draft planning agreement: 57 ashmore st & 165-175 mitchell ...€¦ · 1.2 rules for...

Planning Agreement

The Council of the City of Sydney and Greenland Golden Horse Investment Pty Ltd ACN 600 607 001

as trustee for The Greenland Golden Horse Investment Trust ABN 60 504 131 264 and

The Trust Company Limited as custodian for the Goodman Industrial Europe Finance Trust ABN [insert]

AUSTRALIA\NTH\225465134.01

CONTENTS

CLAUSE PAGE

1. INTERPRETATION ..................................................................................................... 5

1.1 Definitions .................................................................................................... 5 1.2 Rules for interpreting this document............................................................... 12

2. APPLICATION OF THE ACT AND THE REGULATION ...................................................... 13

2.1 Application of this document ......................................................................... 13 2.2 Public Benefits to be made by Developer ........................................................ 13 2.3 Application of sections 94, 94A and 94EF of the Act ......................................... 13 2.4 City rights ................................................................................................... 13 2.5 Explanatory note ......................................................................................... 13

3. OPERATION OF THIS PLANNING AGREEMENT ............................................................. 14

3.1 Commencement .......................................................................................... 14 3.2 Property 2 Landowner obligations .................................................................. 14

4. WARRANTIES ......................................................................................................... 14

4.1 Mutual warranties ........................................................................................ 14 4.2 Developer warranties ................................................................................... 15 4.3 Property 2 Landowner warranties ................................................................... 15

5. PUBLIC BENEFITS ................................................................................................... 15

5.1 Developer to provide Public Benefits .............................................................. 15 5.2 Trunk Drainage design election ...................................................................... 16

6. SECTION 94 PUBLIC BENEFITS ................................................................................. 16

6.1 Subject to clause 5.1 .................................................................................... 16 6.2 Adjustment of Attributed Value of Section 94 Public Benefits ............................. 16 6.3 Ability to offset against section 94 obligations ................................................. 16 6.4 Section 94 Credits ....................................................................................... 17 6.5 Ability to carry forward ................................................................................. 17 6.6 Treatment of section 94 obligations................................................................ 17

7. SECTION 94 RECONCILIATIONS ............................................................................... 18

7.1 General ...................................................................................................... 18 7.2 Phase 4 Reconciliation .................................................................................. 18 7.3 Effect of Sale of Property 2 on Phase 4 Reconciliation ....................................... 19 7.4 Phase 7 Reconciliation .................................................................................. 19

8. COMPLETION .......................................................................................................... 20

8.1 Date of Completion ...................................................................................... 21 8.2 Sunset Date for Completion .......................................................................... 21 8.3 Developer completion notice ......................................................................... 21 8.4 Inspection by the City .................................................................................. 22 8.5 Non-completion of Public Benefits .................................................................. 22

9. INDEMNITY ............................................................................................................ 23

10. DEFECTS LIABILITY ................................................................................................. 23

10.1 Security for Defects Liability Period ................................................................ 23 10.2 Defect in the Public Benefits .......................................................................... 23 10.3 Maintenance of the Public Benefits ................................................................. 24

11. REGISTRATION AND CAVEAT ................................................................................... 24

11.1 Registration of this document ........................................................................ 24 11.2 Caveat ....................................................................................................... 26 11.3 Release of this document .............................................................................. 26

12. ENFORCEMENT ....................................................................................................... 26

12.1 Developer to provide Guarantee .................................................................... 26 12.2 Provision of Guarantee by reference to Phases ................................................ 27 12.3 Adjustment of Guarantee Amount .................................................................. 27 12.4 Right of City to claim on Guarantee ................................................................ 28 12.5 Expenditure by the City ................................................................................ 28 12.6 Top-up of Guarantee .................................................................................... 29 12.7 Return of Guarantee .................................................................................... 29 12.8 Compulsory acquisition ................................................................................. 29

13. DISPUTE RESOLUTION ............................................................................................ 30

13.1 Application .................................................................................................. 30 13.2 Negotiation ................................................................................................. 30 13.3 Not use information ..................................................................................... 31 13.4 Condition precedent to litigation .................................................................... 31 13.5 Summary or urgent relief.............................................................................. 31

14. TAXES AND GST ..................................................................................................... 31

14.1 Responsibility for Taxes ................................................................................ 31 14.2 GST free supply ........................................................................................... 31 14.3 Supply subject to GST .................................................................................. 32

15. DEALINGS .............................................................................................................. 32

15.1 Dealing by the City ...................................................................................... 32 15.2 Dealing by the Developer and Property 2 Landowner ........................................ 33 15.3 Extinguishment or creation of interests on Transfer Land and Easement Land ..... 34

16. TERMINATION ........................................................................................................ 34

17. CONFIDENTIALITY AND DISCLOSURES ...................................................................... 35

17.1 Use and disclosure of Confidential Information ................................................ 35 17.2 Disclosures to personnel and advisers ............................................................ 35 17.3 Disclosures required by law ........................................................................... 36 17.4 Receiving party's return or destruction of documents ....................................... 36 17.5 Security and control ..................................................................................... 36 17.6 Media releases ............................................................................................ 36

18. TRUSTEE CAPACITY ................................................................................................ 37

18.1 Limitation of Liability – Greenland Golden Horse Investment Pty Ltd .................. 37 18.2 Trust representations and warranties ............................................................. 37 18.3 Trustee obligations....................................................................................... 38

19. LIMITATION OF LIABILITY – PROPERTY 2 LANDOWNER ENTITIES ................................. 38

20. PROPERTY 2 LANDOWNER TRUST WARRANTIES ......................................................... 42

21. NOTICES ............................................................................................................... 43

22. GENERAL ............................................................................................................... 43

22.1 Governing law ............................................................................................. 43 22.2 Access to information ................................................................................... 43 22.3 Liability for expenses .................................................................................... 44 22.4 Role and relationship of parties ..................................................................... 44 22.5 Giving effect to this document ....................................................................... 44

22.6 Time for doing acts ...................................................................................... 44 22.7 Severance................................................................................................... 44 22.8 Preservation of existing rights ....................................................................... 45 22.9 No merger .................................................................................................. 45 22.10 Waiver of rights ........................................................................................... 45 22.11 Operation of this document ........................................................................... 45 22.12 Operation of indemnities ............................................................................... 45 22.13 Inconsistency with other documents............................................................... 46 22.14 No fetter ..................................................................................................... 46 22.15 Counterparts ............................................................................................... 46

Schedules

1 Agreement Details .................................................................................................. 47 2 Requirements under the Act and Regulation (clause 2) ................................................ 50 3 Public Benefits (clause 5) ......................................................................................... 53 4 Novation Deed ........................................................................................................ 68 5 Easements ............................................................................................................. 82

THIS PLANNING AGREEMENT is made on 2017.

BETWEEN:

(1) The Council of the City of Sydney ABN 22 636 550 790 of Town Hall House, 456 Kent Street, SYDNEY NSW 2000 (the City); and

(2) Greenland Golden Horse Investment Pty Ltd ACN 600 607 001 as trustee for The Greenland Golden Horse Investment Trust ABN 60 504 131 264 of Suite 201, Level 2, 233 Castlereagh Street, SYDNEY NSW 2000 (the Developer); and

(3) The Trust Company Limited ACN 004 027 749 as custodian for the Goodman Industrial Europe Finance Trust of Level 12, 123 Pitt Street, Sydney NSW 2000 (the Property 2 Landowner).

BACKGROUND

(A) The Developer is the owner of Property 1 and intends to undertake the Development on the Land. The Development will be carried out in phases over a number of years.

(B) The Property 2 Landowner is the owner of Property 2 and consents to the Developer undertaking the Development on Property 2 subject to the terms of this document.

(C) The Developer has an option to purchase Property 2 from the Property 2 Landowner. The Developer has paid a deposit in relation to the purchase of Property 2 and expects to complete the purchase at the end of November 2017.

(D) The Developer has offered to enter into this document with the City to provide the Public Benefits on the terms of this document. The Public Benefits will be delivered in phases over a number of years.

(E) The Property 2 Landowner has agreed to be a party to this document solely in its capacity as landowner pending completion of the sale of Property 2 to the Developer.

THE PARTIES AGREE AS FOLLOWS:

1. INTERPRETATION

1.1 Definitions

The following definitions apply in this document.

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

Adverse Affectation has the same meaning as in clause 4 of Part 2 of the Conveyancing (Sale of Land) Regulation 2010 (NSW).

5 AUSTRALIA\NTH\225465134.01

Attributed Value means the value the City and the Developer agree is to be attributed to each element of the Public Benefits as at the date of this document, as set out in clause 1 of Schedule 3 of this document as may be adjusted in accordance with clause 6.2.

Authorisation means:

(a) an approval, authorisation, consent, declaration, exemption, permit, licence, notarisation or waiver, however it is described, and including any condition attached to it; and

(b) in relation to anything that could be prohibited or restricted by law if a Government Agency acts in any way within a specified period, the expiry of that period without that action being taken,

including any renewal or amendment.

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 Personal Information means Personal Information to which the Developer, or any third party engaged by the Developer, has access directly or indirectly in connection with this document, including the Personal Information of any personnel, customer or supplier of the City (other than the Developer).

City's Policies means all policies and procedures relevant to the provision of the Public Benefits, as notified by the City in writing to the Developer.

City’s Representative means the person named in Item 3 of Schedule 1 or his/her delegate.

Completion means the point at which the Developer’s Works or each relevant part of them are complete except for minor defects:

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

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

(c) rectification of which will not affect the immediate and convenient use of the Developer’s Works for their intended purpose.

Completion Notice means a notice issued by the Developer in accordance with clause 8.1.

Confidential Information means:

(a) information of a party (disclosing party) that is:

(i) made available by or on behalf of the disclosing party to the other party (receiving party), or is otherwise obtained by or on behalf of the receiving party; and

(ii) by its nature confidential or the receiving party knows, or ought reasonably to know, is confidential.


Confidential Information may be made available or obtained directly or indirectly, and before, on or after the date of this document.

Confidential Information does not include information that:

(a) is in or enters the public domain through no fault of the receiving party or any of its officers, employees or agents;

(b) is or was made available to the receiving party by a person (other than the disclosing party) who is not or was not then under an obligation of confidence to the disclosing party in relation to that information; or

(c) is or was developed by the receiving party independently of the disclosing party and any of its officers, employees or agents.

Construction Certificate has the same meaning as in the Act.

Contamination has the meaning given to that word in the Contaminated Land Management Act 1997 (NSW).

Corporations Act means the Corporations Act 2001 (Cth).

DCP Public Benefits means the Public Benefits described as “DCP Benefits” in Schedule 3.

Dealing means selling, transferring, assigning, novating, charging, or encumbering (other than by mortgage) and, where appearing, Deal has the same meaning.

Defect means any error, omission, defect, non-conformity, discrepancy, shrinkage, blemish in appearance or other fault in the Public Benefits or any other matter which prevents the Public Benefits from complying with the terms of this document.

Defects Liability Period means, for each Phase of the Developer’ Works, the period of 12 months from the date on which the last item of Developer’s Works within that Phase of the Developer’s Works reach Completion.

Developer’s Representative means the person named in Item 4 of Schedule 1 or his/her delegate.

Developer’s Works means those parts of the Public Benefits described as “Developer’s Works” in clause 1 of Schedule 3, to be delivered by the Developer in accordance with this document.

Development means the development of the Land by the Developer described at Item 2 of Schedule 1.

Development Application means the development application identified in Item 6 of Schedule 1 and includes all plans, reports models, photomontages, material boards (as amended or supplemented) submitted to the consent authority before the determination of that Development Application.


Development Consent means the consent granted to the Development Application for the Development and includes all modifications made under section 96 of the Act.

Dispute means any dispute or difference between the parties arising out of, relating to or in connection with this document, including any dispute or difference as to the formation, validity, existence or termination of this document.

Easements means the interests, substantially in the form attached to this document at Schedule 5, to be created over the Easement Land in accordance with Schedule 3 of this document which form part of the Public Benefits.

Easement Land means land over which the Easements are to be created.

Environmental Laws means all laws and legislation relating to environmental protection, building, planning, health, safety or work health and safety matters and includes the following:

(a) the Work Health and Safety Act 2011 (NSW);

(b) the Protection of the Environment Operations Act 1997 (NSW); and

(c) the Contaminated Land Management Act 1997 (NSW).

Government Agency means:

(a) a government or government department or other body;

(b) a governmental, semi-governmental or judicial person; or

(c) a person (whether autonomous or not) who is charged with the administration of a law.

Gross Floor Area has the meaning given to that term in the Sydney Local Environment Plan in effect at the date of this document.

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 an irrevocable unconditional bank guarantee or documentary performance bond for the Guarantee Amount which must:

(a) be denominated in Australian dollars;

(b) be an unconditional undertaking;

(c) be signed and issued by a bank licensed to carry on business in Australia, 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 having at all times an investment grade security rating from an industry recognised rating agency of at least:


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

(ii) Baa 1 (Moodys); or

(iii) Bbb (Bests);

(d) be issued on behalf of the Developer;

(e) have no expiry or end date;

(f) state the beneficiary as the City;

(g) be irrevocable;

(h) state the Guarantee Amount as the minimum amount required by this document to be lodged as security;

(i) state the purpose of the security as required in accordance with this document; and

(j) be on such other terms approved by the City.

Guarantee Amount(s) means a Guarantee or Guarantees for the total amount listed in Item 6 of Schedule 1 of this document.

Guarantee Amount(s) Due Date means the date or milestone by which the Developer must provide the Guarantee Amount to the City, set out at Item 7 of Schedule 1.

Index Number means the Consumer Price Index (Sydney all groups) published by the Australian Bureau of Statistics from time to time.

Insolvency Event means:

(a) having a controller, receiver, manager, administrator, provisional liquidator, liquidator or analogous person appointed;

(b) an application being made to a court for an order to appoint a controller, provisional liquidator, trustee for creditors or in bankruptcy or analogous person to the person or any of the person's property

(c) the person being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;

(d) an application being made to a court for an order for its winding up;

(e) an order being made, or the person passing a resolution, for its winding up;

(f) the person:

(i) suspending payment of its debts, ceasing (or threatening to cease) to carry on all or a material part of its business, stating that it is unable to pay its debts or being or becoming otherwise insolvent; or

(ii) being unable to pay its debts or otherwise insolvent; 9 AUSTRALIA\NTH\225465134.01

(g) the person taking any step toward entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;

(h) a court or other authority enforcing any judgment or order against the person for the payment of money or the recovery of any property; or

(i) any analogous event under the laws of any applicable jurisdiction,

unless this takes place as part of a solvent reconstruction, amalgamation, merger or consolidation that has been approved by the other party.

Land means the land described in Item 1 of Schedule 1 of this document.

Laws means all applicable laws, regulations, industry codes and standards, including all Environmental Laws.

Novation Deed means a deed on terms substantially consistent with the deed attached at Schedule 4 of this document.

Occupation Certificate has the same meaning as in the Act.

Personal Information has the meaning set out in the Privacy Act 1988 (Cth).

Personnel means the Developer’s officers, employees, agents, contractors or subcontractors.

Phase means a phase in the construction of the Development, being either:

(a) Phase 1 which relates to Buildings B and C;

(b) Phase 2 which relates to Building A;

(c) Phase 3 which relates to Building D;

(d) Phase 4 which relates to Building E;

(e) Phase 5 which relates to Building F;

(f) Phase 6 which relates to Building I; or

(g) Phase 7 which relates to Building G and H;

as those areas are identified in the document prepared by AECOM dated 7 October 2016 and identified as “Site Locality and Indicative Phasing”.

Phase 4 Reconciliation Date means the date of issue of an Occupation Certificate in respect of the Stage 2 Development Consent for Phase 4.

Phase 7 Reconciliation Date means the date of issue of an Occupation Certificate in respect of the Stage 2 Development Consent for Phase 7.

Phase Subdivision means the subdivision of Property 1 and or Property 2 into parcels to reflect each Phase.


Privacy Laws means the Privacy Act 1988 (Cth), the Privacy and Personal Information Protection Act 1998 (NSW), the Spam Act 2003 (Cth), the Do Not Call Register Act 2006 (Cth) and any other applicable legislation, principles, industry codes and policies relating to the handling of Personal Information.

Property 1 means the whole of the land contained in Lot 23 in DP 849857 and located at 149 -163 Mitchell Road Erskineville.

Property 2 means the whole of the land contained in Lot 2 in DP 772101 and located at 165-175 Mitchell Road Erskineville.

Public Benefits means the provision of benefits to the community by the Developer in the form and at the times specified in Schedule 3 which are comprised of the Section 94 Public Benefits and the DCP Public Benefits.

Quantity Surveyor means a qualified independent and practising quantity surveyor with at least five years’ experience in the assessment of building and construction costs.

Quantity Surveyor’s Assessment means the assessment by the Quantity Surveyor of the cost to deliver the Developer’s Works.

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

Remediation Action Plan means the document of this name as approved under the Development Consent.

