fee (including a registration fee) together with all interest, penalties, fines and costs concerning them.

1.2 Rules for interpreting this Agreement

Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this Agreement, except where the context makes it clear that a rule is not intended to apply.

(a) A reference to:

(i) a legislative provision or legislation (including subordinate legislation) is to that provision or legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

(ii) a document (including this document) or agreement, or a provision of a document (including this document) or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated;

(iii) a party to this document or to any other document or agreement includes a permitted substitute or a permitted assign of that party;

(iv) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and

(v) anything (including a right, obligation or concept) includes each part of it.

(b) A singular word includes the plural, and vice versa.

(c) A word which suggests one gender includes the other genders.

(d) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

(e) If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.

(f) The words subsidiary, holding company and related body corporate have the same meanings as in the Corporations Act.

(g) A reference to dollars or $ is to an amount in Australian currency.

(h) A reference to this document includes the agreement recorded by this document.

(i) Words defined in the GST Act have the same meaning in clauses about GST.


1.3 This Agreement is not to be interpreted against the interests of a party merely because that party proposed this document or some provision in it or because that party relies on a provision of this document to protect itself.

2. OPERATION AND APPLICATION OF THIS AGREEMENT

2.1 Operation

The provisions of this Agreement, other than clause 6 will commence upon the date of the execution of this Agreement by all parties.

2.2 Planning agreement under the Act

This Agreement constitutes a planning agreement within the meaning of section 93F of the Act.

2.3 Application

This Agreement applies to:

(a) the Land; and

(b) the Development.

3. APPLICATION OF SECTION 94, 94A AND 94EF OF THE ACT

3.1 Application of sections 94, 94A and 94EF of the Act

The application of sections 94, 94A and 94EF of the Act are excluded to the extent stated in Schedule 2.

3.2 Scope

This Agreement does not include mechanisms for the payment of, and does not in any way reduce, offset or negate, the Developer’s obligations to pay monies under:

(a) section 94 or 94A of the Act;

(b) any other statute or instrument that may apply to the Land or to any part of the Development.

4. CONTRIBUTIONS

4.1 Developer to provide Contributions

The Developer undertakes to provide to the City the Contributions in accordance with the provisions of this Agreement.

4.2 Acknowledgement

(a) The parties acknowledge and agree that, subject to the provisions of section 93F of the Act and this Agreement:

(b) the City has no obligation to use or expend the Contributions for a particular purpose and has no obligation to repay the Contributions; and

(c) in circumstances where the Contributions is transferred to any Authority, the City has not made any representation or warranty that the Contributions will or must be used for a particular purpose by that Authority.


4.3 Contribution Land

(a) The Developer must, at no cost to the City, carry out all steps required to dedicate the Contribution Land in accordance with the timing identified in column 2 of Table 2 of Schedule 4, free of any encumbrances or easement (other than Permitted Encumbrances), to the City (including making any necessary subdivision application and registering the Plan of Subdivision with the LPI).

(b) The Developer must comply with any directions by the City in respect of the dedication of the Contribution Land to the City.

(c) No less than 10 Business Days before the timing identified in Column 2 of Table 2 of 4, the Developer must at its cost and risk:

(i) prepare all Applications and obtain all Approvals necessary to:

(A) subdivide the Land by one or more Plans of Subdivision to separate the Contribution Land from the Land (Relevant Subdivision); and

(B) create such easements, restrictions on use and covenants as agreed by the City and the Developer (both acting reasonably), as being necessary or usual in the circumstances for drainage and services and to permit and promote public access to the Contribution Land, which easements, restrictions on use or covenants must be registered at or about the same time as the relevant plan of subdivision (Relevant Easements);

(ii) comply with all conditions of all such Approvals; and

(iii) procure Land and Property Information NSW to register the relevant documentation and plans to create the Relevant Subdivision and register the Relevant Easements consistent with all such Approvals.

(d) The Developer agrees that prior to the Contribution Land being transferred to the City, the Developer must, at its own cost and risk:

(i) remediate the Contribution Land as required by:

(A) the RAP; and

(B) City: and

(ii) submit to the City a site audit statement from a Site Auditor that states that the Contribution Land is suitable to be used as a pedestrian through-site link.

4.4 Acquisition

(a) If the Developer does not transfer or grant to the City the interests in land as required by this Agreement (including the transfer of the Contribution Land to the City), the Developer confers on the City an irrevocable option to purchase the Contribution Land and any interests for the amount of $1.00.

(b) Except as otherwise agreed between the Developer and the City, the Developer must ensure that the Contribution Land is free of all Encumbrances (other than Permitted Encumbrances) and affectations (including any charge or liability for rates, taxes and charges), on the date that the Developer is liable to transfer the Contribution Land to the City in accordance with clause 4.3.


(c) The Developer indemnifies and keeps indemnified the City against all claims made against the City as a result of any acquisition by the City of the whole or any part of the relevant interest in land under clause 4.3.

(d) The Developer must pay the City, promptly on demand, an amount equivalent to all reasonable costs and legal costs incurred by the City acquiring the whole or any part of the relevant interest in land where the Developer is in breach of clause 4.3 or this clause 4.4.

4.5 Payment of Monetary Contribution

(a) The Developer must pay the Monetary Contribution in the manner described in Table 1 of Schedule 4.

(b) The City must apply the Monetary Contribution (and any part of it) to any of the City’s Works identified in Schedule 8 to this Agreement.

5. ENFORCEMENT

5.1 Developer to provide security

(a) The Developer must provide a Guarantee to the City in accordance with this clause 5 and Schedule 3.

(b) The parties agree that the provision of the Guarantee and this clause 5 constitute the security for the purposes of this Agreement.

