In the absence of the VPA, the development would be billed under the Shire-wide Section 7.12 Contribution Plan only at a rate of 1% of the development cost (approximately $3.1 million). First, the draft is based on the current estimate of construction costs submitted by the developer.
Defined meanings
The Council is the approval authority under the Planning and Environmental Assessment Act 1979(NSW) (the Act) for Proposed Development. Council and the Developer acknowledge that the applicable Contribution Plan applicable to the site is the Section 7.12 Hills Contribution Plan. Notwithstanding the foregoing, if the Development Consents are granted for the Proposed Development, the Developer has offered to provide the total monetary contribution subject to the terms of this Agreement.
Planning agreement under the Act
Application of this document
No restriction on Council’s Powers
Operation of this Agreement
Monetary Contributions
Where the Council is not the Certifying Authority for any aspect of the proposed development, the Developer shall, within a reasonable period of time following the appointment of a Private Certifying Body, provide a copy of this Agreement to the Private Certifying Body. The developer agrees to register this document in accordance with section 7.6 of the Land Act and upon registration by the registrar the agreement will be binding on and. The Developer shall register this Agreement on the Lot within sixty (60) days after it is entered into between the parties.
The last portion of the Land to be released from registration of this document shall not be released until any applicable Total Monetary Contribution has been paid. In the event that the Developer enters into a contract for the sale of the Land subject to the Development Consent, the Developer (as vendor) will disclose the existence of this Agreement to the purchaser. Expected dwellings means 418 dwellings divided over four phases (refer to Schedule 3) expected as part of the Proposed Development.
Development Consent means a development consent granted under section 4.16 of the Act or otherwise granted by an Authority in relation to the proposed Development. The payment of the total monetary contribution will be proportional in accordance with the scale shown in the table below. To support the Proposed Development, the Developer has offered to provide monetary contributions subject to the terms of the proposed Agreement.
The purpose of the proposed Planning Agreement is to record the terms of the offer made by the Developer and its obligations (if the Planning Agreement is entered into with the Council) to pay monetary contributions to the Council. Identification of how the proposed Planning Agreement promotes elements of the Council's charter under the Local Government Act 1993.
Application of s11 and s12 of the Act
Termination
Any officer of the Developer's company becomes subject to bankruptcy proceedings or becomes insolvent; or. b) The developer becomes subject to external administration or bankruptcy procedures.
Consequences
Private Certifiers
Notices
Breach Notice and Rectification
The developer must pay all reasonable costs incurred by the Council in remedying the breach.
Dispute resolution
Expert required to settle or determine the dispute; and. ii) ensure that their employees, agents or consultants are available to appear at any hearing or inquiry called by the Expert. In determining the allocation of costs, the Expert may take into account what the Expert, in its reasonable opinion, considers to be a lack of good faith or a failure to use.
Registration of document on Title
In determining the allocation of costs, the Expert may take into account what the Expert, in its reasonable opinion, considers to be a lack of good faith or a failure to use. reasonable efforts by either party to assist the Expert or resolve the dispute between the parties' nominated officers as required by this clause. Each Party must continue to fulfill its obligations under this document while any dispute under this clause is being determined. The obligations of the Council in relation to this clause 14.3 have been fulfilled when the Council provides the Developer with a signed Request in registrable form for the exemption from registration of this document from the relevant portion of the land.
This clause 14.3 expressly allows parts of the Land to be progressively exempted from registration of this document where the Total Monetary Contribution applicable to that part of the Land has been paid in full. The Developer must pay the Council's reasonable expenses, including registration fees, any stamp duty, legal fees and disbursements, for the registration of this document and the subsequent removal of registration, on an indemnity basis.
Costs
GST
Limitation of Liability of the Developer
This limitation of the Trustee's liability applies notwithstanding any other provision hereof and extends to all obligations and liabilities of the Trustee in any way related to any representation, warranty, conduct, omission, agreement or transaction in connection herewith document. No party to this agreement or any person claiming through or on their behalf shall be entitled: i) to seek or commence proceedings against the trustee in respect of any liability in any capacity except as a liable entity of the Trust; ;. ii) seek the appointment of a receiver, receiver and manager, liquidator, an administrator or any similar holder for the trustee, or attempt any liquidation, administration or arrangement of or affecting the trustee, except in relation to the property of Faith; or. iii) enforce or seek to enforce any judgment in respect of an obligation hereunder or otherwise against the trustee in any capacity other than as trustee of the Trust. The Trustee is under no obligation to do or refrain from doing anything hereunder (including any obligation) unless its liability is limited in the same manner as set out in clauses (a) to 17(e). (inclusive).
General
Any legal action in relation to this Agreement against any party or its property may be. brought in any court of competent jurisdiction in the State of New South Wales. Any amendment to this Agreement shall have no force or effect unless effected by a document executed by the parties. Each party shall execute any document and perform any act necessary to give full effect to this Agreement, whether before or after the execution of this Agreement.
The provisions of this Agreement do not merge with any act done or document executed by any party for the purpose of fulfilling this Agreement. Any representation in this Agreement survives the execution of any document for the purposes of, and continues after the execution of, this Agreement. The failure of any party to exercise any right under this Agreement shall not operate as a waiver, and the single or partial exercise of any right by such party shall not preclude any other or further exercise of that or any other right by such party.
The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law.
Definitions and interpretation
If a party enters into this Agreement as trustee of a trust, that party warrants that on the date of this Agreement:. a) all the powers and discretions granted by the deed establishing the trust can be validly exercised by the party as trustee and have not been changed or revoked and the trust is a valid and existing trust;. The Parties represent and warrant that they have the power to enter into and perform their obligations under the Agreement and that entering into this Agreement will not result in the violation of any law. If a clause or part of a clause of this Agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must in the latter is read way.
GST means any tax, charge, levy or charge implemented under the A New Tax System (Goods and Services Tax) Act 1999(Cth) (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to the GST Act. Monetary Contribution means the monetary development contributions payable to the Council as specified in Schedule 3. Total Monetary Contribution means the combination of the Monetary Contribution and the Fixed Development Consent Charges as set out in Schedule 3.
In this document unless the context otherwise requires:. a) clause and sub-clause headings are for reference purposes only;.
Site Masterplan
Proposed Development
2. Stages of the Proposed Development The Total Monetary Contribution for each stage will be prior to or concurrent with the first Construction Certificate for that relevant stage. The proposed Agreement relates to monetary contributions for the funding of, the construction of and improvements to local infrastructure, the public domain and public amenities. Assessment of the merits of the proposed planning agreement and impact on the public The agreement provides contributions that will improve the addition and delivery of local infrastructure and public amenities.
The proposed agreement gives Council flexibility to be agile in their response to local infrastructure and public amenity requirements and allocate the monetary contributions under the proposed agreement as they see fit. The proposed agreement promotes the public interest by offering monetary contributions to be used for the development and provision of local infrastructure and public facilities. The proposed agreement thereby aims to ensure optimal local infrastructure and public facilities in parallel with the proposed development.
Identification of the planning purpose served by the proposed Planning Agreement and whether the proposed Planning Agreement provides a reasonable means of achieving that purpose. Identifying whether the agreement is consistent with the Council's capital works program The proposed agreement provides flexibility for the Council to allocate funds to different local infrastructure and public amenity needs as they see fit. In providing this flexibility, the proposed Agreement provides the Council with the opportunity to use development contributions in accordance with the capital works programme, responding to the needs of the community in a way that is both efficient and practical.
Monetary Contributions