Section 94 Credit means the amount by which the Attributed Value for Section 94 Public Benefits associated with a particular Phase exceeds the section 94 monetary contributions payable for that Phase.

Section 94 Monetary Contributions mean the section 94 monetary contributions imposed pursuant to any Stage 2 Development Consent.

Section 94 Public Benefits means the Public Benefits described as “S94 Works” and “S94 Land Dedication” in Schedule 3.

Stage 2 Development Application means subsequent detailed development applications for each respective Phase of the Development.

Stage 2 Development Consent means any consent granted in respect of a Stage 2 Development Application for the Development.

Standards means the policies, procedures and standards for carrying out the Developer’s Works, listed non-exhaustively at clause 6 of Schedule 3.

Subdivision of Land has the same meaning as in the Act.

Sunset Date has the meaning given in clause 8.2.

Tax means a tax, levy, duty, rate, charge, deduction or withholding, however it is described, that is imposed by law or by a Government Agency, together with any related interest, penalty, fine or other charge.


Transfer Land means land forming part of the Public Benefit that is to be either dedicated or transferred to the City in accordance with Schedule 3 of this document.

Trunk Drain Design Option X refers to design option for the trunk drain as shown on the drawing attached at Annexure B.

Trunk Drain Design Option Y refers to design option for the trunk drain as shown on the drawing attached at Annexure C.

1.2 Rules for interpreting this document

Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this document, 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) A reference to including means “including, without limitation”.

(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.

(j) This document 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. APPLICATION OF THE ACT AND THE REGULATION

2.1 Application of this document

This document is a planning agreement within the meaning of section 93F of the Act and applies to:

(a) the Land; and

(b) the Development.

2.2 Public Benefits to be made by Developer

Clause 5.1 and Schedule 3 set out the details of the:

(a) Public Benefits to be delivered by the Developer;

(b) time or times by which the Developer must deliver the Public Benefits; and

(c) manner in which the Developer must deliver the Public Benefits.

2.3 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 set out in Items 5 and 6 of Schedule 2 to this document.

2.4 City rights

This document does not impose an obligation on the City to:

(a) grant Development Consent for the Development; or

(b) exercise any function under the Act in relation to a change to an environmental planning instrument, including the making or revocation of an environmental planning instrument.

2.5 Explanatory note

The explanatory note prepared in accordance with clause 25E of the Regulation must not be used to assist in construing this document.


3. OPERATION OF THIS PLANNING AGREEMENT

3.1 Commencement

This document will commence on the date of execution of this document by all parties to this document.

3.2 Property 2 Landowner obligations

The parties acknowledge and agree that:

(a) the Property 2 Landowner has agreed to be a party to this document solely in its capacity as landowner pending completion of the sale of Property 2 to the Developer;

(b) if the sale of Property 2 by the Property 2 Landowner to the Developer completes, then where this document imposes obligations on the Developer in its capacity as owner of Property 1 then these obligations will be deemed to extend to the Developer in its capacity as owner of Property 2, with the necessary changes being made; and

(c) if the sale of Property 2 by the Property 2 Landowner to the Developer does not complete, then where this document imposes obligations in respect of a development application made which relates in any way to Property 2, these obligations are of no effect until the date consent to any such application is granted.

4. WARRANTIES

4.1 Mutual warranties

Each party represents and warrants that:

(a) (power) it has full legal capacity and power to enter into this document and to carry out the transactions that it contemplates;

(b) (corporate authority) it has taken all corporate action that is necessary or desirable to authorise its entry into this document and to carry out the transactions contemplated;

(c) (Authorisations) it holds each Authorisation that is necessary or desirable to:

(i) enable it to properly execute this document and to carry out the transactions that it contemplates;

(ii) ensure that this document is legal, valid, binding and admissible in evidence; or

(iii) enable it to properly carry on its business as it is now being conducted,

and it is complying with any conditions to which any of these Authorisations is subject;


(d) (documents effective) this document constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms (except to the extent limited by equitable principles and laws affecting creditors' rights generally), subject to any necessary stamping or registration;

(e) (solvency) there are no reasonable grounds to suspect that it will not be able to pay its debts as and when they become due and payable; and

(f) (no controller) no controller is currently appointed in relation to any of its property, or any property of any of its subsidiaries.

4.2 Developer warranties

(a) The Developer warrants to the City that, at the date of this document:

(i) it is the registered proprietor of Property 1;

(ii) it is legally entitled to apply for all consents and approvals that are required by this document and do all things necessary to give effect to this document but that at the date of this document the Developer is not the registered proprietor of Property 2;

(iii) all work performed by the Developer and the Personnel under this document will be performed with due care and skill and to a standard which is equal to or better than that which a well experienced person in the industry would expect to be provided by an organisation of the Developer’s size and experience; and

(iv) it is not aware of any matter which may materially affect the Developer’s ability to perform its obligations under this document.

(b) The Developer warrants to the City that, prior to commencing delivery of the Public Benefits it will have obtained all Authorisations and insurances required under any Law to carry out its obligations under this document.

4.3 Property 2 Landowner warranties

The Property 2 Landowner warrants to the City that, at the date of this document:

(a) it is the registered proprietor of Property 2;

(b) it is legally entitled to seek all consents and approvals that are required by this document and do all things necessary to give effect to this document;

(c) it is not aware of any matter which may materially affect the Property 2 Landowner’s ability to perform its obligations under this document.

5. PUBLIC BENEFITS

5.1 Developer to provide Public Benefits

The Developer must, at its cost and risk, provide the Public Benefits to the City in accordance with this document.


5.2 Trunk Drainage design election

By the later of:

(a) the date which is 12 months after the date of this document; and

(b) the date which is 28 days after the development consent for Phase 2 of the Development is issued,

(Notice Date), the City must provide the Developer with written notice nominating whether the trunk drainage works are to proceed in accordance with:

(c) Trunk Drain Design Option X; or

(d) Trunk Drain Design Option Y.

6. SECTION 94 PUBLIC BENEFITS

6.1 Subject to clause 5.1

The Developer acknowledges and agrees that nothing in this clause 6 affects the Developer’s obligation to provide the Public Benefits as specified in clause 5.1 of this document.

6.2 Adjustment of Attributed Value of Section 94 Public Benefits

(a) If the Developer and the City agree to vary the scope or standard of any of the Section 94 Public Benefits, the Attributed Value that relates to the varied Section 94 Public Benefits will be adjusted as follows:

(i) the Developer must engage a Quantity Surveyor to value the variation to the scope and or standard of the relevant Section 94 Public Benefits and its associated Attributed Value and prepare a written of this (Report);

(ii) the Developer must provide the Report to the City as soon as possible; and

(iii) the parties must approve the Attributed Value that relates to the varied Section 94 Public Benefits as detailed in the Report.

(b) The Developer and the City acknowledge and agree that any increase in the scope of Section 94 Public Benefits will require the parties to negotiate in good faith a deed of amendment to this document.

6.3 Ability to offset against section 94 obligations

The City acknowledges and agrees that the Attributed Value for the Section 94 Public Benefits will be offset against the total Section 94 Monetary Contributions due for the Development, irrespective of:

(a) the actual value of the Section 94 Public Benefits; and


(b) the due date specified for the payment of Section 94 Monetary Contributions, in accordance with the methodology set out in clauses 6 and 7.

6.4 Section 94 Credits

(a) The parties acknowledge and agree that a Section 94 Credit for a particular Phase can be applied against Section 94 Monetary Contributions payable for other Phases.

Note: By way of example, where Section 94 Monetary Contributions payable for a particular Phase exceed the value of the Section 94 Public Benefits associated with that Phase, the Developer may use any Section 94 Credits to satisfy the Section 94 Monetary Contribution payable.

(b) The Developer acknowledges and agrees that the existence of a Section 94 Credit does not entitle the Developer to:

(i) any refund of the value of the Section 94 Credit; or

(ii) any other concession to the value of the Section 94 Credit.

6.5 Ability to carry forward

If the total value of Section 94 Monetary Contributions for a particular Phase does not equal the total value of Section 94 Public Benefits associated with that Phase, the parties acknowledge and agree that:

(a) Section 94 Monetary Contributions otherwise payable for that Phase may be deferred to future Phases; and

(b) Section 94 Credits may be carried forward to future Phases.

6.6 Treatment of section 94 obligations

The parties acknowledge and agree that where the Attributed Value for a Phase:

(a) exceeds the Section 94 Monetary Contributions that would otherwise be payable under a condition of any Stage 2 Development Consent for the relevant Phase,

(i) the Section 94 Public Benefits that relate to the relevant Stage 2 Development Consent will fully satisfy the obligation to pay Section 94 Monetary Contributions for that Phase; and

(ii) a Section 94 Credit will be created; and

(b) is less than the Section 94 Monetary Contributions that would otherwise be required under a condition of any Stage 2 Development Consent for the relevant Phase:

(i) the Section 94 Public Benefits will partially satisfy the obligation to pay Section 94 Monetary Contributions for that Phase to the full extent of the Attributed Value; and


(ii) the Developer will apply a Section 94 Credit in relation to the difference.

7. SECTION 94 RECONCILIATIONS

7.1 General

The Developer acknowledges and agrees that although this document allows for Section 94 Monetary Contributions otherwise payable for a particular Phase to be deferred to future Phases under the reconciliation mechanism described in this clause 7, the liability of the Developer to pay Section 94 Monetary Contributions to the City is imposed pursuant to the relevant Stage 2 Development Consent for each Phase and not under this document.

7.2 Phase 4 Reconciliation

(a) Subject to clause 7.3, by the Phase 4 Reconciliation Date, the Developer shall calculate the sum of each of:

(i) Section 94 Monetary Contributions payable under the terms of each Development Consent for Phases 1 to 4 inclusive (Phase 1 to 4 Monetary Contribution Obligation); and

(ii) the Attributed Value of the Section 94 Public Benefits that have been delivered which are associated with Phases 1 to 4 inclusive (Phase 1 to 4 Attributed Value).

(b) The Developer shall provide to the City, for its approval, the calculations contemplated in clause 7.2(a) on the Phase 4 Reconciliation Date.

(c) The Phase 4 Residual Contribution Amount, if any, shall be calculated in accordance with the following formula:

A – B = Phase 4 Residual Contribution Amount

where

A = Phase 1 to 4 Monetary Contribution Obligation

B = Phase 1 to 4 Attributed Value

(d) Subject to clause 7.2(e), where the Phase 4 Residual Contribution Amount:

(i) is greater than zero, the Developer shall pay the Phase 4 Residual Contribution Amount to the City within 28 days of the Phase 4 Reconciliation Date; and

(ii) is less than zero, the Developer acknowledges and agrees that it is not entitled to any refund or concession of the amount by which the Phase 4 Residual Contribution Amount is less than zero.

(e) If there is a Dispute in relation to the Phase 4 Residual Contribution Amount:


(i) the Developer shall pay the portion of the Phase 4 Residual Contribution Amount which is not in dispute within 28 days of the Phase 4 Reconciliation Date; and

(ii) if the Phase 4 Residual Contribution Amount as determined following the procedure set out in clause 13 generates:

(A) an amount payable by the Developer in addition to any amount paid pursuant to clause 7.2(e)(i), any such amount must be paid by the Developer to the City within 28 days of that Dispute being resolved; or

(B) an amount to be refunded to the Developer, having regard to any amount paid pursuant to clause 7.2(e)(i), any such amount must be paid by the City to the Developer within 28 days of that Dispute being resolved.

7.3 Effect of Sale of Property 2 on Phase 4 Reconciliation

(a) Where the Developer has completed the purchase of Property 2 from the Property 2 Landowner by 6 January 2018 or such later date as is agreed between the Developer and the Property 2 Landowner and:

(i) a Construction Certificate has been issued in respect of Phase 5 prior to the issue of the first Occupation Certificate for Phase 4; or

(ii) if the Developer and the City otherwise agree,

no reconciliation will occur on the Phase 4 Reconciliation Date and the Section 94 Monetary Contributions payable, or Section 94 Credits created, in respect of Phases 1 to 4 inclusive may be carried forward to future Phases.

(b) Where the Developer has not completed the purchase of Property 2 from the Property 2 Landowner by 6 January 2018 or such later date as is agreed between the Developer and the Property 2 Landowner, clauses 7.2(a), 7.2(b), 7.2(c) and 7.2(d) apply.

7.4 Phase 7 Reconciliation

(a) By the Phase 7 Reconciliation Date, the Developer shall calculate the sum of each of:

(i) the Section 94 Monetary Contributions payable under the terms of each Development Consent for Phases 5 to 7 inclusive (Phase 5 to 7 Monetary Contribution Obligation);

(ii) the Attributed Value of the Section 94 Public Benefits that have been delivered which are associated with Phases 5 to 7 inclusive (Phase 5 to 7 Attributed Value); and

(iii) if Section 94 Monetary Contributions payable or Section 94 Credits have been carried forward to future Phases pursuant to clause 7.3(a):


(A) the Phase 1 to 4 Monetary Contribution Obligation; and

(B) the Phase 1 to 4 Attributed Value.

(b) The Developer shall provide to the City, for its approval, the calculations contemplated in clause 7.4(a) on the Phase 7 Reconciliation Date.

(c) The Phase 7 Residual Contribution Amount shall be calculated as follows:

(i) if Section 94 Monetary Contributions payable or Section 94 Credits have not been carried forward to future Phases pursuant to clause 7.3(a):

C + D = Phase 7 Residual Contribution Amount

where

C = Phase 5 to 7 Monetary Contribution Obligation

D = Phase 5 to 7 Attributed Value

(ii) if Section 94 Monetary Contributions payable or Section 94 Credits have been carried forward to future Phases pursuant to clause 7.3(a):

(A +C) – (B + D) = Phase 7 Residual Contribution Amount

where

A = Phase 1 to 4 Monetary Contribution Obligation

B = Phase 1 to 4 Attributed Value

C = Phase 5 to 7 Monetary Contribution Obligation

D = Phase 5 to 7 Attributed Value

(d) Subject to clause 7.4(e), where the Phase 7 Residual Contribution Amount:

(i) is greater than zero, the Developer shall pay the Phase 7 Residual Contribution Amount to the City at the completion of Phase 7; and

(ii) is less than zero, the Developer acknowledges and agrees that it is not entitled to any refund or concession of the amount by which the Phase 7 Residual Contribution Amount is less than zero.

(e) If there is a Dispute in relation to the Phase 7 Residual Contribution Amount:

(i) the Developer shall pay the portion of the Phase 7 Residual Contribution Amount which is not in dispute within 28 days of the Phase 7 Reconciliation Date; and

(ii) if the Phase 7 Residual Contribution Amount as determined following the procedure set out in clause 13 generates:


(A) an amount payable by the Developer in addition to any amount paid pursuant to clause 7.4(e)(i), any such amount must be paid by the Developer to the City within 28 days of that Dispute being resolved; or

(B) an amount to be refunded to the Developer, having regard to any amount paid pursuant to clause 7.4(e)(i), any such amount must be paid by the City to the Developer within 28 days of that Dispute being resolved.

8. COMPLETION

8.1 Date of Completion

Subject to clause 8.2, the Developer must ensure that the Developer’s Works reach Completion on or before the applicable date or milestone referred to in the table to clause 1 of Schedule 3 of this document.

8.2 Sunset Date for Completion

(a) The Developer’s Works associated with the construction of Phases 1 to 4 inclusive must reach Completion on or before the date which is 7 years after the date of issue of the first Construction Certificate for any of buildings B, C, A, D and E (the “Sunset Date”).

(b) If the Developer has not complied with its obligations under clause 8.2 by the Sunset Date, the City may exercise its rights under clause 12.4 in respect of Developer’s Works which were required to have been provided by the Sunset Date, but have not been provided.

8.3 Developer completion notice

When, in the reasonable opinion of the Developer, the Developer’s Works have reached Completion, the Developer must notify the City’s Representative in writing and must include in that notice:

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

(b) copies of any warranties, guarantees, maintenance information or other material reasonably required for the City to assume responsibility for the Developer’s Works; and

(c) at least three sets of the “as built” drawings of the Developer’s Works, including one set in electronic format,

(Completion Notice). For the avoidance of doubt, the Developer can issue separate Completion Notices at separate times for different elements of the Developer’s Works, however the Developer must ensure that Completion is achieved for the Developer’s Works before the applicable due date specified in Item 1 of Schedule 3.


8.4 Inspection by the City

(a) The City’s Representative must inspect the Developer’s Works within 5 Business Days of the date that the Completion Notice is received by the City. The City’s Representative may refuse to complete the inspection until the Completion Notice has been issued with all required documentation attached in accordance with clause 8.3. Within 10 Business Days of the date of the inspection by the City’s Representative, the City must by written notice to the Developer:

(i) state that Completion has been achieved;

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

(iii) issue a notice under clause 8.5(a).

(b) Nothing in this clause 8.4, or any notice issued under this clause 8.4, will:

(i) reduce or waive in any manner the Developer’s responsibility to:

(A) deliver the Developer’s Works in accordance with this document; or

(B) the Developer’s responsibility to correct Defects, errors or omissions, whether or not these are identified by the City; or

(ii) create any liability for the City in relation to any defective aspect of the Developer’s Works.