5.2 Rights and remedies of the City

(a) The Developer expressly acknowledges and agrees that the City may make an appropriation from the Guarantee in such amount as the City (acting reasonably) thinks appropriate if:

(i) the Developer does not submit the construction design for the Developer’s Works to the City in accordance with clause 7.2, but only after clause 7.4(b) has been complied with by the City;

(ii) the detailed designs for the balance of the Developer's Works are not finalised between the parties within 12 months of the date of issue of a Construction Certificate that approves the construction of any structures above the ground floor of the Development;

(iii) the Developer's Works do not reach Completion within 60 months of the date of issue of the first Construction Certificate in respect of the Development (or such later time as agreed between the parties in writing);

(iv) the Developer fails to comply with clause 4.5 (Payment of Monetary Contribution; or

(v) the City in exercising its powers under this Agreement incurs expense or liability.

(b) The amount appropriated by the City under paragraph (a) must be applied only towards:

(i) the costs and expenses incurred by the City rectifying any default by the Developer under this Agreement; or

(ii) carrying out the Developer's Works; or


(iii) in carrying out any other works to achieve the Public Benefits as the City considers appropriate.

5.3 No limitation of obligations

The provision of a Guarantee does not:

(a) relieve the Developer from any of its obligations under any other provision of this Agreement; or

(b) limit the right of the City to recover from the Developer in full all money payable to the City under this Agreement (other than money that has already been appropriated from the Guarantee), including without limitation, interest on any such amounts or damages or other losses incurred by the City.

5.4 Top up and Release of Guarantees

(a) Subject to clause 5.4(b), if the City calls upon the Guarantee in accordance with this clause 5 then the Developer must immediately provide to the City a replacement Guarantee to ensure that, at all times until the Guarantee is released in accordance with clause 5.4(b), the City is in possession of a Guarantee for a face value equivalent to the Guarantee Amount.

(b) Subject to clause 10.2, if the monies secured by the Guarantee have not been expended and the monies accounted for in accordance with clause 5.2:

(i) upon payment of the Monetary Contribution the Developer will promptly provide the City with a replacement Guarantee for the amount of $1,951,574 (Developer’s Works Guarantee); and

(ii) on the completion of the Developer’s Works the City will promptly return the Developer’s Works Guarantee to the Developer.

6. REGISTRATION

6.1 Registration of Agreement

(a) The Developer agrees to promptly do all things that are necessary for the City to procure the registration of this Agreement in the relevant folio of the Register for the Land in accordance with section 93H of the Act and in accordance with this clause 6.1.

(b) The Developer warrants that it has obtained all consents to the registration of this Agreement on the title to the Land as required by Land and Property Information.

(c) The Developer must within 20 Business Days of being notified by the City that this Agreement has commenced under clause 2.1, produce to the City:

(i) any letters of consent necessary for the registration of this Agreement and any other documents that may be required by the Registrar-General;

(ii) a copy of the production slip number as evidence that the certificate of title has been produced to Land and Property Information for the purpose of the registration of the Agreement; and

(iii) a bank cheque for the registration fees payable in relation to the registration of this Agreement on the title to the Land.

(d) The Developer must promptly comply with any requisitions that may be raised with regard to registration of the Agreement from Land and Property Information.


(e) Subject to clause 6.1(b), 6.1(c) and clause 6.4, the City will register this Agreement on the relevant folio of the Register for the Land.

(f) The City will notify the Developer following registration of the Agreement by the City and forward the Developer’s copy of the Agreement to it.

6.2 Release and discharge of Agreement by the City

The City must promptly do all things reasonably required by the Developer to release and discharge this Agreement (such that the Agreement is no longer registered by the Registrar-General under section 93H of the Act in relation to the Land) upon the earlier of:

(a) the issuing of the first Occupation Certificate in respect of the Land; or

(b) termination of this agreement under clause 15; or

(c) the Developer having provided all of the Contributions in accordance with this Agreement.

6.3 Interest in Land

The Developer represents and warrants that it is:

(a) the owner of the Land; and

(b) legally entitled to obtain all consents and approvals to assist, cooperate and to otherwise do all things necessary for the Developer to comply with its obligations under clause 5.4.

6.4 Caveat

(a) Without limiting any other provision of this Agreement, after the date referred to in clause 2.1 and until such time as the registration of this Agreement is completed, the Developer agrees that City may, at any time, lodge a caveat over the Land precluding any dealing which is inconsistent with this Agreement.

(b) If the City lodges a caveat in accordance with clause 6.4(a), then the City must immediately do all things reasonably required to ensure that the caveat does not prevent or delay the registration of:

(i) this Agreement;

(ii) any plan of consolidation or subdivision contemplated, required or permitted under this Agreement or any Development Consent;

(iii) any other dealing contemplated, required or permitted under this Agreement or any Development Consent; and

(iv) the transfer of any part of the Land to a related body corporate of the Developer or a trust or fund of which a related body corporate of the Developer is trustee, manager or responsible entity.

(c) The City must promptly do all things reasonably required to remove the caveat from the titles of the Land once this Agreement has been registered on the titles of the Land.


7. APPROVAL OF DEVELOPER’S WORKS

7.1 Definition of Developer’s Works

The parties agree that the works described in Schedule 5 comprise the Developer’s Works for the purposes of this Agreement. The parties acknowledge and agree that further design detail and refinement are/may be necessary, having regard to the following:

(a) the extent to which the design of any part of the Developer’s Works have been completed to the reasonable satisfaction of City (in its capacity as a party to this Agreement and not as consent authority) at the date of execution of this Agreement;

(b) conditions reasonably affecting the Developer’s Works which were not reasonably capable of identification on or before the date of this Agreement;

(c) the extent of any design refinement that may be identified in Schedule 5 and Schedule 6;

(d) to take into account a modification to any Development Consent made and approved under section 96 of the Act or any other Development Consent granted in respect of the Developer’s Works;

(e) to take into account the requirements of the Sydney Traffic Committee made in respect of any traffic calming measures, roadworks, medians, road widths, parking restrictions, traffic signage and lane alignments; and

(f) to accommodate the Standards in accordance with the reasonable requirements of the City.