8.5 Non-completion of Public Benefits

(a) If the Developer makes a request by notice in writing not to complete the Public Benefits (or any part of the Public Benefits):

(i) the City may permit the Developer not to complete the Public Benefits (or any part of the Public Benefits) by issuing a notice in writing to the Developer stating that completion of the items identified in that notice is not required to fulfil the Developer’s obligations under this document; and

(ii) the City may make a claim on the Guarantee in such amount as the City considers necessary to complete the portion of Public Benefit not being delivered by the Developer.

(b) If the Developer fails to complete the whole of the Public Benefits in the form and to the standards required under the Development Consent or this document then the City may either:

(i) complete the Public Benefits itself, including by exercising its right to compulsorily acquire the Transfer Land in accordance with clause 12.8 of this document; or


(ii) modify the Public Benefits to reasonably achieve the objectives identified in the Development Consent and this document,

and may recover all costs of and reasonably incidental to that work from the Developer. The City can claim on the Guarantee in order to exercise this right, in which case the provisions of clause 12 will apply. To the extent that the City’s costs exceed the amount of the Guarantee, the City can recover this amount from the Developer as a debt due and owing to the City.

(c) If the City exercises its rights under this clause 8.5 to complete the Public Benefits, the Developer grants the City a non-exclusive licence for the period necessary for the City to access the Land to carry out, or procure the carrying out, of the Public Benefits.

9. INDEMNITY

The Developer indemnifies 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 Personnel) in connection with the performance of the Developer’s obligations under this document, except where the damage, expense, loss or liability suffered or incurred is caused by, or contributed to by, any wilful or negligent act or omission of the City (or any person engaged by the City).

10. DEFECTS LIABILITY

10.1 Security for Defects Liability Period

Until the expiry of the relevant Defects Liability Period, the City may retain from the Guarantee an amount equal to 10% of the Attributed Value of the Developer’s Works as security for the Developer’s performance of its obligations under this clause 10. The Developer must make any necessary arrangements to allow the provision of the Guarantee for the Defects Liability Period in accordance with this clause.

10.2 Defect in the Public Benefits

(a) If:

(i) the Developer is in breach of clause 5.1 of this document; or

(ii) the City notifies the Developer of a Defect in the Public Benefits within the Defects Liability Period,

then, following written notice from the City, the Developer must promptly correct or replace (at the Developer’s expense) the defective elements of the Public Benefits.

(b) If the Developer is unable or unwilling to comply with clause 10.2(a), or fails to rectify the Defect within three months of receiving notice from the City under clause 10.2(a), the City may:

(i) rectify the Defect itself;


(ii) make a claim on the Guarantee in accordance with clause 12 for the reasonable costs of the City in rectifying the Defect; and

(iii) to the extent the costs incurred to rectify the Defect exceeds the Guarantee, recover the reasonable costs from the Developer as a debt due and owing to the City.

(c) If the City requires access to the Land to rectify any Defect, the Developer grants the City and its contractors a non-exclusive licence for such period as is necessary for the City and its contractors to access the Land to carry out, or procure the carrying out, of the rectification works.

10.3 Maintenance of the Public Benefits

(a) The Developer must, to the extent required under this document, maintain the Public Benefits:

(i) as contemplated by item 9 of Schedule 1; and

(ii) for the period of 12 months from the date on which the Developer’s Works reach Completion.

(b) Without limiting or otherwise restricting any other provision of this document, the Developer warrants to the City that the Developer:

(i) has the skill, competence, resources, commitment and experienced personnel available to undertake the maintenance works and that all personnel used by the Developer to undertake the maintenance works possess the appropriate skills;

(ii) at all times will be suitably qualified and experienced, and shall exercise due skill, care and diligence in the carrying out and completion of the maintenance works; and

(iii) will ensure that the maintenance works:

(A) will be fit for purpose;

(B) comply with all legislative requirements; and

(C) comply with all the requirements of this document.

(b) If the Developer requires access to any part of the Land owned by the City to complete the Public Benefits referred to in this clause 10.3, the City grants the Developer a licence for the period necessary for the Developer to access the Land to carry out, or procure the carrying out, of the Public Benefits referred to in this clause 10.3.

11. REGISTRATION AND CAVEAT

11.1 Registration of this document

(a) The Developer:


(i) consents to the registration of this document at the Land and Property Information on the certificate of title to Property 1;

(ii) warrants that it has obtained all consents to the registration of this document on the certificate of title to Property 1; and

(iii) must within 20 Business Days of a written request from the City do all things necessary to allow the City to register this document on the certificate of title to Property 1, including but not limited to:

(A) producing any documents or letters of consent required by the Registrar-General of the Land and Property Information;

(B) providing the production slip number when the Developer produces the certificate of title to Property 1 at the Land and Property Information; and

(C) providing the City with a cheque for registration fees payable in relation to registration of this document at the Land and Property Information.

(iv) The Developer must act promptly in complying with and assisting to respond to any requisitions raised by the Land and Property Information that relate to registration of this document.

(b) The Property 2 Landowner:

(i) consents to the registration of this document at the Land and Property Information on the certificate of title to Property 2;

(ii) warrants that it will formally request all consents to the registration of this document on the certificate of title to Property 2 within 20 Business Days of the execution of this document by all parties; and

(iii) must within 20 Business Days of a written request from the City do the following to allow the City to register this document on the certificate of title to Property 2:

(A) producing any title documents required by the Registrar-General of the Land and Property Information;

(B) providing any letters of consent to registration of this document on the certificate of title to Property 2 which have been provided to the Property 2 Landowner; and

(C) providing the production slip number when the Developer produces the certificate of title to Property 2 at the Land and Property Information,

(iv) The Developer must provide the City with a cheque for registration fees payable in relation to registration of this document at the Land and Property Information.


(v) The Developer must act promptly in complying with and assisting to respond to any requisitions raised by the Land and Property Information that relate to registration of this document.

11.2 Caveat

(a) The City may, at any time after the date of this document, register a caveat over the Land preventing any dealing with the Land that is inconsistent with this document. Provided that the City complies with this clause 11.2(a), the Developer must not object to the registration of this caveat and may not attempt to have the caveat removed from the certificate of title to the Land.

(b) In exercising its rights under this clause 11.2(a) the City must do all things reasonably required to:

(i) remove the caveat from the Land once this document has been registered on the certificate of title to the Land; and

(ii) consent to the registration of:

(A) this document; and

(B) any plan of consolidation, plan of subdivision or other dealing required by this document or the Development Consent.

(c) Nothing in this clause 11.2 shall entitle the City to prevent the registration of the transfer of Property 2 to the Developer, and this clause is to be read subject to clause 15.2(a).

11.3 Release of this document

(a) If the Developer has provided all Public Benefits and otherwise complied with this document then the City must promptly do all things reasonably required to remove this document from the applicable certificate of title to the Land.

(b) Without limiting clause 11.3(a), the City acknowledges that the Developer may apply for one or more Phase Subdivisions (subject to obtaining and in accordance with an Authorisation). If the Developer has provided all Public Benefits required to be provided in connection with a Phase and otherwise complied with this document then the City must promptly do all things reasonably required to remove this document from the applicable certificate of title for the relevant Phase.

12. ENFORCEMENT

12.1 Developer to provide Guarantee

The Developer must deliver the Guarantee for the Guarantee Amount to the City by the Guarantee Amount Due Date.


12.2 Provision of Guarantee by reference to Phases

(a) The Developer must provide the Guarantee by way of the provision of seven separate guarantees, each with a value determined by reference to the Attributed Value of the Public Benefits associated with Phases 1 to 7 inclusive.

(b) The Developer must provide the guarantees associated with:

(i) Phases 1 to 4, prior to the issue of any construction certificate referable to Building B or C; and

(ii) Phases 5 to 7, prior to the issue of any construction certificate referable to Building F; and

(iii) the additional guarantees for Trunk Drainage for Option X prior to the issue of any construction certificate referable to Phases 3 and 4; or

(iv) the additional guarantees for Trunk Drainage for Option Y prior to the issue of any construction certificate referable to the relevant Phase for each of Phases 3 to 6.

12.3 Adjustment of Guarantee Amount

If requested by the City, on each anniversary of the date of the Guarantee (the “Adjustment Date”), the Guarantee Amounts are to be adjusted to a revised amount by applying the following formula:

RGA = GA x (A/B)

where:

RGA is the revised guarantee amount applicable from the relevant Adjustment Date GA is the Guarantee Amount that is current on the relevant Adjustment Date A is the Index Number most recently published before the relevant Adjustment Date B is the Index Number most recently published:

(i) before the date of the Guarantee for the first Adjustment Date; and

(ii) before the preceding Adjustment Date for every subsequent Adjustment Date

If after the formula is applied the revised Guarantee Amount will be less than the amount held at the preceding Adjustment Date, the Guarantee Amount will not be adjusted.


12.4 Right of City to claim on Guarantee

(a) The Developer 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 fails to comply with clause 4.2 of Schedule 3 of this document (provision of detailed design drawings and detailed costs estimate);

(ii) the City allows the Developer not to complete the Public Benefits, or any part of them, in accordance with clause 8.5(a)(ii);

(iii) an Insolvency Event occurs in respect of the Developer;

(iv) the Developer fails to deliver the Public Benefits in accordance with clause 8.5(b);

(v) the Developer fails to rectify a Defect in accordance with clause 10.2 of this document;

(vi) the detailed designs for the Developer’s Works for a Phase 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 relevant Phase of the Development;

(vii) the Developer’s Works do not reach Completion:

(A) for Phases 1 to 4 inclusive, by the Sunset Date; and

(B) for each of Phases 5 to 7 inclusive, within 36 months of the date of issue of the first Construction Certificate in respect of the relevant Phase of the Development (or such later time as agreed by the City in writing); or

(C) the City incurs any other expense or liability in exercising its rights and powers under this document.

(b) Any amount of the Guarantee appropriated by the City in accordance with clause 12.2 must be applied only towards:

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

(ii) carrying out any works required to achieve the Public Benefits.

12.5 Expenditure by the City

If the City claims on the Guarantee to Complete the Developer’s Works, then the City:

(a) is not required to expend more money than the Guarantee Amount and may elect not to carry out items of the Developer’s Works to ensure that


those works can be carried out for an amount equal to or less than the Guarantee Amount; or

(b) may expend more than the Guarantee Amount. If the City expends more money than the Guarantee Amount then the amount in excess of the Guarantee Amount will be deemed to be a debt due and owing to the City by the Developer.

12.6 Top-up of Guarantee

(a) If the City calls upon a Guarantee in accordance with this clause 12 then the Developer must immediately provide to the City a replacement Guarantee to ensure that, at all times until the relevant Guarantee is released in accordance with paragraph 12.7, the City is in possession of a Guarantee for a face value equivalent to the Guarantee Amount.

12.7 Return of Guarantee

(a) If:

(i) the monies secured by a Guarantee have not been expended;

(ii) the City has concurred with Completion in accordance with clause 8.4(a)(i) of this document, taking into account any approved non-completion of Public Benefits approved by clause 8.5(a) of this document; and

(iii) the Developer has complied with its obligations under clauses 7.2(d) (if applicable) and 7.4(d) if the time for compliance with those obligations has arisen;

(iv) the City has been provided with the security for the Defects Liability Period in accordance with clause 10.1,

then the City will promptly return the relevant Guarantee to the Developer following the issue of a notice pursuant to clause 8.4(a)(i) of this document. For the avoidance of doubt, the parties contemplate that this clause permits the progressive return of the Guarantees referred to in clause 12.2 in accordance with the Phases referred to in this document.

(b) If, following expiry of the Defects Liability Period, the City is satisfied that all defects in the relevant Phase have been rectified in accordance with clause 10 then the City must promptly return to the Developer the portion of the Guarantee retained by the City as security for the Defects Liability Period.

12.8 Compulsory acquisition

If the Developer fails to transfer or dedicate the Transfer Land to the City in accordance with Schedule 3 of this document then the City may compulsorily acquire that land for the amount of $1.00 in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). The City and the Developer agree that:


(a) this clause 12.8 is an agreement between the Developer and the City for the purposes of section 30 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW);

(b) in this clause 12.8 the Developer and the City have agreed on all relevant matters concerning the compulsory acquisition and the compensation to be paid for the acquisition; and

(c) the Developer must pay the City, promptly on demand, an amount equivalent to all costs incurred by the City in acquiring the whole or any part of the Transfer Land as contemplated by this clause 12.8.

13. DISPUTE RESOLUTION

13.1 Application

Any Dispute must be determined in accordance with the procedure in this clause 13.

13.2 Negotiation

(a) If any Dispute arises, a party to the Dispute (Referring Party) may by giving notice to the other party or parties to the Dispute (Dispute Notice) refer the Dispute to the Developer’s Representative, the Property 2 Landowner’s Representative and the City’s Representative for resolution. The Dispute Notice must:

(i) be in writing;

(ii) state that it is given pursuant to this clause 13; and

(iii) include or be accompanied by reasonable particulars of the Dispute including:

(A) a brief description of the circumstances in which the Dispute arose;

(B) references to any:

(aa) provisions of this document; and

(bb) acts or omissions of any person,

relevant to the Dispute; and

(C) where applicable, the amount in dispute (whether monetary or any other commodity) and if not precisely known, the best estimate available.

(b) Within 10 Business Days of the Referring Party issuing the Dispute Notice (Resolution Period), the Developer’s Representative, the Property 2 Landowner’s Representative and the City’s Representative must meet at least once to attempt to resolve the Dispute.


(c) The Developer’s Representative, the Property 2 Landowner’s Representative and the City’s Representative may meet more than once to resolve a Dispute. The Developer’s Representative, the Property 2 Landowner’s Representative and the City’s Representative may meet in person, via telephone, videoconference, internet-based instant messaging or any other agreed means of instantaneous communication to effect the meeting.

13.3 Not use information

The purpose of any exchange of information or documents or the making of any offer of settlement under this clause 13 is to attempt to settle the Dispute. Neither party may use any information or documents obtained through any dispute resolution process undertaken under this clause 13 for any purpose other than in an attempt to settle the Dispute.

13.4 Condition precedent to litigation

Subject to clause 13.5, a party must not commence legal proceedings in respect of a Dispute unless:

(a) a Dispute Notice has been given; and

(b) the Resolution Period has expired.

13.5 Summary or urgent relief

Nothing in this clause 13 will prevent a party from instituting proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

14. TAXES AND GST

14.1 Responsibility for Taxes

(a) The Developer is responsible for any and all Taxes and other like liabilities which may arise under any Commonwealth, State or Territory legislation (as amended from time to time) as a result of or in connection with this document or the Public Benefits.

(b) The Developer must indemnify the City in relation to any claims, liabilities and costs (including penalties and interest) arising as a result of any Tax or other like liability for which the Developer is responsible under clause 14.1(a).

14.2 GST free supply

To the extent that Divisions 81 and 82 of the GST Law apply to a supply made under this document:

(a) no additional amount will be payable by a party on account of GST; and

(b) no tax invoices will be exchanged between the parties.


14.3 Supply subject to GST

To the extent that clause 14.2 does not apply to a supply made under this document, this clause 14.3 will apply.

(a) If one party (Supplying Party) makes a taxable supply and the consideration for that supply does not expressly include GST, the party that is liable to provide the consideration (Receiving Party) must also pay an amount (GST Amount) equal to the GST payable in respect of that supply.

(b) Subject to first receiving a tax invoice or adjustment note as appropriate, the receiving party must pay the GST amount when it is liable to provide the consideration.

(c) If one party must indemnify or reimburse another party (Payee) for any loss or expense incurred by the Payee, the required payment does not include any amount which the Payee (or an entity that is in the same GST group as the Payee) is entitled to claim as an input tax credit, but will be increased under clause 14.3(a) if the payment is consideration for a taxable supply.

(d) If an adjustment event arises in respect of a taxable supply made by a Supplying Party, the GST Amount payable by the Receiving Party under clause 14.3(a) will be recalculated to reflect the adjustment event and a payment will be made by the Receiving Party to the Supplying Party, or by the Supplying Party to the Receiving Party, as the case requires.

(e) The Developer will assume the City is not entitled to any input tax credit when calculating any amounts payable under this clause 14.3.

(f) In this document:

(i) consideration includes non-monetary consideration, in respect of which the parties must agree on a market value, acting reasonably; and

(ii) in addition to the meaning given in the GST Act, the term "GST" includes a notional liability for GST.

15. DEALINGS

15.1 Dealing by the City

(a) The City may Deal with its interest in this document without the consent of the Developer if the Dealing is with a Government Agency. The City must give the Developer notice of the Dealing within five Business Days of the date of the Dealing.

(b) The City may not otherwise Deal with its interest in this document without the consent of the Developer, such consent not to be unreasonably withheld or delayed.


15.2 Dealing by the Developer and Property 2 Landowner

(a) The Developer and the Property 2 Landowner may Deal with this document without the consent of the City only as a result of the sale of the whole of Property 2 (without subdivision) by the Property 2 Landowner to the Developer and provided the City is given prior notice.

(b) Prior to registration of this document in accordance with clause 11:

(i) the Developer must not Deal with this document or Property 1 without:

(A) the prior written consent of the City; and

(B) the City, the Developer and the third party the subject of the Dealing entering into a Novation Deed; and

(ii) Other than as permitted under clause 15.2(a), the Property 2 Landowner must not Deal with this document or Property 2 without:


(B) the City, the Property 2 Landowner and the third party the subject of the Dealing entering into a Novation Deed.

(c) Other than as permitted under clause 15.2(a), on and from registration of this document in accordance with clause 11:

(i) The Developer may register a Phase Subdivision;

(ii) the Developer may register a plan of strata subdivision, and the City consents to this document remaining registered only on the certificate of title to the common property of the strata plan upon registration of the strata plan; and

(iii) the Developer must not otherwise Deal with this document to a third party that is not a purchaser of the whole or any part of Property 1 without:


(B) the City, the Developer and the third party the subject of the Dealing entering into a Novation Deed in respect of the Dealing.

(iv) the Property 2 Landowner must not otherwise Deal with this document to a third party that is not a purchaser of the whole or any part of the Property 2 without:


(B) the City, the Property 2 Landowner and the third party the subject of the Dealing entering into a Novation Deed in respect of the Dealing.


(d) For the avoidance of doubt, nothing in this clause 15 prohibits or places any restrictions on the Property 2 Landowner granting any lease or licence over the whole or any part of Property 2, and the requirements of clause 15.2(b)(ii) and clause 15.2(c)(iv) do not apply in respect of any grant of a lease or licence over the whole or any part of Property 2.

(e) The Developer must pay the City’s and the Property 2 Landowner’s reasonable costs and expenses relating to any consent or documentation required due to the operation of this clause 15.2.

15.3 Extinguishment or creation of interests on Transfer Land and Easement Land

(a) Prior to the dedication or transfer of the Transfer Land to the City, the Developer must:

(i) extinguish all leases and licences over the Transfer Land; and

(ii) use its best endeavours to extinguish all redundant encumbrances and those that, in the City’s opinion acting reasonably, would unreasonably impede the intended use of all or any part of the Transfer Land.

(b) Prior to the creation of the Easements the Developer must use its best endeavours to extinguish all encumbrances that, in the City’s opinion acting reasonably, would unreasonably impede the intended operation of the Easements.

(c) The Developer must comply with any reasonable directions by the City relating to the Transfer Land, including but not limited to the creation of any encumbrances over the Transfer Land.

16. TERMINATION

(a) The City may terminate this document by notice in writing to the Developer if the Development Consent lapses or is surrendered by the Developer.

(b) If the Development Consent lapses or is surrendered by the Developer, either the Developer or (while it is the owner of Property 2) the Property 2 Landowner, may by notice in writing to the City request the City to exercise its rights under clause 16(a) and the City must consent to any such request.

(c) If the City terminates this document pursuant to clause 16(a) then:

(i) the rights of each party that arose before the termination or which may arise at any future time for any breach or non-observance of obligations occurring prior to the termination are not affected;

(ii) the Developer must take all steps reasonably necessary to minimise any loss the each party may suffer as a result of the termination of this document;


(iii) the City will return the Guarantee to the Developer after first deducting any amounts owing to the City or costs incurred by the City by operation of this document. If in exercising its rights under this document the City expends more money than the Guarantee Amount then the amount in excess of the Guarantee Amount will be deemed to be a debt due and owing to the City by the Developer; and

(iv) the City must within 10 Business Days, at the Developer’s cost, do all things reasonably required to remove this document or any caveat from the certificate(s) of title to the Land, including by signing a request for removal of this document, or withdrawal of caveat, as applicable.

17. CONFIDENTIALITY AND DISCLOSURES

17.1 Use and disclosure of Confidential Information

A party (receiving party) which acquires Confidential Information of another party (disclosing party) must not:

(a) use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this document; or

(b) disclose any of the Confidential Information except in accordance with clauses 17.2 or 17.3.

17.2 Disclosures to personnel and advisers

(a) The receiving party may disclose Confidential Information to an officer, employee, agent, contractor, or legal, financial or other professional adviser if:

(i) the disclosure is necessary to enable the receiving party to perform its obligations or to exercise its rights under this document; and

(ii) prior to disclosure, the receiving party informs the person of the receiving party's obligations in relation to the Confidential Information under this document and obtains an undertaking from the person to comply with those obligations.

(b) The receiving party:

(i) must ensure that any person to whom Confidential Information is disclosed under clause 17.2(a) keeps the Confidential Information confidential and does not use it for any purpose other than as permitted under clause 17.2(a); and

(ii) is liable for the actions of any officer, employee, agent, contractor or legal, financial or other professional adviser that causes a breach of the obligations set out in clause 17.2(b)(i).


17.3 Disclosures required by law

(a) Subject to clause 17.3(b), the receiving party may disclose Confidential Information that the receiving party is required to disclose:

(i) by law or by order of any court or tribunal of competent jurisdiction; or

(ii) by any Government Agency, stock exchange or other regulatory body.

(b) If the receiving party is required to make a disclosure under clause 17.3(a), the receiving party must:

(i) to the extent possible, notify the disclosing party immediately it anticipates that it may be required to disclose any of the Confidential Information;

(ii) consult with and follow any reasonable directions from the disclosing party to minimise disclosure; and

(iii) if disclosure cannot be avoided:

(A) only disclose Confidential Information to the extent necessary to comply; and

(B) use reasonable efforts to ensure that any Confidential Information disclosed is kept confidential.

17.4 Receiving party's return or destruction of documents

On termination of this document the receiving party must immediately:

(a) deliver to the disclosing party all documents and other materials containing, recording or referring to Confidential Information; and

(b) erase or destroy in another way all electronic and other intangible records containing, recording or referring to Confidential Information,

which are in the possession, power or control of the receiving party or of any person to whom the receiving party has given access.

17.5 Security and control

The receiving party must:

(a) keep effective control of the Confidential Information; and

(b) ensure that the Confidential Information is kept secure from theft, loss, damage or unauthorised access or alteration.

17.6 Media releases

(a) Subject to clause 17.6(b), the Developer must not issue any information, publication, document or article for publication in any media concerning


this document or the Public Benefits without the City's prior written consent. The City must respond to any such request for consent within two Business Days and must not unreasonably withhold its consent.

(b) The restriction on the Developer specified in clause 17.6(a) does not apply to any information, publication, document or article for publication in any media which is issued by the Developer about the Development provided it does not reference this document or the Public Benefits.

18. TRUSTEE CAPACITY

18.1 Limitation of Liability – Greenland Golden Horse Investment Pty Ltd

(a) Greenland Golden Horse Investment Pty Ltd ACN 600 607 001 264 (Trustee Company) enters into this document solely in its capacity as trustee for The Greenland Golden Horse Investment Trust ABN 60 504 131 (Trust) and in no other capacity.

(b) A liability arising under or in connection with this document can be enforced against the Trustee Company only to the extent to which it can be satisfied out of the property of the Trust out of which the Trustee Company is actually indemnified for the liability.

(c) The limitation of the Trustee Company’s liability contained in this clause applies notwithstanding any other provision of this document and extends to all liabilities of the Trustee Company in connection with this document.

(d) The other parties to this document may not sue the Trustee Company in any other capacity other than as trustee of the Trust, including seeking the appointment to the Trustee Company of a receiver (except in relation to the property of the Trust), a liquidator, an administrator or any other similar person.

(e) The provisions of this clause will not apply to any liability or obligation of the Trustee Company to the extent that there is a reduction in the extent of its indemnification out of the assets of the Trust as a result of the operation of laws of Australia or the application of any provisions of the Trust’s constitution or to the extent that the Trustee Company fails to exercise any right of indemnity it has out of the assets of the Trust.

18.2 Trust representations and warranties

If a party enters into this document in its capacity as trustee of a trust (the party), the party represents and warrants to the City that:

(a) it has power to enter into this document in its capacity as trustee of the trust;

(b) it has the right to be indemnified to the value of the assets of the trust in respect of obligations incurred by it under this document and has not done anything to diminish its rights to be indemnified to the value of the assets of the trust;


(c) there are and will remain at all times while the party has obligations under this document, sufficient assets within the trust to ensure that the party is able to comply with those obligations;

(d) the trust has been validly created and is in existence at the date of this document and the trust will not vest or come to an end during the term of this document;

(e) no proceedings of any description have been or are likely to be commenced or threatened which could have a material adverse effect on the assets or financial position of the trust or it's trusteeship of the trust; and

(f) it is to the commercial benefit of the trust that the party enters into this document in its capacity, inter alia, as trustee of the trust.

18.3 Trustee obligations

If a party enters into this document in its capacity as trustee of a trust, that party must:

(a) immediately notify the City in writing if it ceases to be the trustee of the trust, and procure that any new trustee executes in favour of the City any documents or guarantees which the City requires and which are no more onerous than those required or obtained by the City under or in relation to this document; and

(b) notify the City immediately in writing if the trust is determined or for any reason ceases to exist, or if it is required or directed by any of the beneficiaries of the trust to do any act or thing in relation to the trust or the trust funds of the trust.

19. LIMITATION OF LIABILITY – PROPERTY 2 LANDOWNER ENTITIES

(a) The provisions of this clause apply despite anything to the contrary in this document.

(b) Definitions: in this clause 19

(i) Assets includes all assets, property and rights real and personal of any value whatsoever of the Trust.

(ii) Constitution means the constitution of the Trust as amended from time to time.

(iii) Obligations means all obligations and liabilities of whatever kind undertaken or incurred by, or devolving upon, the Property 2 Landowner under or in respect of this document.

(iv) Trust means Goodman Industrial Europe Finance Trust.

(v) Trustee means Goodman Europe Finance Pty Limited ACN 119 976 993.

(vi) Trustee Capacity means as trustee of the Trust.


(c) Limitation of Property 2 Landowner’s Liability

(i) Capacity

The Property 2 Landowner enters into this document as custodian for the Trust and in no other capacity.

(ii) Acknowledgement of capacity

The parties other than the Property 2 Landowner acknowledge that:

(A) the Obligations are incurred by the Property 2 Landowner solely in its capacity as custodian of the Assets; and

(B) the Property 2 Landowner will cease to have any Obligation under this document if the Property 2 Landowner ceases for any reason to be owner of the Assets.

(iii) Limitation

The Property 2 Landowner will not be liable to pay or satisfy any Obligations except to the extent to which it is indemnified or entitled to be indemnified:

(A) by the Trustee; or

(B) out of the Assets in respect of any liability incurred by it.

The obligation of the Trustee to indemnify the Property 2 Landowner and the right of the Property 2 Landowner to be indemnified out of the Assets are limited to the Assets of the Trust.

(iv) The parties other than the Property 2 Landowner may enforce their rights against the Property 2 Landowner arising from non-performance of the Obligations only to the extent of the Property 2 Landowner indemnities referred to in clause 19(c)(iii).

(v) Acknowledgment of limitations

Subject to clause 19(c)(vi), if any party other than the Property 2 Landowner does not recover all money owing to it arising from non-performance of the Obligations it may not seek to recover the shortfall by:

(A) bringing proceedings against the Property 2 Landowner in its personal capacity;

(B) applying to have the Property 2 Landowner wound up or proving in the winding up of the Property 2 Landowner.

(vi) Release

Except in the case of and to the extent of fraud, negligence or breach of duty on the part of the Property 2 Landowner, the parties other than the Property 2 Landowner waive their rights and release


the Property 2 Landowner from any personal liability whatsoever, in respect of any loss or damage:

(A) which they may suffer as a result of any:

• breach by the Property 2 Landowner of any of its Obligations; or

• non-performance by the Property 2 Landowner of the Obligations; and

(B) which cannot be paid or satisfied by the indemnities set out below in clause 19(d)(iii) in respect of any liability incurred by it.

(vii) Acknowledgment of limitations

The parties other than the Property 2 Landowner acknowledge that the whole of this document is subject to this clause, and subject to clause 19(c)(vi), the Property 2 Landowner shall in no circumstances be required to satisfy any liability arising under, or for non performance or breach of any Obligations under or in respect of, this document or under or in respect of any other document to which it is expressed to be a party out of any funds, property or assets other than to the extent that this document requires satisfaction out of the Assets under the Property 2 Landowner’s control and in its possession as and when they are available to the Property 2 Landowner to be applied in exoneration for such liability.

(viii) The parties acknowledge that the Trustee is responsible under the Constitution for performing a variety of obligations relating to the Trust, including under this document. The parties agree that no act or omission of the Property 2 Landowner (including any related failure to satisfy any Obligations) will constitute fraud, negligence or breach of duty of the Property 2 Landowner for the purposes of clause 19(c)(vi) to the extent to which the act or omission was caused or contributed to by any failure of the Trustee or any other person to fulfil its obligations relating to the Trust or by any other act or omission of the Trustee or any other person.

(ix) No attorney, agent or other person appointed in accordance with this document has authority to act on behalf of the Property 2 Landowner in a way which exposes the Property 2 Landowner to any personal liability and no act or omission of such a person will be considered fraud, negligence or breach of duty of the Property 2 Landowner for the purposes of clause 19(c)(vi).

(d) Limitation of Trustee’s Liability

(i) Capacity

The Trustee’s liability under this document is limited to the Trustee’s Capacity and the Trustee is not liable in any other capacity.


(ii) Limitation

Subject to clause 19(d)(iv) the liability of the Trustee in respect of any cause of action, claim or loss arising:

(A) under or in connection with this document;

(B) in connection with any transaction, conduct or any other agreement contemplated by this document; or

(C) under or in connection with (to the extent permitted by law) any representation or undertaking given or to be given in connection with this document,

(each, a Trust Claim), is limited to the Assets. The right of the parties other than the Trustee to recover any amount in respect of any (and all) Trust Claims is limited to a right to recover an amount not exceeding the amount which the Trustee is entitled and able to recover from the Assets (after taking account of the costs of exercising its right of indemnity or exoneration) and if, after exercise of those rights, any such amount remains outstanding, no further Trust Claim may be made against the Trustee personally.

(iii) Acknowledgment of limitations

The parties other than the Trustee agree and acknowledge that they must not, in respect of any Trust Claim:

(A) subject to clause 19(d)(iv), bring proceedings against the Trustee in its personal capacity;

(B) seek to appoint an administrator or liquidator to the Trustee;

(C) commence the winding-up, dissolution or administration of the Trustee; or

(D) appoint a receiver, receiver and manager, administrative receiver or similar official to all or any of the assets of the Trustee,

except to the extent that the steps taken affect any Assets or the Trustee’s right or recourse against, and indemnity from, the Assets and nothing else.

(iv) Exception

If the Trustee acts negligently, fraudulently, with wilful misconduct or in breach of trust with a result that:

(A) the Trustee’s right of indemnity, exoneration or recoupment of the Assets; or

(B) the actual amount recoverable by the Trustee in exercise of those rights,


is reduced in whole or in part or does not exist, then to the extent that such right or the amount so recoverable is reduced or does not exist, the Trustee may be personally liable.

20. PROPERTY 2 LANDOWNER TRUST WARRANTIES

(a) Definitions in this clause 20:



(iii) Trust means Goodman Industrial Europe Finance Trust.

(iv) Trustee means Goodman Europe Finance Pty Limited ACN 119 976 993.

(b) Warranties

The Property 2 Landowner represents and warrants that:

(i) (existence) the Trust has been duly established;

(ii) (sole trustee) it is the only trustee of the Trust;

(iii) (appointment and no removal) it has been validly appointed as trustee of the Trust and no action has been taken or proposed to remove it as trustee of the Trust;

(iv) (disclosure of terms) true copies of the Constitution (including any amending documents) have been provided to the Property 2 Landowner and disclose all the terms of the Trust;

(v) (power) it has power under the terms of the Trust to enter into the documents to which it is a party and comply with its obligations under them;

(vi) (authorisations) it has in full force and effect the authorisations necessary for it to enter into the documents to which it is a party, perform obligations under them and allow them to be enforced (including any authorisation required under the Constitution and its constitution (if any));

(vii) (indemnity) subject to clause 20 it has a right to be fully indemnified out of the Assets in respect of obligations incurred by it under the documents to which it is a party;

(viii) (no default) it is not in default under the Constitution;

(ix) (no termination) no action has been taken or proposed to terminate the Trust;


(x) (exercise of powers) it has not exercised its powers under the Constitution to release, abandon or restrict any power conferred on it by the Constitution; and

(xi) (benefit) entry into the documents to which it is a party is a valid exercise of its powers under the Constitution for the benefit of the beneficiaries.

(c) Non merger

This clause 20 does not merge on completion.

21. NOTICES

(a) A notice, consent or other communication under this document is only effective if it is in writing, signed and either left at the addressee's address or sent to the addressee by mail, electronic mail or fax. If it is sent by mail, it is taken to have been received 5 Business Days after it is posted. If it is sent by fax, it is taken to have been received when the addressee actually receives it in full and in legible form.