7.2 Developer to prepare and submit

(a) The Developer must prepare the detailed description, including design drawings, for the Developer’s Works in accordance with the Standards and requirements set out in Schedule 5 , and submit it to the City for approval no later than three months (or such other time as the parties may agree) prior to the date that the Developer makes an application for the relevant Construction Certificate for the Developer’s Works.

(b) The City’s approval referred to in clause 7.2(a) is not to be unreasonably withheld.

7.3 Notice of plans

The City must promptly (and in any event within 25 Business Days of submission) give the Developer notice whether or not the design drawings and description of the Developer's Works prepared under clause 7.2(a) are satisfactory. If the design or description are not satisfactory having regard to the Standards, then the City must identify the further information, or modifications, (as the case may be) which are required so that the Developer’s Works comply with the Standards and Schedule 5. The Developer must promptly amend the proposed design to take into account the comments made by the City under this clause. The City must act reasonably in relation to this clause.

7.4 If the Developer does not prepare plans for the Developer’s Works

(a) If the Developer:

(i) does not prepare plans in accordance with clause 7.2(a) or 7.3; or

(ii) does not, within 60 Business Days of the issue of those comments under clause 7.3, amend the plans to take into account the comments made by


the City so that the Developer’s Works comply with the Standards and Schedule 5,

then, subject to clause 7.4(b), the City may make an appropriation from the Guarantee for the purposes of carrying out works of the kind contemplated by this Agreement.

(b) Before exercising the right conferred in clause 7.4(a) the City must:

(i) give notice to the Developer to rectify the non-compliance with clauses 7.2, 7.3 and 7.4(a)(ii) within 10 Business Days of the non-compliance; and

(ii) allow the Developer to rectify the non-compliance with clauses 7.2, 7.3 and 7.4(a)(ii) within 20 Business Days of receipt of the notice referred to in clause 7.4(b)(i).

(c) If the City makes an appropriation under this clause 7.4, the Developer grants the City a licence for such period as is necessary for the City to access the Land to carry out, or procure the carrying out, of the Developer’s Works.

7.5 No reduction in scope

The Developer acknowledges and agrees that if the design and construction of the Developer’s Works exceed the Attributed Value, then the scope of the Developer’s Works may not be reduced.

8. FINAL DESIGN OF THE DEVELOPER’S WORKS

8.1 Preparation of plans and specifications

The Developer must complete construction drawings in accordance with the design developed and approved by the City under clause 7.

8.2 Approval or variation by the City

The City, acting reasonably, may, by written notice to the Developer, approve, vary or direct the Developer to vary the construction design drawings for the Developer’s Works so as to reflect:

(a) the Standards;

(b) a deviation or discrepancy from the plans approved under clause 7;

(c) any standards, or specifications for the material selection or methodology, adopted by City from time to time, provided that any direction given under this clause 8.2(c) does not materially increase:

(i) the cost of that element of the Developer’s Works (where a material increase is an increase in cost of 10% or more); or

(ii) the complexity of implementation in a manner which may lead to significant delay in the completion of the balance of the work approved under any relevant Development Consent.


8.3 Directions by the City

Within 20 Business Days of receiving a notice from City under the terms of clause 8.2, the Developer must:

(a) to the extent practicable and using reasonable endeavours, comply with any direction in respect of the design and implementation of the Developer’s Works; or

(b) if the determination is considered to be unreasonable, or impracticable, notify a dispute with that determination in accordance with clause 12 of this Agreement.

9. CONSTRUCTION OF DEVELOPER’S WORKS

9.1 Insurance

The Developer must from the commencement of the Developer’s Works:

(a) maintain public liability insurance, with an insurer approved by the City acting reasonably, with the City identified as an interested party, for an amount not less than $20,000,000 covering all aspects of the Developer’s Works and submit a copy of the certificate of insurance to the City before the commencement of the construction of the Developer’s Works;

(b) maintain all other reasonably necessary and prudent insurance policies in respect of the Developer’s Works including:

(i) construction insurance in relation to the Developer’s Works;

(ii) insurance against death or injury to persons employed or otherwise engaged in relation to the undertaking of the Developer’s Works; and

(iii) any other insurances required at law; and

(c) maintain the insurances in clauses 9.1(a) and 9.1(b) until the expiration of the Defects Liability Period.

9.2 Approvals and consents

(a) The Developer must (at its cost) obtain all relevant approvals and consents for the Developer’s Works whether from the City or any other relevant Authority, including any necessary road opening permit.

(b) Before commencing the Developer’s Works, the Developer must give to the City copies of all approvals and consents for the Developer’s Works (other than any Development Consent).

9.3 Construction work

The Developer must, at its cost:

(a) carry out and complete the Developer’s Works in accordance with all approvals and consents relating to the Developer’s Works (including the approval by the City of plans and any other information submitted under this Agreement);

(b) ensure that all Developer’s Works are constructed in a good and workmanlike manner, in accordance with the plans approved under this Agreement so that they are structurally sound, fit for purpose, and suitable for their intended use;


(c) promptly advise the City’s Representative of any significant delays which it experiences in completing the Developer’s Works; and

(d) comply with any reasonable directions from the City in respect of the construction of the Developer's Works.

9.4 Inspection of Developer’s Works

(a) The City as a party to this Agreement and not as an authority may (but is not obliged to):

(i) inspect the Developer's Works during the course of construction at reasonable times and on reasonable notice; and

(ii) notify the Developer's representative in good faith of any material or significant defect, error or omission relating to the construction or installation of the Developer's Works identified during or as the result of such inspection.