(b) A person's address, electronic mail and fax number are those set out in Schedule 1 for the City’s Representative, the Property 2 Landowner’s Representative and the Developer’s Representative, or as the person notifies the sender in writing from time to time.

22. GENERAL

22.1 Governing law

(a) This document is governed by the laws of New South Wales.

(b) Each party submits to the exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, and any court that may hear appeals from any of those courts, for any proceedings in connection with this document, and waives any right it might have to claim that those courts are an inconvenient forum.

22.2 Access to information

In accordance with section 121 of the Government Information (Public Access) Act 2009 (NSW), the Developer agrees to allow the City immediate access to the following information contained in records held by the Developer:

(a) information that relates directly to the delivery of the Public Benefits by the Developer;

(b) information collected by the Developer from members of the public to whom the Developer provides, or offers to provide, services on behalf of the City; and

(c) information received by the Developer from the City to enable the Developer to deliver the Public Benefits.


22.3 Liability for expenses

(a) The Developer must pay its own, the Property 2 Landowner’s, and the City’s expenses incurred in negotiating, executing, registering, releasing, administering and enforcing this document.

(b) The Developer must pay for all reasonable costs and expenses associated with the preparation and giving of public notice of this document and the explanatory note prepared in accordance with the Regulations and for any consent the City is required to provide under this document.

(c) The Developer and the City acknowledge and agree that the Property 2 Landowner will not be responsible for any expenses associated with negotiating, executing, registering, releasing, administering and enforcing this document.

22.4 Role and relationship of parties

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

(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; and

(c) The liability of the Developer and the Property 2 Landowner is several, not joint and several, under this document.

22.5 Giving effect to this document

Each party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this document.

22.6 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 document,

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 5pm on the specified day, it is taken to have been done on the following Business Day.

22.7 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 document without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

22.8 Preservation of existing rights

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

22.9 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 document for any reason, will not merge on the occurrence of that event but will remain in full force and effect.

22.10 Waiver of rights

A right may only be waived in writing, signed by the party giving the waiver, and:

(a) no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;

(b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and

(c) the exercise of a right does not prevent any further exercise of that right or of any other right.

22.11 Operation of this document

(a) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.

(b) Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.

(c) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.

22.12 Operation of indemnities

(a) Each indemnity in this document survives the expiry or termination of this document.

(b) A party may recover a payment under an indemnity in this document before it makes the payment in respect of which the indemnity is given.


22.13 Inconsistency with other documents

Unless the contrary intention is expressed, if there is an inconsistency between any of one or more of:

(a) this document;

(b) any Schedule to this document; and

(c) the provisions of any other document of the Developer,

the order of precedence between them will be the order listed above, this document having the highest level of precedence.

22.14 No fetter

Nothing in this document in any way restricts or otherwise affects the City’s unfettered discretion to exercise its statutory powers as a public authority.

22.15 Counterparts

This document may be executed in counterparts.


SCHEDULE 1

Agreement Details

ITEM TERM DESCRIPTION

1. Land Property 1 and Property 2.

2. Development The development the subject of the Development Application being the redevelopment of the Land as a mixed use precinct of residential, commercial and recreation uses involving 7 phases including building envelopes for nine development blocks ranging in height between 2 and 8 storeys and concept design for landscaping and public domain works.

The total Gross Floor Area for the development on the Land is 121,572.5 square meters with up to 10% additional floor space available for achieving design excellence

3. City’s Representative Name: Director, Planning, Development and Transport

Address: Level 1, 456 Kent Street, Sydney NSW 2000

Fax number: +612 9265 9518

Email: [email protected]

4. Developer’s Representative

Name: Project Manager, Greenland GH Investment Pty Limited

Address: Suite 201, 233 Castlereagh Street, Sydney, N.S.W 2000

Fax number: (02) 8262 1401


5. Property 2 Landowner’s Representative

Name: Head of Legal Property

Address: Level 17, 60 Castlereagh Street, Sydney NSW 2000

Fax number: (02) 9230 7444



6. Development Application

D/2015/966 being the Stage 1 DA Concept Plan relating to the Land (as may be modified from time to time), together with all subsequent development applications or amendments to development applications that relate to the Stage 1 DA Concept Plan.

7. Guarantee Amount A total amount of $17,102,658 (excluding Trunk Drain), representing the total cost of the Developer’s Works for each Phase of the Development as follows:

Phase 1: $2,035,076

Phase 2: $591,569

Phase 3: $1,432,726

Phase 4: $9,910,078

Phase 5: $2,109,764

Phase 6: $964,214

Phase 7: $59,231

Where Trunk Drainage Option X is elected, an additional amount in each of Phase 3 and 4 as follows:

Phase 3: $1,682,862

Phase 4: $9,962,048

Or where Trunk Drainage Option Y is elected an additional amount in each of Phase 3 to 6 inclusive as follows:

Phase 3: $1,817,135

Phase 4: $4,537,392

Phase 5: $5,488,717

Phase 6: $2,268,568


mailto:[email protected]

8. Guarantee Amount Due Date

For all Phases of the Development:

At least five Business Days before the first Construction Certificate is issued for the relevant Phase of the Development and as required by Clause 12.2.

9. Maintenance of Developer’s Works

As set out in Annexure A.


SCHEDULE 2

Requirements under the Act and Regulation (clause 2)

The below table summarises how this document complies with the Act and Regulation.

ITEM SECTION OF ACT OR REGULATION

PROVISION/CLAUSE OF THIS DOCUMENT

1. Planning instrument and/or development application (section 93F(1) of the Act)

The Developer has:

(a) sought a change to an environmental planning instrument;

(b) made, or proposes to make, a Development Application; or

(c) entered into an agreement with, or is otherwise associated with, a person, to whom paragraph (a) or (b) applies.

(a) No

(b) Yes

(c) No

2. Description of land to which this document applies (section 93F(3)(a) of the Act)

Item 1 of Schedule 1.

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

The Development as described in clause 2.1.

4. The scope, timing and manner of delivery of Public Benefits required by this document (section 93F(3)(c) of the Act)

Schedule 3 and Annexure A.

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

The application of sections 94 and 94A of the Act is not excluded in respect of the Development.

However, as contemplated by Item 7 of this Schedule 2, contributions (if any) under sections 94 or 94A will be offset in accordance with clauses 6 and 7 of this document. The




remaining amount of s94 contributions, if any, are payable in accordance with the Development Consent.

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

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

7. Consideration of benefits under this document if section 94 applies (section 93F(3)(e) of the Act)

Benefits as contemplated by this document are to be taken into consideration in determining a development contribution under section 94 of the Act.

8. Mechanism for Dispute Resolution (section 93F(3)(f) of the Act)

Clause 13

9. Enforcement of this document (section 93F(3)(g) of the Act)

Clause 12

10. No obligation to grant consent or exercise functions (section 93F(9) of the Act)

Clause 2.4

11. Registration of this document (section 93H of the Act)

Clause 11

12. Whether certain requirements of this document must be complied with before a construction certificate is issued (clause 25E(2)(g) of the Regulation)

Refer to the explanatory note

13. Whether certain requirements of this document must be complied with before a subdivision certificate is issued (clause 25E(2)(g) of the Regulation)


14. Whether certain requirements of this document must be complied with before an





occupation certificate is issued (clause 25E(2)(g) of the Regulation)

15. Whether the explanatory note that accompanied exhibition of this document may be used to assist in construing this document (clause 25E(7) of the Regulation)

Clause 2.5


SCHEDULE 3

Public Benefits (clause 5)

1. PUBLIC BENEFITS - OVERVIEW

The Developer must provide the Public Benefits in accordance with clause 6 and Schedule 3 and this document. The Attributed Value, timing of delivery and additional specifications relating to the Public Benefits is set out in the table below:

Item Category of Public Benefit

Description Due Date for Delivery Attributed Value

Phase 1 - Buildings B and C

1.1 DCP Public Benefits (works)

Construction of Foundry Street road reserve including intersection works at Ashmore Street and temporary western footway treatment adjacent to Building A and adjacent to McPherson Park, excluding the temporary turning head.

Prior to the issue of the first Occupation Certificate for Building B or C whichever occurs first.

$1,856,804

1.2 DCP Public Benefits (land dedication)

Dedication of 2,434m2 of land free of cost to Council comprising the Foundry Street road reserve as generally shown in draft subdivision plan annexure 2, not including temporary turning head.


Nil

1.3 Temporary works

Construction of a temporary turning head. Prior to the issue of the first Occupation Certificate for Building B or C whichever occurs first.

$31,548


Construction of a pedestrian link between Buildings B and C connecting Foundry Street to Mitchell Road (Pedestrian Link 1)


Nil

1.5 Creation of Interest in Land

Creation of right of footway of 727m2 for Pedestrian Link 1 between Buildings B and C.


Nil

1.6 S94 Works Construction of footpath and temporary street lighting on northern end of MacDonald Street adjacent to the south frontage of Building C between Mitchell Road and Foundry Street.


$146,724

1.7 S94 Land Dedication

Dedication of 250m2 of land free of cost to Council comprising the footway along the southern frontage of Building C (forming part of MacDonald Street) between Mitchell Road and Foundry Street


$250,000

Phase 2 - Building A

2.1 S94 Works Construction of a footpath along western edge of Building A fronting Kooka Walk.

Prior to the issue of the first Occupation Certificate for Building A.

$93,401


Dedication of 102 m2 land free of cost to Council comprising the footpath along the western frontage of Building A (forming part of Kooka Walk) between Ashmore Street and Stovemaker Lane.


$102,000



Construction of permanent footpath along eastern edge of Building A fronting Foundry Street.


$163,007


Construction of Stovemaker Lane pedestrian and cycle link between Building A and McPherson Park connecting Foundry Street to Kooka Walk.


$335,161


Dedication of 450m2 of land free of cost to Council comprising Stovemaker Lane West.


Nil

Phase 3 - Building D

3.1 S94 work Construction of Kooka Walk North including recycled water main between Ashmore Street and Stovemaker Lane.

Prior to the issue of the first Occupation Certificate for Building D.

$617,112


Dedication of 1,383m2 of land free of cost to Council comprising Kooka Walk North (for pedestrian access only) road reserve as generally shown in draft subdivision plan annexure 2.


$1,383,000


Construction of Metters Street from western boundary of site to Kooka Walk North including a temporary southern footway treatment adjacent to Building E.


$454,956


Dedication of 524m2 of land free of cost to Council comprising Metters Street road reserve as generally shown in draft subdivision plan annexure 2.


Nil


Construction of Coppersmith Lane from the western boundary of the site to the western edge of Kooka Walk and including the north-south extent from Metters Street.


$360,658


Dedication of 379m2 of land free of cost to Council comprising Coppersmith Lane (north-south and east-west) as a road reserve.


Nil

Phase 4 – Building E

4.1 Temporary works

Removal of temporary turning head and construction of permanent works to Foundry Street.

Prior to the issue of the first Occupation Certificate for Building E.

$31,195

4.2 S94 work Construction of Kooka Walk (central) between Stovemaker Lane and MacDonald Street, including construction of recycled water main below the Kooka Walk alignment.


$1,297,249


Dedication of 2,083m2 of land free of cost to Council comprising Kooka walk (central) for pedestrian access between Stovemaker Lane and MacDonald Street


$2,083,000


Construction of a Pedestrian Link 2 between Building E.

Prior to the issue of the first Occupation Certificate for Building E

Nil


Creation of right of footway of 272m2 over Pedestrian Link 2 between Building E.


nil


4.6 S94 Works Construction of MacDonald Street between western boundary of the site and Mitchell Road, including the construction of recycled water main below the MacDonald Street alignment at Kooka Walk.


$2,107,212

4.7 Temporary works

Construction of temporary footway on MacDonald Street on the northern edge of Buildings F and G.


$37,671


Construction of new signalised intersection at Mitchell Road and MacDonald Street, including demolition of existing roundabout (these works are offsite)

Prior to the issue of the first Occupation Certificate Building E.

$443,576


Dedication of 3,527m2 of land free of cost to Council comprising of MacDonald Street from the western site boundary to Mitchell Road


$3,527,000

4.10

S94 Works Construction of McPherson Park Prior to the issue of the first Occupation Certificate for Building E.

$4,493,175

4.11

S94 Land Dedication

Dedication of 7,446m2 of land free of cost to Council comprising McPherson Park


$7,446,000

4.12

S94 Works Construction of Public Art within McPherson Park.


$1,500,000

Phase 5 - Building F

5.1 S94 Works Construction of Kooka Walk including recycled water main between MacDonald Street and Alpha Street

Prior to the issue of the first Occupation Certificate for Building F

$1,463,521


Dedication of 2,405m2 of land to Council comprising Kooka Walk south between MacDonald Street and Alpha Street (for pedestrian access only) as generally shown in draft subdivision plan annexure 2.


$2,405,000


Construction of Alpha Street including a temporary footway treatment to adjacent Building I.


$438,937


Dedication of 677m2 of land free of cost to Council comprising the full Alpha Street road reserve as generally shown in draft subdivision plan annexure 2.


Nil


Construction of new intersection at Mitchell Road and Alpha Street


$64,197

5.6 S94 Works Completion of southern footpath of MacDonald Street footpath adjacent to Building F between Kooka Walk and Mitchell Road


$143,109

Phase 6 - Building I

6.1 S94 Works Construction of Kooka Walk including recycled water main between Alpha Street and Coulson Street.

Prior to the issue of the first Occupation Certificate for Building I

$868,525


Dedication of 1,437m2 of land to Council comprising Kooka Walk between Alpha Street and Coulson Street (for pedestrian access only) as generally shown in draft subdivision plan annexure 2.


$1,437,000



Construction of the southern footpath of Alpha Street adjacent to the Building I frontage.


$95,689

Phase 7 - Building G and H


Construction of Pedestrian Link 3 between Buildings G and H (Nassau Lane), extending between Hadfield Street and Kooka Walk

Prior to the issue of the first Occupation Certificate for Building G or H whichever is earlier

Nil


Embellishment of small strip of land within the site boundary adjacent to the Hadfield Street road reserve


$59,231


Dedication of 134m2 of land free of cost to Council adjacent to the Hadfield Street road reserve


Nil


Creation of right of footway of 380m2 over Pedestrian Link 3 (Nassau Lane) between Buildings G and H.


nil

Trunk Drainage Works - Option X – Ashmore Street to Mitchell Road



X3 S94 Works Construction of trunk drainage below the alignment of Kooka Walk (north) between Ashmore Street and the Stovemaker Lane.


$1,682,862

X 4.1

S94 Works Construction of trunk drainage below the alignment of Kooka Walk (central) from Stovemaker Lane and then running diagonally through McPherson Park terminating at Mitchell Road.


$2,842,672

X 4.2

S94 Works Extension of new trunk drain constructed by the City in MacDonald Street West and connection of the extension to the existing trunk drain in Kooka Walk. Removal of obsolete trunk drain within road reserve.

Prior to Occupation Certificate for Building E

$7,119,376

Trunk Drainage Works – Option Y - Ashmore Street to Coulson Street



Y3 S94 Works Construction of trunk drainage below the alignment of Kooka Walk (north) between Ashmore Street and the Stovemaker Lane.


$1,817,135

Y4 S94 Works Construction of trunk drainage below the alignment of Kooka Walk (central) between Stovemaker Lane and MacDonald Street.


$4,537,392

Y 5.1

S94 Works Construction of trunk drainage below the alignment of Kooka Walk (from south of MacDonald Street to Alpha Street.)

Prior to the issue of the first Occupation Certificate for Building F.

$4,758,503

Y S94 Works Upsize trunk drain in Kooka Walk to carry Prior to Occupation Certificate for $729,914


5.2 combined flows of north and west trunk drains. Building F Y6 S94 Works Construction of trunk drainage below the

alignment of Kooka Walk from Alpha Street and Coulson Street.

Prior to the issue of the first Occupation Certificate for Building I.

$2,268,586

2. TRANSFER LAND

2.1 Dedication of land – decision

The Developer must, at its cost, take all steps required to transfer the relevant item of Transfer Land to the City by the relevant due date specified in clause 1 of Schedule 3. As part of this obligation, the Developer must confirm with the City whether that Transfer Land is to be:

(a) dedicated to the City on registration of a plan of subdivision; or

(b) transferred to the City on registration of a transfer instrument.

2.2 Obligations on dedication

The requirement for the Developer to dedicate the Transfer Land to the City is satisfied where a deposited plan is registered in the register of plans held with the Registrar-General that dedicates land as a public road (including a temporary public road) under the Roads Act 1993 (NSW) or creates a public reserve or drainage reserve under the Local Government Act 1993 (NSW).

2.3 Obligations on transfer

(a) The requirement for the Developer to transfer the Transfer Land to the City is satisfied where:

(i) the City is given:

(A) an instrument in registrable form under the Real Property Act 1900 (NSW) duly executed by the Developer as transferor that is effective to transfer the title to the Transfer Land to the City when executed by the City as transferee and registered;

(B) the written consent to the registration of the transfer of any person whose consent is required to that registration; and

(C) a written undertaking from any person holding the certificate of title to the production of the certificate of title for the purposes of registration of the transfer.

(b) The Developer is to do all things reasonably necessary to enable registration of the instrument of transfer to occur.

(c) The Developer must ensure that the Transfer Land is free of all encumbrances and affectations (whether registered or unregistered and including without limitation any charge or liability for rates, taxes and charges) except for:


(i) any Easement for Water supply purposes (vide AG600007) that will sit within the proposed Metters St, MacPherson Park and MacDonald St as shown labelled (A) and (B) on Draft Subdivision plan ref 43757VPA;

(ii) redundant encumbrances and affectations which for the avoidance of doubt and uncertainty the Developer is to required to remove; and

(iii) any other encumbrances, agreed in writing by the City acting reasonably which would not unreasonably impede the intended use of all or any part of the Transfer Land.

(d) The Developer must indemnify and agree to keep indemnified the City against all claims made against the City as a result of any Contamination in, over, under or migrating from the whole or any part of the Transfer Land but only in relation to Contamination that existed on or before the date that the Transfer Land is dedicated to the City in accordance with the requirements of this clause

(e) The Developer warrants that as at the date of this document the Transfer Land is not subject to any Adverse Affectation and warrants as to those matters in Schedule 3 of the Conveyancing (Sale of Land) Regulation 2010 (NSW), unless otherwise notified to and agreed by the City in writing in its absolute discretion.

3. EASEMENTS

3.1 Creation

The Developer must, at its cost, take all steps required to create the Easements by the relevant due date specified in clause 1 of Schedule 3.

3.2 Obligations satisfied

(a) The requirement for the Developer to create the Easements is satisfied where:

(i) an instrument in registrable form under the Real Property Act 1900 (NSW) creating the Easements is registered at Land and Property Information; and

(ii) the Developer provides the City with written notice confirming the registration contemplate in (i) above together with the registration notice provided by Land and Property Information.

(b) The Developer is to do all things reasonably necessary to enable registration of the instrument creating the Easements to occur.

4. FINAL DESIGN OF THE DEVELOPER’S WORKS

4.1 Scope of Developer’s Works

As at the date of this document, the nature and extent of the required Developer’s Works is set out in Annexure A to this document. The parties agree


that further design refinement of the Developer’s Works may be necessary, having regard to:

(a) the extent to which the design of the Developer’s Works has been approved by the City;

(b) minor conditions affecting the Developer’s Works that were not reasonably capable of identification prior to the date of this document;

(c) the extent of any refinement of the design of the Developer’s Works permitted by this clause 2.3(e) of Schedule 3;

(d) any modification to the Development Consent made and approved under section 96 of the Act or any other development consent granted that relates to the Developer’s Works; and

(e) the reasonable requirements of the City, including in regard to the Standards.

4.2 Final design of Developer’s Works

(a) Prior to the issue of the first Construction Certificate for the respective Phase, the Developer must submit to the City’s Representative for approval:

(i) detailed design drawings of the Developer’s Works that reflect the plans and specifications set out in Annexure A; and

(ii) a detailed costs estimate (certified by a Quantity Surveyor) setting out the estimated cost of the Developer’s Works.

(b) Within 30 Business Days after the City’s Representative has received the detailed design drawings and detailed costs estimate, the City will inform the Developer in writing as to whether the detailed design drawings and costs estimate are approved. If the detailed design drawings or costs estimate are not approved, the City will inform the Developer in writing of what further information or modifications are required and the Developer will have a further 15 Business Days to re-submit the required information, following which the process outlined in this paragraph (b) will apply again.

(c) Regarding the costs estimate, the Developer agrees that the City may:

(i) reject items included within the Quantity Surveyor’s Assessment which are not directly related to the Developer’s Works;

(ii) require substantiation for the costs of items where the amount estimated is considered by the City to be excessive;

(iii) require an adjustment to the costs estimate to reflect a variation to the design required under this clause 4.2 of Schedule 3.

(d) If the Developer:

(i) fails to prepare the detailed design drawings or detailed costs estimate; or


(ii) does not provide further information or modify the detailed design drawings or detailed costs estimate,

in accordance with this clause 4.2 of Schedule 3, then the City may exercise its rights under clause 12 of this document in order to carry out the Developer’s Works itself at the cost of the Developer.

(e) The Developer agrees that the value of the Developer’s Works may be adjusted following completion of the process set out in this clause 4.2 of Schedule 3. The Developer acknowledges that the scope of the Developer’s Works will not change or reduce if the costs required to complete those works is greater than the amount estimated at the date of this document. Nothing in this clause affects the Developer’s rights under clause 4.3(b)(iii) of this Schedule 3.

4.3 Preparation of and changes to construction design drawings

(a) Following approval of the detailed design drawings by the City in accordance with clause 4.2 of Schedule 3, the Developer must promptly:

(i) prepare construction design drawings that comply with the detailed design drawings; and

(ii) provide the City with a copy of the construction design drawings.

(b) The City, acting reasonably, may by written notice to the Developer at any time, approve, vary or direct the Developer to vary the construction design drawings so that the Developer’s Works reflect:

(i) the Standards;

(ii) a departure or discrepancy from the plans approved under clause 4.2 of Schedule 3; or

(iii) any other standard or specification for materials or methodology for carrying out works that is adopted by the City from time to time, provided that any direction given under this clause 4.3(b)(iii) of Schedule 3 does not significantly increase:

(A) the cost of that element of the Developer’s Works; or

(B) the complexity of implementation of the Developer’s Works that may lead to a significant delay in the completion of the Developer’s Works.

(c) The parties acknowledge and agree that if the City exercises its rights under clause 4.3(b) of this Schedule 3, then clause 6.2 applies.

(d) Within 20 Business Days of receiving a notice from the City under clause 4.3(b) of Schedule 3 the Developer must:

(i) to the extent practicable, use reasonable endeavours to comply with the notice given by the City; or


(ii) if the Developer determines that the notice given by the City is unreasonable or impracticable, notify a dispute in accordance with clause 13 of this document.

If the Developer does not provide any response during the 20 Business Days after receiving a notice from the City under clause 4.3(b) of Schedule 3, it is deemed that the Developer accepts the notice given by the City and will take all steps required to comply with the notice.

(e) The City does not assume or owe any duty of care to the Developer in reviewing any design drawings submitted to it under this clause 4 of Schedule 3 or for any errors, omissions or non-compliance with this document.

(f) No participation by the City in the development of, the review of, or comments on any design drawings submitted by the Developer will lessen or otherwise affect the Developer’s obligations under this document or constitute an acknowledgement by the City that the Developer has complied with its obligations under this document.

5. CONSTRUCTION OF DEVELOPER’S WORKS

5.1 Insurance

(a) From commencement of the Developer’s Works until expiration of the Defects Liability Period, the Developer must effect and maintain (or cause to be effected and maintained under one or more policies of insurance and without requiring any risk to be double insured) the following insurances held with an insurer licensed by the Australian Prudential Regulation Authority or holding an investment grade rating from Standard & Poors, Moody’s or Fitch:

(i) worker's compensation insurance or registrations as required by Laws;

(ii) public liability insurance written on an occurrence basis with a limit of indemnity of not less than $20,000,000 covering all aspects of the Developer’s Works;

(iii) construction works insurance in relation to the Developer’s Works; and

(iv) motor vehicle third party cover with a limit of indemnity of not less than $20 million for each and every occurrence.

(b) The Developer must submit a copy of all certificates of insurance to the City:

(i) prior to commencing construction of the Developer’s Works; and

(ii) promptly following a written request by the City, provided that such a request is not made more than twice in any 12 month period.


5.2 Approvals and consents

The Developer must, at its cost, obtain all relevant approvals and consents for the Developer’s Works, whether from the City or from any other relevant Government Agency, including any necessary road opening permits. Before commencing the Developer’s Works, the Developer must if requested to do so give to the City copies of all approvals and consents for the Developer’s Works, other than the Development Consent.

5.3 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 any approval given by the City under this document;

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

(c) ensure that the Developer’s Works are Complete by the relevant due date specified in clause 1 of Schedule 3 and promptly after becoming aware advise the City’s Representative of any significant delays in completing the Developer’s Works or delays that may impact the delivery of the Public Benefits by the due date specified in Item 1 of Schedule 3; and

(d) comply with all reasonable directions of the City in respect to construction of the Developer’s Works.

5.4 Inspections by the City

The City, as a party to this document and not in its role as a Government Agency, may:

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

(b) notify the Developer’s Representative 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 an inspection.

Any failure by the City to identify a Defect, error or omission will not be construed as amounting to an acceptance by the City of the Defect, error or omission.

6. STANDARDS

The following list of Standards are included for information purposes only, and as a guide to the relevant standards for the general nature of the work identified as Developer’s Works in this document. The City makes no representation or warranty as to the currency of the standards identified, or their application on


the final design of the Developer’s Works. The Developer must make its own enquiries regarding whether any standard has been replaced or supplemented. In the event that an Australian Standard prescribed a different level of material, finish, work or workmanship than those contained in a City standard, then the higher of the two standards will apply. If there is a conflict between City standards then the Developer must request the City nominate the correct and applicable City standard. The City’s decision as to the applicable standard is final.

Relevant Australian Standards – Verge Works, Through site links

• AS 1725 Geotechnical Site investigations

• AS 4455 Masonry Units and segmental pavers

• AS 4678 Earth Retaining Structures

• AS 3600 Concrete Structures

• AS 2876 Concrete kerbs and channels

• AS 1158 Road Lighting

• AS 1743 Road signs

• AS 4282 Control of the Obtrusive Effects of Outdoor lighting

• AS 1428 Design for Access and Mobility

• AS 3500 Plumbing and Drainage

• AS 3700 Masonry Structures

• AS 2890 Parking Facilities

• As 4454 Composts, soil conditioners and mulches

Relevant Australian Standards – Roads (including pedestrian areas)

• AS 1725 Geotechnical Site investigations

• AS 4455 Masonry Units and segmental pavers

• AS 4678 Earth Retaining Structures

• AS 3600 Concrete Structures

• AS 2876 Concrete kerbs and channels

• AS 1158 Road Lighting

• AS 4282 Control of the Obtrusive Effects of Outdoor lighting


• AS 3500 Plumbing and Drainage


• AS 3700 Masonry Structures

• AS 2890 Parking Facilities


• AS 1742 Manual of uniform traffic control devices

• AS 1743 Road Signs

City Standards, Policies and Plans (All Works)

• City of Sydney Contaminated Lands DCP 2004

• Sydney Street Code 2013

• Sydney Lights Code

• City of Sydney Access Policy

• Sydney Street Technical Specification and drawings

• City of Sydney Street Tree Master Plan 2011

• Stormwater Drainage Strategy for mid block (prepared by Webb McKeown consulting engineers)

• Council of the City of Sydney Policy for Waste Minimisation in New Developments

Ashmore Precinct Concept Public Domain Design (listed below

Document Number Rev Document Title 60318562-SHT-CI-0001 5 COVER SHEET 60318562-SHT-CI-0002 4 DRAWING LIST 60318562-SHT-CI-0010 4 KEY PLAN 60318562-SHT-CI-0020 8 LOCALITY PLAN 60318562-SHT-CI-0021 8 GENERAL ARRANGEMENT PLAN SHEET 1 60318562-SHT-CI-0022 8 GENERAL ARRANGEMENT PLAN SHEET 2 60318562-SHT-CI-0023 8 GENERAL ARRANGEMENT PLAN SHEET 3 60318562-SHT-CI-0024 11 GENERAL ARRANGEMENT PLAN SHEET 4 60318562-SHT-CI-0025 10 GENERAL ARRANGEMENT PLAN SHEET 5 60318562-SHT-CI-0026 10 GENERAL ARRANGEMENT PLAN SHEET 6 60318562-SHT-CI-0027 9 GENERAL ARRANGEMENT PLAN SHEET 7 60318562-SHT-CI-0028 9 GENERAL ARRANGEMENT PLAN SHEET 8 60318562-SHT-CI-0029 8 GENERAL ARRANGEMENT PLAN SHEET 9 60318562-SHT-CI-0030 6 PUBLIC DOMAIN PLANS SHEET 1 60318562-SHT-CI-0031 5 PUBLIC DOMAIN PLANS SHEET 2 60318562-SHT-CI-0032 5 PUBLIC DOMAIN PLANS SHEET 3 60318562-SHT-CI-0033 6 PUBLIC DOMAIN PLANS SHEET 4 60318562-SHT-CI-0034 5 PUBLIC DOMAIN PLANS SHEET 5 60318562-SHT-CI-0035 5 PUBLIC DOMAIN PLANS SHEET 6 60318562-SHT-CI-0036 6 PUBLIC DOMAIN PLANS SHEET 7 60318562-SHT-CI-0037 5 PUBLIC DOMAIN PLANS SHEET 8 60318562-SHT-CI-0038 6 PUBLIC DOMAIN PLANS SHEET 9 60318562-SHT-CI-0040 11 TYPICAL SECTIONS SHEET 1 64 AUSTRALIA\NTH\225465134.01

60318562-SHT-CI-0041 10 TYPICAL SECTIONS SHEET 2 60318562-SHT-CI-0042 9 TYPICAL SECTIONS SHEET 3 60318562-SHT-CI-0043 11 TYPICAL SECTIONS SHEET 4 60318562-SHT-CI-0044 5 TYPICAL SECTIONS SHEET 5 60318562-SHT-CI-0090 4 DETAILS SHEET 1 60318562-SHT-CI-0094 5 DETAILS SHEET 2 60318562-SHT-CI-0095 5 DETAILS SHEET 3 60318562-SHT-CI-0100 7 LONGSECTIONS SHEET 1 60318562-SHT-CI-0101 7 LONGSECTIONS SHEET 2 60318562-SHT-CI-0102 7 LONGSECTIONS SHEET 3 60318562-SHT-CI-0103 6 LONGSECTIONS SHEET 4 60318562-SHT-CI-0104 6 LONGSECTIONS SHEET 5 60318562-SHT-CI-0105 7 LONGSECTIONS SHEET 6 60318562-SHT-CI-0106 6 LONGSECTIONS SHEET 7 60318562-SHT-CI-0107 6 LONGSECTIONS SHEET 8 60318562-SHT-CI-0108 7 LONGSECTIONS SHEET 9 60318562-SHT-CI-0109 6 LONGSECTIONS SHEET 10 60318562-SHT-CI-0110 6 LONGSECTIONS SHEET 11 60318562-SHT-CI-0111 6 LONGSECTIONS SHEET 12 60318562-SHT-CI-0112 6 LONGSECTIONS SHEET 13 60318562-SHT-CI-0113 6 LONGSECTIONS SHEET 14 60318562-SHT-CI-0114 6 LONGSECTIONS SHEET 15 60318562-SHT-CI-0115 6 LONGSECTIONS SHEET 16 60318562-SHT-CI-0116 6 LONGSECTIONS SHEET 17 60318562-SHT-CI-0117 2 KERB LONGSECTIONS SHEET 1 60318562-SHT-CI-0201 4 ROAD CROSS SECTIONS SHEET 1 60318562-SHT-CI-0202 6 ROAD CROSS SECTIONS SHEET 2 60318562-SHT-CI-0203 6 ROAD CROSS SECTIONS SHEET 3 60318562-SHT-CI-0204 6 ROAD CROSS SECTIONS SHEET 4 60318562-SHT-CI-0205 6 ROAD CROSS SECTIONS SHEET 5 60318562-SHT-CI-0206 6 ROAD CROSS SECTIONS SHEET 6 60318562-SHT-CI-0207 6 ROAD CROSS SECTIONS SHEET 7 60318562-SHT-CI-0208 6 ROAD CROSS SECTIONS SHEET 8 60318562-SHT-CI-0209 6 ROAD CROSS SECTIONS SHEET 9 60318562-SHT-CI-0210 6 ROAD CROSS SECTIONS SHEET 10 60318562-SHT-CI-0211 5 ROAD CROSS SECTIONS SHEET 11 60318562-SHT-CI-0212 5 ROAD CROSS SECTIONS SHEET 12 60318562-SHT-CI-0213 6 ROAD CROSS SECTIONS SHEET 13 60318562-SHT-CI-0214 6 ROAD CROSS SECTIONS SHEET 14 60318562-SHT-CI-0215 5 ROAD CROSS SECTIONS SHEET 15 60318562-SHT-CI-0216 5 ROAD CROSS SECTIONS SHEET 16 60318562-SHT-CI-0217 5 ROAD CROSS SECTIONS SHEET 17 60318562-SHT-CI-0218 5 ROAD CROSS SECTIONS SHEET 18 60318562-SHT-CI-0219 5 ROAD CROSS SECTIONS SHEET 19 60318562-SHT-CI-0220 5 ROAD CROSS SECTIONS SHEET 20 60318562-SHT-CI-0221 5 ROAD CROSS SECTIONS SHEET 21 60318562-SHT-CI-0222 5 ROAD CROSS SECTIONS SHEET 22 60318562-SHT-CI-0223 5 ROAD CROSS SECTIONS SHEET 23 60318562-SHT-CI-0224 5 ROAD CROSS SECTIONS SHEET 24 60318562-SHT-CI-0225 5 ROAD CROSS SECTIONS SHEET 25 60318562-SHT-CI-0226 5 ROAD CROSS SECTIONS SHEET 26 60318562-SHT-CI-0227 5 ROAD CROSS SECTIONS SHEET 27 60318562-SHT-CI-0228 5 ROAD CROSS SECTIONS SHEET 28 60318562-SHT-CI-0229 5 ROAD CROSS SECTIONS SHEET 29 65 AUSTRALIA\NTH\225465134.01