(b) The parties expressly agree that any failure to identify a Defect, error and omission, will not be construed as amounting to an acceptance by the City of that Defect, error or omission.

9.5 Developer’s Works Completion

When, in the opinion of the Developer, the Developer's Works have reached completion, the Developer must notify the City in writing, and must include in that notice:

(a) a statement from the person with direct responsibility carriage and supervision of that work that in their opinion the Developer's Works have reached completion;

(b) copies of any certification, warranties, guarantees, maintenance information or other material reasonably required for the ongoing repair, maintenance, or servicing (as the case may be) of any part of the Developer's Work;

(c) at least three (3) sets of the “as built” drawings of the Developer's Work, including one set in electronic format;

(d) any list or other record relating to the defects, errors or omissions in the Developer’s Works; and

(e) a statement signed by the Developer identifying the time and manner in which the Developer intends to rectify the defects, errors and omissions referred to in paragraph (d).

9.6 Final inspection by the City

(a) The City must inspect the Developer's Works within 5 Business Days of notification under clause 9.5 and must within 10 Business Days of that inspection, by notice to the Developer either:

(i) state that Completion has been achieved;

(ii) state that Completion has not been achieved and (if so, identify the errors or omissions which have been identified and which in the opinion of the City’s Representatives prevent Completion; or

(iii) issue a notice of the nature identified in clause 9.8.


(b) Nothing in this clause 9.6, or in any notice issued under this clause 9.6, will be construed to reduce or waive in any manner the Developer's responsibility to correct minor Defects or minor omissions, whether or not these are identified by the City.

9.7 Date of Completion of Developer’s Works

The Developer must ensure that the Developer's Works are capable of reaching Completion on or before the Completion Date.

9.8 Non-completion of Developer’s Works

(a) If the Developer so requests, the City may permit the Developer not to complete the Developer's Works (or part of them) by issuing a notice in writing to the Developer, expressly stating that completion of the items identified in that notice is not required in fulfilment of this Agreement.

(b) If the City permits the Developer not to complete the Developer's Works (or any part of them), the City may make an appropriation from the Guarantee in such amount as the City considers necessary to complete the Developer's Works (or any part of them).

(c) If the Developer fails to complete the whole of the Developer's Works in the form and to the standards required under any Development Consent or this Agreement, then City in its discretion may either:

(i) complete the Developer's Works; or

(ii) modify the Public Benefits to reasonably achieve the objectives identified in this Agreement or any Development Consent,

and may recover all costs of and reasonably incidental to that work from the Developer. The City may apply the monies secured from the Guarantee and (to the extent that expenditure exceeds the amount secured) recover any shortfall from the Developer as a debt due and owing.

(d) If the City determines to complete the Developer’s Works under this clause 9.8, the Developer grants the City a licence for such period as is necessary for the City to access the Land to carry out, or procure the carrying out, of the Developer’s Works.

9.9 Indemnity by the Developer

The Developer indemnifies and releases the City against all damage, expense, loss or liability of any nature suffered or incurred by the City arising from any act or omission by the Developer (or any person engaged by them, including any contractor) in connection with the performance of the Developer’s obligations under the terms of this Agreement, except where the damage, expense, loss or liability suffered or incurred by the City is caused by, or contributed to, by any wilful or negligent act or omission of the City (or any person engaged by it, including any contractor).

10. DEFECTS LIABILITY PERIOD

10.1 Defects in the Developer’s Works

If the City notifies the Developer of a Defect in the Developer's Works within the Defects Liability Period, then the Developer must remedy that Defect to the reasonable satisfaction of the City, within a reasonable period (having regard to the nature of the Defect).


10.2 Security for Defects Liability Period

Until the expiration of the Defects Liability Period, the City may retain from the Guarantee an amount equal to 10% of the Guarantee Amount as security for the performance by the Developer of its obligations under this clause 10 and the Developer must make any necessary arrangements to allow that to occur. The Developer will be entitled to satisfy this clause by replacing the guarantee with a bank guarantee in an amount equivalent to 10% of the guarantee amount.

10.3 Application of Security

(a) If the Developer does not rectify any Defect in the Developer's Works duly notified under clause 10.2 within 3 months of the notice or as otherwise agreed between the parties, then the City may:

(i) rectify the Defect in the Developer's Works:

(ii) after giving the Developer not less than 15 Business Days written notice, may make an appropriation from the Guarantee retained in accordance with clause 10.2 for the costs of and arising from the rectification; and

(iii) (to the extent that the costs exceed the Guarantee held) may recover the reasonable costs from the Developer as a debt due and owing.

(b) If the City determines to rectify any Defects in the Developer’s Works under this clause 10.3, the Developer grants the City a licence for such period as is necessary for the City to access the Land to carry out, or procure the carrying out, of those rectification works.

11. EXPENDITURE BY THE CITY

11.1 Expenditure by the City

If the City carries out the Developer's Works under clause 7.4 or 9.8, then the City:

(a) is not required to expend more money than is secured by the Guarantee. The City may in its discretion elect not to carry out items of Developer's Works to ensure that the Developer's Works can be achieved for an amount equal to, or less than, the amount secured by the Guarantee at that time; or

(b) acting reasonably, may expend more money than is secured by the Guarantee in order to deliver the Developer's Works.

11.2 Debt due and owing to the City

Subject to the City giving the Developer not less than 15 Business Days written notice of an approximate amount it expects to be expended in carrying out or rectifying the Developer’s Works prior to such carrying out or rectification, if the City expends more money than is secured by the Guarantee in either carrying out or in rectifying the Developer's Works (whether that expenditure is incurred under clause 11.1 or 10.3, then the amount in excess of the Guarantee will be deemed to be a debt immediately due and owing to the City by the Developer.