60318562-SHT-CI-0230 5 ROAD CROSS SECTIONS SHEET 30 60318562-SHT-CI-0231 5 ROAD CROSS SECTIONS SHEET 31 60318562-SHT-CI-0232 5 ROAD CROSS SECTIONS SHEET 32 60318562-SHT-CI-0233 5 ROAD CROSS SECTIONS SHEET 33 60318562-SHT-CI-0234 5 ROAD CROSS SECTIONS SHEET 34 60318562-SHT-CI-0235 6 ROAD CROSS SECTIONS SHEET 35 60318562-SHT-CI-0300 4 LINES AND SIGNS PLANS SHEET 1 60318562-SHT-CI-0301 4 LINES AND SIGNS PLANS SHEET 2 60318562-SHT-CI-0302 4 LINES AND SIGNS PLANS SHEET 3 60318562-SHT-CI-0303 6 LINES AND SIGNS PLANS SHEET 4 60318562-SHT-CI-0304 6 LINES AND SIGNS PLANS SHEET 5 60318562-SHT-CI-0305 6 LINES AND SIGNS PLANS SHEET 6 60318562-SHT-CI-0306 4 LINES AND SIGNS PLANS SHEET 7 60318562-SHT-CI-0307 4 LINES AND SIGNS PLANS SHEET 8 60318562-SHT-CI-0308 4 LINES AND SIGNS PLANS SHEET 9 60318562-SHT-CI-0400 1 DRAINAGE CATCHMENT PLAN 60318562-SHT-CI-0500 5 DRAINAGE PLAN SHEET 1 60318562-SHT-CI-0501 5 DRAINAGE PLAN SHEET 2 60318562-SHT-CI-0502 5 DRAINAGE PLAN SHEET 3 60318562-SHT-CI-0503 5 DRAINAGE PLAN SHEET 4 60318562-SHT-CI-0504 5 DRAINAGE PLAN SHEET 5 60318562-SHT-CI-0505 5 DRAINAGE PLAN SHEET 6 60318562-SHT-CI-0506 5 DRAINAGE PLAN SHEET 7 60318562-SHT-CI-0507 5 DRAINAGE PLAN SHEET 8 60318562-SHT-CI-0508 5 DRAINAGE PLAN SHEET 9 60318562-SHT-CI-0522 2 DRAINAGE PLAN OPTION 2 SHEET 1 60318562-SHT-CI-0525 2 DRAINAGE PLAN OPTION 2 SHEET 2 60318562-SHT-CI-0528 2 DRAINAGE PLAN OPTION 2 SHEET 3 60318562-SHT-CI-0600 5 DRAINAGE LONGSECTION SHEET 1 60318562-SHT-CI-0601 5 DRAINAGE LONGSECTION SHEET 2 60318562-SHT-CI-0602 5 DRAINAGE LONGSECTION SHEET 3 60318562-SHT-CI-0603 5 DRAINAGE LONGSECTION SHEET 4 60318562-SHT-CI-0604 5 DRAINAGE LONGSECTION SHEET 5 60318562-SHT-CI-0605 5 DRAINAGE LONGSECTION SHEET 6 60318562-SHT-CI-0606 5 DRAINAGE LONGSECTION SHEET 7 60318562-SHT-CI-0607 5 DRAINAGE LONGSECTION SHEET 8 60318562-SHT-CI-0608 5 DRAINAGE LONGSECTION SHEET 9 60318562-SHT-CI-0609 5 DRAINAGE LONGSECTION SHEET 10 60318562-SHT-CI-0610 5 DRAINAGE LONGSECTION SHEET 11 60318562-SHT-CI-0611 5 DRAINAGE LONGSECTION SHEET 12 60318562-SHT-CI-0612 5 DRAINAGE LONGSECTION SHEET 13 60318562-SHT-CI-0613 5 DRAINAGE LONGSECTION SHEET 14 60318562-SHT-CI-0614 5 DRAINAGE LONGSECTION SHEET 15 60318562-SHT-CI-0615 5 DRAINAGE LONGSECTION SHEET 16 60318562-SHT-CI-0616 5 DRAINAGE LONGSECTION SHEET 17 60318562-SHT-CI-0617 5 DRAINAGE LONGSECTION SHEET 18 60318562-SHT-CI-0618 5 DRAINAGE LONGSECTION SHEET 19 60318562-SHT-CI-0619 5 DRAINAGE LONGSECTION SHEET 20 60318562-SHT-CI-0620 5 DRAINAGE LONGSECTION SHEET 21 60318562-SHT-CI-0621 5 DRAINAGE LONGSECTION SHEET 22 60318562-SHT-CI-0622 5 DRAINAGE LONGSECTION SHEET 23 60318562-SHT-CI-0623 5 DRAINAGE LONGSECTION SHEET 24 60318562-SHT-CI-0624 5 DRAINAGE LONGSECTION SHEET 25 60318562-SHT-CI-0625 5 DRAINAGE LONGSECTION SHEET 26 66 AUSTRALIA\NTH\225465134.01

60318562-SHT-CI-0626 5 DRAINAGE LONGSECTION SHEET 27 60318562-SHT-CI-0627 5 DRAINAGE LONGSECTION SHEET 28 60318562-SHT-CI-0628 5 DRAINAGE LONGSECTION SHEET 29 60318562-SHT-CI-0629 5 DRAINAGE LONGSECTION SHEET 30 60318562-SHT-CI-0630 5 DRAINAGE LONGSECTION SHEET 31 60318562-SHT-CI-0631 5 DRAINAGE LONGSECTION SHEET 32 60318562-SHT-CI-0632 5 DRAINAGE LONGSECTION SHEET 33 60318562-SHT-CI-0633 2 DRAINAGE LONGSECTION SHEET 34 60318562-SHT-CI-0634 3 TRUNK DRAINAGE LONGSECTION OPTION 2 60318562-SHT-CI-0640 3 DRAINAGE PIT SCHEDULE SHEET 1 60318562-SHT-CI-0641 3 DRAINAGE PIT SCHEDULE SHEET 2 60318562-SHT-CI-0650 4 COMBINED SERVICES PLAN SHEET 1 60318562-SHT-CI-0651 4 COMBINED SERVICES PLAN SHEET 2 60318562-SHT-CI-0652 4 COMBINED SERVICES PLAN SHEET 3 60318562-SHT-CI-0653 4 COMBINED SERVICES PLAN SHEET 4 60318562-SHT-CI-0654 4 COMBINED SERVICES PLAN SHEET 5 60318562-SHT-CI-0655 4 COMBINED SERVICES PLAN SHEET 6 60318562-SHT-CI-0656 4 COMBINED SERVICES PLAN SHEET 7 60318562-SHT-CI-0657 4 COMBINED SERVICES PLAN SHEET 8 60318562-SHT-CI-0658 4 COMBINED SERVICES PLAN SHEET 9 60318562-SHT-CI-0701 5 UTILITIES PLAN WATER 60318562-SHT-CI-0711 5 UTILITIES PLAN AUSGRID (HV NETWORK) 60318562-SHT-CI-0721 5 UTILITIES PLAN SEWER 60318562-SHT-CI-0731 5 UTILITIES PLAN NBN 60318562-SHT-CI-0741 5 UTILITIES PLAN GAS 60318562-SHT-CI-0900 1 VEHICLE TRACKING SHEET 1 60318562-SHT-CI-0901 1 VEHICLE TRACKING SHEET 2 60318562-SHT-CI-0902 1 VEHICLE TRACKING SHEET 3 60318562-SHT-CI-0903 1 VEHICLE TRACKING SHEET 4 60318562-SHT-CI-0904 1 VEHICLE TRACKING SHEET 5 60318562-SHT-CI-0905 2 VEHICLE TRACKING SHEET 6 60318562-SHT-CI-0906 1 VEHICLE TRACKING SHEET 7 60318562-SHT-CI-0907 1 VEHICLE TRACKING SHEET 8 60318562-SHT-CI-0908 1 VEHICLE TRACKING SHEET 9 60318562-SHT-CI-0909 2 VEHICLE TRACKING SHEET 10


SCHEDULE 4

Novation Deed

Draft Deed of Novation (Planning Agreement)

The Council of the City of Sydney and Greenland Golden Horse Investment Pty Ltd ACN 600 607 001

as trustee for The Greenland Golden Horse Investment Trust ABN 60 504 131 264 and The Trust Company Limited as custodian for the Goodman Industrial Europe Finance Trust ABN [insert] and [Name of Party] ABN/ACN/ARBN [number] TRIM REF: S115891


CONTENTS

CLAUSE PAGE

1. DEFINITIONS AND INTERPRETATION ........................................................................ 70

1.1 Definitions .................................................................................................. 70 1.2 Rules for interpreting this document............................................................... 71

2. NOVATION ............................................................................................................. 71

3. RIGHTS AND OBLIGATIONS ..................................................................................... 71

4. RELEASE AND LIABILITY .......................................................................................... 71

4.1 City ............................................................................................................ 71 4.2 Outgoing Party ............................................................................................ 71

5. CONFIRMATION OF PLANNING AGREEMENT ............................................................... 72

6. REPRESENTATIONS AND WARRANTIES ...................................................................... 72

6.1 Authority .................................................................................................... 72 6.2 Authorisations ............................................................................................. 72

7. GENERAL ............................................................................................................... 72

THIS DEED OF NOVATION is made on 20[insert].

BETWEEN:

(1) The Council of the City of Sydney ABN 22 636 550 790 of Town Hall House, 456 Kent Street, SYDNEY NSW 2000 (the City);

(2) Greenland Golden Horse Investment Pty Ltd ACN 600 607 001 as trustee for The Greenland Golden Horse Investment Trust ABN 60 504 131 264 of Suite 201, Level 2, 233 Castlereagh Street, SYDNEY NSW 2000 (the Outgoing Party);

(3) The Trust Company Limited ACN 004 027 749 as custodian for the Goodman Industrial Europe Finance Trust of Level 12, 123 Pitt Street, Sydney NSW 2000(the Property 2 Landowner); and

(4) [Insert name] ABN [insert number] of [insert address] (the Incoming Party).

[drafting note: all references in this document to the Property 2 Landowner will be deleted if this Deed of Novation is entered into after completion of the sale of Property 2 to Greenland Golden Horse Investment Pty Ltd]

BACKGROUND

(A) The City, the Outgoing Party and the Property 2 Landowner are parties to the Planning Agreement.

(B) The Outgoing Party has requested its obligations under the Planning Agreement be novated to the Incoming Party in relation to the Transfer Land.

(C) The parties agree to novate the Planning Agreement as set out in this Deed.

THE PARTIES AGREE AS FOLLOWS:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

The following definitions apply in this document.

Effective Date means [insert date of completion of the sale of the Transfer Land]

Planning Agreement means the agreement named “Planning Agreement” dated [insert] entered into between the City, the Outgoing Party and the Property 2 Landowner registration number [insert] [OPTION as amended pursuant to [insert details of any amending documentation].

Transfer Land means [insert description of land] being that part of the Land subject to the Dealing.

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1.2 Rules for interpreting this document

Words and expressions defined in the Planning Agreement have the same meaning in this Deed.

2. NOVATION

The parties acknowledge and agree that the Planning Agreement is novated so that, on and from the Effective Date in respect of the Transfer Land:

(a) the Incoming Party replaces the Outgoing Party under the Planning Agreement; and

(b) any reference in the Planning Agreement to the Outgoing Party will be read as a reference to the Incoming Party.

3. RIGHTS AND OBLIGATIONS

On and from the Effective Date:

(a) the Incoming Party obtains the rights and assumes the obligations and liabilities of the Outgoing Party under the Planning Agreement in respect of the Transfer Land, in respect of events occurring on and after the Effective Date;

(b) the City and the Property 2 Landowner must continue to comply with their obligations and liabilities under the Planning Agreement on the basis that the Incoming Party has replaced the Outgoing Party under the Planning Agreement in accordance with this Deed; and

(c) [drafting note: this subclause to be deleted if the Transfer Land comprises the whole of Property 1] the Developer must continue to comply with its obligations and liabilities under the Planning Agreement other than in respect of the Transfer Land.

4. RELEASE AND LIABILITY

4.1 City

The City releases and discharges the Outgoing Party from:

(a) all of the Outgoing Party’s obligations and liabilities under the Planning Agreement; and

(b) all actions, claims, demands and proceedings that it may have against the Outgoing Party in respect of the performance of, and obligations under the Planning Agreement,

arising in respect of events occurring on or after the Effective Date.

4.2 Outgoing Party

The Outgoing Party releases and discharges the City from:

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(a) all of the City’s obligations and liabilities under the Planning Agreement; and

(b) all actions, claims, demands and proceedings that it may have against the City in respect of the performance of, and obligations under the Planning Agreement,

arising in respect of events occurring on or after the Effective Date, in respect of the Transfer Land.

5. CONFIRMATION OF PLANNING AGREEMENT

Subject to this Deed, the City, the Property 2 Landowner and the Incoming Party ratify and confirm the Planning Agreement, which remains fully effective.

6. REPRESENTATIONS AND WARRANTIES

6.1 Authority

Each party represents and warrants to each other party that it has full power and authority to enter into and perform its obligations under this Deed.

6.2 Authorisations

Each party represents and warrants to each other party that it has taken all necessary action to authorise the execution, delivery and performance of this Deed in accordance with its terms.

7. TRUSTEE CAPACITY

7.1 Limitation of Liability – Greenland Golden Horse Investment Pty Ltd

(a) Greenland Golden Horse Investment Pty Ltd ACN 600 607 001 264 (Trustee Company) enters into this document solely in its capacity as trustee for The Greenland Golden Horse Investment Trust ABN 60 504 131 (Trust) and in no other capacity.

(b) A liability arising under or in connection with this document can be enforced against the Trustee Company only to the extent to which it can be satisfied out of the property of the Trust out of which the Trustee Company is actually indemnified for the liability.

(c) The limitation of the Trustee Company’s liability contained in this clause applies notwithstanding any other provision of this document and extends to all liabilities of the Trustee Company in connection with this document.

(d) The other parties to this document may not sue the Trustee Company in any other capacity other than as trustee of the Trust, including seeking the appointment to the Trustee Company of a receiver (except in relation to the property of the Trust), a liquidator, an administrator or any other similar person.

(e) The provisions of this clause will not apply to any liability or obligation of the Trustee Company to the extent that there is a reduction in the extent of its indemnification out of the assets of the Trust as a result of the

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operation of laws of Australia or the application of any provisions of the Trust’s constitution or to the extent that the Trustee Company fails to exercise any right of indemnity it has out of the assets of the Trust.

7.2 Trust representations and warranties

If a party enters into this document in its capacity as trustee of a trust (the party), the party represents and warrants to the City that:

(a) it has power to enter into this document in its capacity as trustee of the trust;

(b) it has the right to be indemnified to the value of the assets of the trust in respect of obligations incurred by it under this document and has not done anything to diminish its rights to be indemnified to the value of the assets of the trust;

(c) there are and will remain at all times while the party has obligations under this document, sufficient assets within the trust to ensure that the party is able to comply with those obligations;

(d) the trust has been validly created and is in existence at the date of this document and the trust will not vest or come to an end during the term of this document;

(e) no proceedings of any description have been or are likely to be commenced or threatened which could have a material adverse effect on the assets or financial position of the trust or it's trusteeship of the trust; and

(f) it is to the commercial benefit of the trust that the party enters into this document in its capacity, inter alia, as trustee of the trust.

7.3 Trustee obligations

If a party enters into this document in its capacity as trustee of a trust, that party must:

(a) immediately notify the City in writing if it ceases to be the trustee of the trust, and procure that any new trustee executes in favour of the City any documents or guarantees which the City requires and which are no more onerous than those required or obtained by the City under or in relation to this document; and

(b) notify the City immediately in writing if the trust is determined or for any reason ceases to exist, or if it is required or directed by any of the beneficiaries of the trust to do any act or thing in relation to the trust or the trust funds of the trust.

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8. LIMITATION OF LIABILITY – PROPERTY 2 LANDOWNER ENTITIES

(a) The provisions of this clause apply despite anything to the contrary in this document.

(b) Definitions: in this clause 8



(iii) Obligations means all obligations and liabilities of whatever kind undertaken or incurred by, or devolving upon, the Property 2 Landowner under or in respect of this document.