12. DISPUTE RESOLUTION

12.1 Not commence

A party must not commence any court proceedings relating to a dispute unless it complies with this clause 12.


12.2 Written notice of dispute

A party claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other party specifying the nature of the dispute.

12.3 Attempt to resolve

On receipt of notice under clause 12.2, the parties must endeavour in good faith to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or other techniques agreed by them.

12.4 Mediation

If the parties do not agree within 21 Business Days of receipt of notice under clause 12.2 (or any further period agreed in writing by them) as to:

(a) the dispute resolution technique and procedures to be adopted;

(b) the timetable for all steps in those procedures; or

(c) the selection and compensation of the independent person required for such technique,

the parties must mediate the dispute in accordance with the Law Society of NSW’s Rules for Expert Determination. The parties must request the president of the Law Society of NSW or the president's nominee to select the mediator and determine the mediator's remuneration.

12.5 Court proceedings

If the dispute is not resolved within 60 Business Days after notice is given under clause 12.2 then any party which has complied with the provisions of this clause 12 may in writing terminate any dispute resolution process undertaken under this clause and may then commence court proceedings in relation to the dispute.

12.6 Not use information

The parties acknowledge the purpose of any exchange of information or documents or the making of any offer of settlement under this clause 12 is to attempt to settle the dispute. No party may use any information or documents obtained through any dispute resolution process undertaken under this clause 12 for any purpose other than in an attempt to settle the dispute.

12.7 No prejudice

This clause 12 does not prejudice the right of a party to institute court proceedings for urgent injunctive or declaratory relief in relation to any matter arising out of or relating to this Agreement.

13. GST

13.1 Definitions

Words used in this clause that are defined in the GST Act have the meaning given in that Act.

13.2 Intention of the parties

The parties intend that:

(a) Divisions 81 and 82 of the GST Act apply to the supplies made under and in respect of this Agreement; and


(b) no additional amounts will be payable on account of GST and no tax invoices will be exchanged between the parties.

13.3 Reimbursement

Any payment or reimbursement required to be made under this Agreement that is calculated by reference to a cost, expense, or other amount paid or incurred will be limited to the total cost, expense or amount less the amount of any input tax credit to which any entity is entitled for the acquisition to which the cost, expense or amount relates.

13.4 Consideration of GST exclusive

Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are GST Exclusive. Any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purposes of this clause 13.

13.5 Additional amounts for GST

To the extent an amount of GST is payable on a supply made by a party under or in connection with this Agreement (the GST Amount), the Recipient will pay to the Supplier the GST Amount. However, where a GST Amount is payable by the City as Recipient of the supply, the Developer will ensure that:

(a) the Developer makes payment of the GST Amount on behalf of the City, including any gross up that may be required; and

(b) the Developer provides a Tax Invoice to the City.

13.6 Non-monetary consideration

Clause 13.5 applies to non-monetary consideration.

13.7 Assumptions

The Developer acknowledges and agrees that in calculating any amounts payable under clause 13.5 the Developer will assume the City is not entitled to any input tax credit.

13.8 No merger

This clause will not merge on completion or termination of this Agreement.

14. ASSIGNMENT AND NOVATION

14.1 Consent

This Agreement is personal to each party and no party may assign the rights or benefits of this Agreement to any person except:

(a) to a Related Entity, after obtaining the consent of the other parties, which the other parties must not withhold if it is reasonably satisfied that the Related Entity has sufficient assets, resources and expertise to perform all of the assigning party’s obligations under this Agreement; or

(b) to any other person, with the prior consent of the other parties, provided that such consent must not be unreasonably withheld.


14.2 Developer’s right to assign or novate

(a) Prior to seeking the consent of the City to a proposed assignment or novation of its rights or obligations under this Agreement, the Developer must:

(i) satisfy the City that the person to whom the Developer’s rights or obligations are to be assigned or novated (Incoming Party) has sufficient assets, resources and expertise required in order to perform the Developer’s obligations under this Agreement insofar as those obligations are to be assigned or novated to the Incoming Party; and

(ii) procure the execution of an agreement by the Incoming Party with the City on terms satisfactory to the City, under which the Incoming Party agrees to comply with the terms and conditions of this Agreement as though the Incoming Party was the Developer.

(b) The Developer must pay the City’s reasonable costs and expenses incurred under this clause 14.2.

14.3 Developer’s right to transfer Land

(a) Once this Agreement becomes operative under clause 2.1, the Developer must not sell or transfer to another person (Transferee) the whole or part of any part of the Land on which this Agreement remains registered under section 93H of the Act.

(b) After this Agreement has been signed and submitted to the City and before this Agreement becomes operative under clause 2.1, the Developer must not sell the Land (or any part of it) unless it notifies the City in writing and it obliges the purchaser to enter into an Agreement on the same terms as this Agreement with the City prior to the Land (or any part of it) being transferred to that purchaser.

(c) Notwithstanding clause 14.3(a) the Developer may sell or transfer the whole or any part of the Land to a Transferee if prior to the proposed sale or transfer the Developer:

(i) satisfies the City that the Transferee has sufficient assets, resources and expertise required in order to perform any of the remaining obligations of the Developer under this Agreement or satisfies the City that the Developer will continue to be bound by the terms of this Agreement after the transfer has been effected; and

(ii) satisfies the City that it is not in material breach of its obligations under this Agreement.

(d) The Developer must pay the City’s reasonable costs and expenses incurred under this clause 14.3.

(e) Notwithstanding the above, the Developer may enter into a contract for sale, and may sell and transfer to a purchaser part of the Land forming a strata lot on a proposed Strata Plan, without compliance with clauses 14.3(a) and 14.3(b).

15. TERMINATION OF AGREEMENT This Agreement will terminate if:

(a) The Development Consent issued for the Development lapses; or

(b) The Development Consent issued for the Development is surrendered.


16. CAPACITY

16.1 General warranties

Each party warrants to each other party that:

(a) this Agreement creates legal, valid and binding obligations, enforceable against the relevant party in accordance with its terms; and

(b) unless otherwise stated, it has not entered into this Agreement in the capacity of trustee of any trust.

16.2 Power of attorney

If an attorney executes this Agreement on behalf of any party, the attorney declares that it has no notice of the revocation of that power of attorney.

17. GENERAL PROVISIONS

17.1 Entire agreement

This Agreement constitutes the entire agreement between the parties regarding the matters set out in them and supersedes any prior representations, understandings or arrangements made between all the parties, whether orally or in writing.

17.2 Variation

This Agreement must not be varied except by a later written document executed by all parties.

17.3 Waiver

A right created by this Agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.

17.4 Further assurances

Each party must promptly execute all documents and do everything necessary or desirable to give full effect to the arrangements contained in this Agreement.

17.5 Time for doing acts

(a) If:

(i) the time for doing any act or thing required to be done; or

(ii) a notice period specified in this Agreement,

expires on a day other than a Business Day, the time for doing that act or thing or the expiration of that notice period is extended until the following Business Day.

(b) If any act or thing required to be done is done after 5 pm on the specified day, it is taken to have been done on the following Business Day.

17.6 Governing law and jurisdiction

(a) The laws applicable in New South Wales govern this Agreement.


(b) The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts competent to hear appeals from those courts.

17.7 Severance

If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

17.8 Preservation of existing rights

The expiration or termination of this Agreement does not affect any right that has accrued to a party before the expiration or termination date.

17.9 No merger

Any right or obligation of any party that is expressed to operate or have effect on or after the completion, expiration or termination of this Agreement for any reason, will not merge on the occurrence of that event but will remain in full force and effect.

17.10 Counterparts

This Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument.

17.11 Relationship of parties

Unless otherwise stated:

(a) nothing in this Agreement creates a joint venture, partnership, or the relationship of principal and agent, or employee and employer between the parties; and

(b) no party has the authority to bind any other party by any representation, declaration or admission, or to make any contract or commitment on behalf of any other party or to pledge any other party’s credit.

17.12 Good faith

Each party must act in good faith towards all other parties and use its best endeavours to comply with the spirit and intention of this Agreement.

17.13 No fetter

Nothing in this Agreement shall be construed as requiring the City or the Central Sydney Planning Committee to do anything that would cause the City or that Committee to breach any of the City’s or the Committee’s obligations at law and without limitation, nothing in this Agreement shall be construed as limiting or fettering in any way the discretion of the City or the Committee in exercising any of the City’s or the Committee’s statutory functions, powers, authorities or duties.

17.14 Explanatory note

The Explanatory Note must not be used to assist in construing this Agreement.

17.15 Expenses and Taxes

(a) The Developer must pay its own and the City’s reasonable legal costs and disbursements in connection with


(i) the negotiation, preparation and execution of this Agreement; and

(ii) any enforcement of the City’s rights under this Agreement

(iii) The Developer must pay for all reasonable costs and expenses associated with the giving of public notice of this Agreement and the Explanatory Note in accordance with the Regulation.

(b) The Developer must pay all Taxes assessed on or in respect of this Agreement and any instrument or transaction required or contemplated by or necessary to give effect to this Agreement including any stamp duty that may be payable by the City in respect of Land transferred to an Authority.

(c) The Developer must provide the City with bank cheques in respect of the City’s costs pursuant to clauses 17.15(a) and (iii):

(i) where the City has provided the Developer with written notice of the sum of such costs prior to execution, on the date of execution of this Agreement; or

(ii) where the City has not provided the Developer with prior written notice of the sum of such costs prior to execution, within 30 Business Days of demand by the City for payment.

17.16 Notices

(a) Any notice, demand, consent, approval, request or other communication (Notice) to be given under this Agreement must be in writing and must be given to the recipient at its Address for Service by being:

(i) hand delivered; or

(ii) sent by facsimile transmission; or

(iii) sent by prepaid ordinary mail within Australia.

(b) A Notice is given if:

(i) hand delivered, on the date of delivery but if delivery occurs after 5pm New South Wales time or a day that is not a Business Day, is taken to be given on the next Business Day;

(ii) sent by facsimile transmission during any Business Day, on the date that the sending party’s facsimile machine records that the facsimile has been successfully transmitted but if the transmittal is recorded by the sending party’s facsimile machine as after 5pm New South Wales time or a day that is not a Business Day, is taken to be given on the next Business Day; or

(iii) sent by prepaid ordinary mail within Australia, on the date that is 2 Business Days after the date of posting.


SCHEDULE 1

ADDRESS FOR SERVICE (clause 1.1)

City

Contact: Chief Operating Officer

Address: Town Hall House 465 Kent Street SYDNEY NSW 2000

Facsimile No: 02 9265 9222

Developer

Contact: Chris Roche

Address: Suite 4.09

50 Holt Street

Surry Hills NSW 2010

Facsimile No:


SCHEDULE 2

Table 1 – Requirements under section 93F of the Act (clause 2)

The parties acknowledge and agree that the table set out below provides for certain terms, conditions and procedures for the purpose of the Agreement complying with the Act.

REQUIREMENT UNDER THE ACT THIS AGREEMENT

Planning instrument and/or development application – (section 93F(1))

The Developer has: (a) sought a change to an environmental

planning instrument. (b) made, or proposes to make, a

Development Application. (c) entered into an agreement with, or is

otherwise associated with, a person, to whom paragraph (a) or (b) applies.

(a) No

(b) No

(c) Yes

Description of land to which this Agreement applies – (section 93F(3)(a))

See Schedule 3

Description of change to the environmental planning instrument to which this Agreement applies and/or the development to which this Agreement applies – (section 93F(3)(b))

The Development as defined in clause 1.1

The scope, timing and manner of delivery of contribution required by this Agreement – (section 93F(3)(c))

See Schedule 4

Applicability of sections 94 and 94A of the Act – (section 93F(3)(d))

The application of sections 94 and 94A of the Act is not excluded in respect of the Development and for the avoidance of doubt, contributions (if any) under sections 94 or 94A will be required to be paid

Applicability of section 94EF of the Act – (section 93F(3)(d))

The application of section 94EF of the Act is not excluded in respect of the Development and for the avoidance of doubt, contributions (if any) under section 94EF will be required to be paid

Consideration of benefits under this Agreement if section 94 applies – (section 93F(3)(e))

No

Mechanism for Dispute Resolution – (section 93F(3)(f))

See clause 12

Enforcement of this Agreement – (section 93F(3)(g))

See clause 5

No obligation to grant consent or exercise functions – (section 93F(10))

See clause 17.13


Table 2 – Other matters

REQUIREMENT UNDER THE ACT OR REGULATION

THIS AGREEMENT

Registration of the Planning Agreement – (section 93H of the Act)

Yes (see clause 5.4)

Whether the Planning Agreement specifies that certain requirements of the agreement must be complied with before a construction certificate is issued – (clause 25E(2)(g) of the Regulation)

Yes, see clause 7.2

Whether the Planning Agreement specifies that certain requirements of the agreement must be complied with before an occupation certificate is issued – (clause 25E(2)(g) of the Regulation)

Yes

Whether the Planning Agreement specifies that certain requirements of the agreement must be complied with before a subdivision certificate is issued – (clause 25E(2)(g) of the Regulation)

Yes


SCHEDULE 3

Land (clause 1.1)

Lot Strata Plan

Folio Identifier Address

Common Property 74596 CP/SP74596 Units 39-41/1A Coulson Street, Erskineville

2. Development The future development and use of the Land for mixed use development generally in accordance with the Sydney LEP 2012 and the Development Consent and includes the Development Works. 3. Guarantee Amount $2,225,931 being comprised of $1,951,574 (in relation to the Developers Works) + $307,736 (in relation to the Monetary Contribution) to be provided upon execution of this Agreement


SCHEDULE 4

Contributions (clause 3.2) 1.1 Contributions Tables

Table 1 - Contribution Amounts

Contribution Timing

1. $307,736

To be used by the City for the future design and construction of the Pedestrian Link area marked ‘Proposed Road’ in the Plan included at Schedule 7;

And

To be used by the City for the future construction of Zenith Street, construction works include kerb and gutter, pavement, street trees, footway, and stormwater works.

Prior to the issue of an Occupation Certificate which relates to any part of the Land

Table 2 - Contribution Land

Contribution Timing

1. Transfer as a Lot an area of 410m2 marked as ‘Proposed Road’ in the Plan included at Schedule 7 (Transfer Land)

Dedicate an area of 1782.40m2 marked as Coppersmith Lane, Metters St and Zenith St in the plan included at Schedule 7 (Dedicated Land)

Transfer Land to be transferred to City prior to issue of the first Occupation Certificate which relates to any part of the Land.

Dedicated Land to occur after Completion and prior to the issue of the first Occupation Certificate which relates to any part of the Land.

Table 3 - Public Benefit

Contribution Timing

1 Developer’s Works

Construction works are as described in Schedule 5 (including new roads, pavements, footpaths, kerbs and gutters, landscaping, stormwater, lighting, services)

To be completed prior the issue of the first Occupation Certificate for the development

1.2 Increase in Contributions

If the Contributions Tables state that the Monetary Contribution in Table 1 or the cost equivalent of any Developer’s Works will be increased, then the amount specified for that Monetary Contribution and the cost equivalent of any Developer’s Works must be increased in accordance with the formula set out below:


LCPI

CPIxAmountonContributi

where:

CPI = the CPI last published before the due date for payment of that Contribution Amount; and

LCPI = the CPI last published before 30 June 2015.

No increase or other change will be made to the Contributions Amount [or the cost equivalent of any Developer’s Works] where LCPI is greater than CPI.

Note: the Sydney Consumer Price Index (All Groups) is to be used


SCHEDULE 5

Developer’s Works (clause 1.1) The following works must be constructed to the Standards and in accordance with this Agreement:

Description of Developer’s Works

The construction of portions of Coppersmith Lane, Metters Street, and Zenith Street and Hadfields Street, including roadways, footpaths, landscaping and related infrastructure as detailed below.

Coppersmith Lane:

• Construction of coppersmith lane within the boundary and to match adjoining laneway completed

• Full width of the road reserve to match the 6.4m reservation

• Construction of associated footpath including matching neatly to existing built work undertaken by adjoining property and making it good at the intersections

• Construction of kerb and gutter to coppersmith lane

• Construction of stormwater drainage (including new connection into Sydney Water trunk drainage in Macdonald Street)

• Construction of vehicular crossing to coppersmith Lane to be integrated and coordinated with services and stormwater outlet to the kerb

• Construction of stormwater drainage system to be located in the road to allow street lighting footings and service clearance can be provided within the footpath zone

• Allowance for landscaping ,street signage, etc. to future detail design

• Provision of public domain street and pedestrian lighting to Australian and city’s standard specification

• Provision of Tri-Hex pavers on concrete base and green concrete footpath to City’s standard specification

• Construction of road and drainage infrastructure ,to comply with City’s Ashmore Precinct concept design and documentation

• Construction of 1.8m high lap and capped timber fence

Metters Street

• Construction of Metters Street and match neatly with already constructed road

• Construction of kerb and gutter to Metters Street

• Construction of vehicle crossing to Metters Street

• Construction of stormwater drainage system to Metters Street

• Construction of parking bays in Metters Street


• Construction of associated footpath, including footpath extension at the intersection of Metters Street and Coppersmith Lane

• Allowance for street furniture (bins, seating, etc.) and street signage ,etc. to future detailed design

• Provision of public domain street and pedestrian lighting to Australian and City standards

Zenith Street

• Construction of Zenith Street and making it good with the adjoining development to the west

• Construction of temporary fence/retaining wall(or similar) as required to separate the new work with the adjacent right of way as required

• Construction of associated footpath to Zenith street

• Construct parking bay as per Ashmore Public Domain concept to neatly coordinated with adjacent development

• Provision of trees/tree pit soil cells within the footpaths to future detailed design

• Construction of stormwater drainage system within the footpath zone needs to be coordinated with tree locations, tree pit soil cells, stormwater kerb inlet pits and public utility service location and street lighting requirements

• Provision of public domain street and pedestrian lighting to Australian and City standards

• Dedication of the land to the City.

Design Refinement Required Specifically to address the following Issues:

• Street lighting – number and location of poles and street lighting types to be confirmed during design development

• Strata cells to expand the tree pit soil volume (typically 6m x 2m) and subsoil drainage connections to the stormwater system is required to all street trees on the northern side of Metters Street and all Zenith Street tree pits).

• Coppersmith Lane profile – footway width, kerb alignment, flush kerbs or raised kerbs. Considered further, with reference to marrying onto neighbouring sites, Ashmore Precinct Public Domain drawings, and stormwater requirements.

• Scope of works to be modified to include kerb extension / building out associated with the driveway crossover, works to include tree planting, mass planting, drainage and paving work.

• Temporary works to ensure design marries into neighboring sites and their future public domain infrastructure.

• Design documentation needs to be fully coordinated with the development to the west to make sure that Zenith Street is delivered in an orderly manner with final levels and public domain works are acceptable to Council

• Design is to be amended to reflect the City’s Ashmore Public Domain Strategy drawings, prepared by Aecom, changes include parking bay layout, street tree numbers, street light pole numbers and locations, and the like.

Estimated Costs


$1,951,574

SECTION 3 - Relevant Plans

Plan of Developer’s Works at Schedule 9

City’s Ashmore Public Domain Strategy Documentation Drawings;


SCHEDULE 6

Standards (clause 1.1)

1. General

The standards referred to in this schedule are included for information purposes only, and as a guide to the relevant standards for the general nature of the work of the kind identified as Developer's Works in this Agreement. The City makes no representation or warranty whatsoever as to the currency of the standards identified, or their application to the final design of any particular element. If any standard is replaced or supplemented, then a reference will be deemed to include any other standards as may replace or supplement that standard.

2. Conflict

In the event that any Australian Standard prescribes or describes a different level of material, finish, work or workmanship, than those contained in any City Standard, then the higher of the two standards will apply. In the event that one or more City Standards conflict with another City Standard, then the City must nominate the correct and applicable City Standard. The City’s decision as to the applicable standard in the event of conflict is final.

3. Australian Standards AS 1725 Geotechnical Site investigations AS 4455 Masonry Units and segmental pavers AS 4678 Earth Retaining Structures AS 4454 Composts, soil conditioners and mulches AS 1720 Timber structures AS 3600 Concrete Structures AS 2876 Concrete kerbs and channels AS 1428 Design for Access and Mobility AS 1158 Road Lighting AS 4282 Control of the Obtrusive Effects of Outdoor lighting AS 1743 Road signs AS4586 Slip Resistance Classification of New Pedestrian Surface Materials AS 3500 Plumbing and Drainage AS 3700 Masonry Structures AS 2890 Parking Facilities AS 1742 Manual of uniform traffic control devices

4. City Standards (All Works) City of Sydney Contaminated Lands DCP 2004 City of Sydney Access Policy City of Sydney Public Domain Manual City of Sydney Awning Policy City of Sydney Street Tree Masterplan City of Sydney – Public Domain Codes – Sydney Lights 2015 City of Sydney – Sydney Streets Code 2013 City of Sydney – Sydney Streets Technical Specification and standard drawings

– Draft 2013 Ashmore Public Domain Stagey Report – Draft 2014 Ashmore Public Domain Strategy Drawings, prepared by Aecom – Draft 2015


SCHEDULE 7 Plans


SCHEDULE 8 City’s Works

The payment of the Monetary Contribution will be applied for the purpose of the provision of public domain infrastructure within; - Pedestrian Through Link area marked ‘Proposed Road’ in the plans included in Schedule 7, and - Zenith Street and Metters Street The public domain infrastructure may include costs of, or associated with, any one or more of the following; - Design construction of the new roads including footpaths, pavments, street lighting, signage, street trees, mass planting, future - Modification and enhancement of existing roads footways, including road widening, resurfacing, draionage, tree planting replacement, mass plantings, kerb and gutter realignment - Design, construction and maintence of stormwater management systems including raingardens, detention measures, pits and pipes - Design, commissioning, construction and installation of public art


SCHEDULE 9 Plans of Developer’s Works


Exhibit A – Explanatory Note


Executed as an Agreement: Signed for and on behalf of The COUNCIL OF THE CITY OF SYDNEY by its duly authorised officer in the presence of:

) ) )

Witness: Signature:

Name (printed): Name of Authorised Officer:

SIGNED by ERSKIN 3 FCP PTY LTD (ACN 167 066 024) in accordance Section 127 Corporations Act 2001(Cth):

) ) )

Director: Director/Secretary:

Name (printed): Name (printed):

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