(iv) Trust means Goodman Industrial Europe Finance Trust.

(v) Trustee means Goodman Europe Finance Pty Limited ACN 119 976 993.

(vi) Trustee Capacity means as trustee of the Trust.

(c) Limitation of Property 2 Landowner’s Liability

(i) Capacity

The Property 2 Landowner enters into this document as custodian for the Trust and in no other capacity.

(ii) Acknowledgement of capacity

The parties other than the Property 2 Landowner acknowledge that:

(A) the Obligations are incurred by the Property 2 Landowner solely in its capacity as custodian of the Assets; and

(B) the Property 2 Landowner will cease to have any Obligation under this document if the Property 2 Landowner ceases for any reason to be owner of the Assets.

(iii) Limitation

The Property 2 Landowner will not be liable to pay or satisfy any Obligations except to the extent to which it is indemnified or entitled to be indemnified:

(A) by the Trustee; or

(B) out of the Assets in respect of any liability incurred by it.

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The obligation of the Trustee to indemnify the Property 2 Landowner and the right of the Property 2 Landowner to be indemnified out of the Assets are limited to the Assets of the Trust.

(iv) The parties other than the Property 2 Landowner may enforce their rights against the Property 2 Landowner arising from non-performance of the Obligations only to the extent of the Property 2 Landowner indemnities referred to in clause 8(c)(iii).

(v) Acknowledgment of limitations

Subject to clause 8(c)(vi), if any party other than the Property 2 Landowner does not recover all money owing to it arising from non-performance of the Obligations it may not seek to recover the shortfall by:

(A) bringing proceedings against the Property 2 Landowner in its personal capacity;

(B) applying to have the Property 2 Landowner wound up or proving in the winding up of the Property 2 Landowner.

(vi) Release

Except in the case of and to the extent of fraud, negligence or breach of duty on the part of the Property 2 Landowner, the parties other than the Property 2 Landowner waive their rights and release the Property 2 Landowner from any personal liability whatsoever, in respect of any loss or damage:

(A) which they may suffer as a result of any:

(aa) breach by the Property 2 Landowner of any of its Obligations; or

(bb) non-performance by the Property 2 Landowner of the Obligations; and

(B) which cannot be paid or satisfied by the indemnities set out below in clause 8(d)(iii) in respect of any liability incurred by it.

(vii) Acknowledgment of limitations

The parties other than the Property 2 Landowner acknowledge that the whole of this document is subject to this clause, and subject to clause 8(c)(vi), the Property 2 Landowner shall in no circumstances be required to satisfy any liability arising under, or for non performance or breach of any Obligations under or in respect of, this document or under or in respect of any other document to which it is expressed to be a party out of any funds, property or assets other than to the extent that this document requires satisfaction out of the Assets under the Property 2 Landowner’s control and in its

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possession as and when they are available to the Property 2 Landowner to be applied in exoneration for such liability.

(viii) The parties acknowledge that the Trustee is responsible under the Constitution for performing a variety of obligations relating to the Trust, including under this document. The parties agree that no act or omission of the Property 2 Landowner (including any related failure to satisfy any Obligations) will constitute fraud, negligence or breach of duty of the Property 2 Landowner for the purposes of clause 8(c)(vi) to the extent to which the act or omission was caused or contributed to by any failure of the Trustee or any other person to fulfil its obligations relating to the Trust or by any other act or omission of the Trustee or any other person.

(ix) No attorney, agent or other person appointed in accordance with this document has authority to act on behalf of the Property 2 Landowner in a way which exposes the Property 2 Landowner to any personal liability and no act or omission of such a person will be considered fraud, negligence or breach of duty of the Property 2 Landowner for the purposes of clause 8(c)(vi).

(d) Limitation of Trustee’s Liability

(i) Capacity

The Trustee’s liability under this document is limited to the Trustee’s Capacity and the Trustee is not liable in any other capacity.

(ii) Limitation

Subject to clause 8(d)(iv) the liability of the Trustee in respect of any cause of action, claim or loss arising:

(A) under or in connection with this document;

(B) in connection with any transaction, conduct or any other agreement contemplated by this document; or

(C) under or in connection with (to the extent permitted by law) any representation or undertaking given or to be given in connection with this document,

(each, a Trust Claim), is limited to the Assets. The right of the parties other than the Trustee to recover any amount in respect of any (and all) Trust Claims is limited to a right to recover an amount not exceeding the amount which the Trustee is entitled and able to recover from the Assets (after taking account of the costs of exercising its right of indemnity or exoneration) and if, after exercise of those rights, any such amount remains outstanding, no further Trust Claim may be made against the Trustee personally.

(iii) Acknowledgment of limitations

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The parties other than the Trustee agree and acknowledge that they must not, in respect of any Trust Claim:

(A) subject to clause 8(d)(iv), bring proceedings against the Trustee in its personal capacity;

(B) seek to appoint an administrator or liquidator to the Trustee;

(C) commence the winding-up, dissolution or administration of the Trustee; or

(D) appoint a receiver, receiver and manager, administrative receiver or similar official to all or any of the assets of the Trustee,

except to the extent that the steps taken affect any Assets or the Trustee’s right or recourse against, and indemnity from, the Assets and nothing else.

(iv) Exception

If the Trustee acts negligently, fraudulently, with wilful misconduct or in breach of trust with a result that:

(A) the Trustee’s right of indemnity, exoneration or recoupment of the Assets; or

(B) the actual amount recoverable by the Trustee in exercise of those rights,

is reduced in whole or in part or does not exist, then to the extent that such right or the amount so recoverable is reduced or does not exist, the Trustee may be personally liable.

9. PROPERTY 2 LANDOWNER TRUST WARRANTIES

(a) Definitions in this clause 9:



(iii) Trust means Goodman Industrial Europe Finance Trust.

(iv) Trustee means Goodman Europe Finance Pty Limited ACN 119 976 993.

(b) Warranties

The Property 2 Landowner represents and warrants that:

(i) (existence) the Trust has been duly established;

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(ii) (sole trustee) it is the only trustee of the Trust;

(iii) (appointment and no removal) it has been validly appointed as trustee of the Trust and no action has been taken or proposed to remove it as trustee of the Trust;

(iv) (disclosure of terms) true copies of the Constitution (including any amending documents) have been provided to the Property 2 Landowner and disclose all the terms of the Trust;

(v) (power) it has power under the terms of the Trust to enter into the documents to which it is a party and comply with its obligations under them;

(vi) (authorisations) it has in full force and effect the authorisations necessary for it to enter into the documents to which it is a party, perform obligations under them and allow them to be enforced (including any authorisation required under the Constitution and its constitution (if any));

(vii) (indemnity) subject to clause 8 it has a right to be fully indemnified out of the Assets in respect of obligations incurred by it under the documents to which it is a party;

(viii) (no default) it is not in default under the Constitution;

(ix) (no termination) no action has been taken or proposed to terminate the Trust;

(x) (exercise of powers) it has not exercised its powers under the Constitution to release, abandon or restrict any power conferred on it by the Constitution; and

(xi) (benefit) entry into the documents to which it is a party is a valid exercise of its powers under the Constitution for the benefit of the beneficiaries.

(c) Non merger

This clause 9 does not merge on completion.

10. GENERAL

(a) This Deed is governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales in relation to all matters arising under, or relating to, this Deed.

(b) Each party will take all steps, execute all deeds and do everything reasonably required by any other party to give effect to any of the actions contemplated by this Deed.

(c) This Deed may consist of a number of counterparts and the counterparts taken together constitute one and the same instrument.

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(d) Nothing in this Deed in any way restricts or otherwise affects the City’s unfettered discretion to exercise its statutory powers as a public authority.

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EXECUTED as a deed.

Signed, sealed and delivered for THE COUNCIL OF THE CITY OF SYDNEY by its duly authorised officer, in the presence of:

Signature of officer

Signature of witness Name of officer

Name 456 Kent Street, Sydney NSW 2000

Position of officer

Address of witness

EXECUTED by Greenland Golden Horse Investment Pty Ltd in accordance with s127(1) of the Corporations Act 2001 (Cth):

Signature of director Signature of director/secretary

Name Name

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EXECUTED by The Trust Company Limited in accordance with s127(1) of the Corporations Act 2001 (Cth):


Name Name

EXECUTED by [INCOMING PARTY] [ABN] in accordance with s127(1) of the Corporations Act 2001 (Cth):


Name Name

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SCHEDULE 5

Easements

Instrument setting out terms of easements or profits à prendre intended to be created or released and of

restrictions on the use of land or positive covenants intended to be created pursuant to Section 88B of the

Conveyancing Act 1919

(Sheet 1 of 14 sheets)

Plan:

Plan of Easement for right of public access and Positive Covenant covered by Plan No. [insert]

Full name and address of the owner of the land:

[insert]

The Council of the City of Sydney ABN 22 636 550 790

456 Kent Street

Sydney NSW 2000

Part 1 (Creation)

Number of item shown in the intention panel on the

plan

Identity of easement, profit à prendre, restriction or positive covenant to be created and referred

to in the plan

Burdened lot(s) or parcel(s)

Benefited lot(s), road(s), bodies or Prescribed Authorities

1

Right of public access marked A on the Plan,

[X]m wide and variable, limited in height and in depth as delineated on the Plan (Through-Site

Link)

[insert] The Council of

the City of Sydney

2

Positive Covenant in relation to the right of public access

[insert] The Council of

the City of Sydney

Part 2 (Terms)

1 INTERPRETATION

1.1 DEFINITIONS

In this Instrument:

Act means the Environmental Planning and Assessment Act 1979 (NSW) (as amended) and includes any regulations made under the Act.

Authorised User means every person authorised by the Council of the City of Sydney for the purposes of the Easement created by this Instrument, including:

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(a) employees, agents, servants, contractors, workmen and licensees of the Council; and

(b) members of the public.

Council means the Council of the City of Sydney and its successors.

Easement means the easement in this Instrument and includes the conditions in relation to that easement.

Easement Site means, in relation to the Easement in this Instrument:

(a) the site of the Easement on the Plan, including any limitations by height or depth; and

(b) all items within the site of the Easement identified on the Plan which are the subject of the Easement.

Emergency Situation means any circumstance involving a need, for reasons of safety, for evacuation or egress from a building or other place, including fire, earthquake, flooding, terrorist activity and any training or test of such evacuation or egress.

Instrument means this instrument under section 88B of the Conveyancing Act 1919 (NSW).

Lot Burdened means the land referred to in Part 1 of this Instrument as being the land burdened by the Easement, or any part of it.

Owner of the Lot Burdened means every person who is at any time entitled to an estate or interest in the Lot Burdened, including any freehold or leasehold estate or interest in possession in the Lot Burdened and each part of the Lot Burdened.

Plan means the plan of easements registered together with this Instrument.

Planning Agreement means the planning agreement dated [#] between the Developer and the Council entered into pursuant to subdivision 2 of Division 6 of Part 4 of the Act.

Site means the land known as [insert] and comprising folio identifier [insert] [insert current title details at date of registration].

1.2 INTERPRETATION

(a) The singular includes the plural and the plural includes the singular.

(b) A gender includes all genders.

(c) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.

(d) ‘clause’, ‘paragraph’, ‘schedule’ or ‘sub-clause’ means a clause, paragraph, schedule or sub-clause respectively of this Instrument.

(e) Unless stated otherwise, one provision does not limit the effect of another provision.

(f) A reference to any law or to any provision of any law includes any modification or re-enactment of it, any legislative provisions substituted for it and all regulations and statutory instruments issued under it or them.

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(g) A reference to conduct includes any omission, statement or undertaking, whether or not in writing.

(h) Headings in this Instrument are for information purposes only and do not affect the interpretation of this Instrument.

(i) A reference to 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.

(j) An agreement on the part of, or in favour of, two or more persons binds, or is for the benefit of, them jointly and severally.

(k) Includes means includes but without limitation.

1.3 CONDITIONS

Each of the provisions of this Easement will constitute and be covenants and agreements by and between the Owner of the Lot Burdened and the Council for themselves and their respective successors, assigns and transferees with the intention and agreement that the benefit and burden of such covenants and agreements will pass with the benefit and burden of the Easement.

1.4 NO FETTER

(a) Nothing in this Instrument in any way restricts or otherwise affects the unfettered discretion of the Council in the exercise of its statutory powers as a public authority.

(b) If any conflict arises between the unfettered discretion of the Council in the exercise of its powers as a statutory authority and the performance of any right or obligation in this Instrument, the former prevails.

1.5 GST

(a) In this clause 1.5:

(i) GST Law has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth); and

(ii) terms used in this clause which are not defined in this Instrument, but which are defined in the GST Law, have the meanings given in the GST Law.

(b) Unless otherwise stated in this Instrument, amounts payable, and consideration to be provided, under any other provision of this document exclude GST.

(c) If GST is payable on a supply made in connection with this Instrument, the recipient must pay the party making the supply (supplier) an additional amount equal to the GST payable on that supply provided that the supplier first issues a tax invoice to the recipient.

(d) If an adjustment event arises in connection with a supply made in connection with this Instrument:

(i) the supplier must recalculate the GST payable to reflect the adjustment event;

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(ii) the supplier must give the recipient an adjustment note as soon as reasonably practicable after the supplier becomes aware of the adjustment event; and

(iii) the adjustment amount must be paid without delay either by the recipient to the supplier or by the supplier to the recipient as the case requires.

(e) If a payment to a party under this Instrument is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, the payment will be:

(i) reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense; and

(ii) then, increased by an amount equal to the GST payable if and to the extent that the payment is consideration for a taxable supply.

2 TERMS OF RIGHT OF PUBLIC ACCESS NUMBERED 1 ABOVE

2.1 TERMS OF THE EASEMENT

Subject to clauses 2.3, 2.4 and 2.5, the Owner of the Lot Burdened grants:

(a) to the Council and its Authorised Users full and free right to go, pass and repass over the Easement Site at all times:

(i) on foot or with wheelchairs or other disabled access aids, but excluding all other vehicles; and

(ii) with or without animals, for all lawful purposes; and

(b) to the Council the right to erect within the Easement Site such artworks, street furniture, directional signage and other improvements which the Council considers consistent with the purpose of the Easement Site specified in clause 2.2, provided the Council obtains the consent of the Owner of the Lot Burdened to such erection (which consent may not be unreasonably withheld).

2.2 PURPOSE OF EASEMENT

The Council and the Owner of the Lot Burdened acknowledge and agree that the Easement is being provided at no cost to the public and is for the purpose of providing access over the Easement Site to any member of the public.

2.3 WORKS TO LOT BURDENED

(a) Subject to ensuring the provision of access in accordance with clause 2.2 and compliance with the requirements of clause 2.4, the Owner of the Lot Burdened may carry out works of any nature on or about the Lot Burdened, including constructing, installing, removing, redeveloping or otherwise changing improvements on or about the Easement Site.

(b) Despite clause 2.3(a), the Owner of the Lot Burdened may not install or erect works of art, street furniture, awnings, tables and chairs associated with ground floor retail premises, notice boards or any other improvement at ground level or balconies above ground level within the Easement Site unless the Owner of the Lot Burdened obtains the consent of the Council to such erection (which consent may not be unreasonably withheld).

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2.4 RESTRICTIONS ON ACCESS

The Owner of the Lot Burdened may temporarily close, or temporarily restrict access through part (but not all) of the Easement Site for the purpose of, or as a result of:

(a) the construction, repair or maintenance of any improvement on the Site; or

(b) carrying out obligations under clause 3.1 or any other obligation under this Instrument,

provided that:

(c) such restriction is for a period not exceeding one month or such other period of time as agreed by the Council; and

(d) the Owner of the Lot Burdened:

(i) obtains the prior written consent of the Council and complies with any conditions imposed on that consent; and

(ii) takes reasonable steps to minimise the disturbance caused in accordance with the rights granted under clause 2.1.

2.5 EMERGENCIES

(a) The Owner of the Lot Burdened may restrict temporarily access to the Easement Site in an Emergency Situation provided that it gives as much notice as is practicable to the Council and uses all reasonable endeavours to resolve the Emergency Situation and restore access to the Easement Site as soon as possible.

(b) The Council may erect temporary signage or barriers on the Easement Site to restrict temporarily access to the Easement Site by members of the public if it reasonably forms the view that such access is unsafe.

(c) Despite any other provision of this Instrument:

(i) the Owner of the Lot Burdened must allow the Easement Site to be used for access by all emergency and other essential service organisations; and

(ii) the Owner of the Lot Burdened must not interfere with such access.

2.6 INDEMNITY

The Owner of the Lot Burdened indemnifies the Council against any claims or damages arising from the use of the Easement Site by the Council and any of its Authorised Users except where the claim or damage is caused by, or contributed to by, the wilful or negligent act or omission of the Council.

2.7 PERSONS EMPOWERED TO RELEASE, VARY OR MODIFY THE RIGHT OF PUBLIC ACCESS

This Right of Public Access may only be released, varied or modified with the consent of both the Council and the Owner of the Lot Burdened.

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3 TERMS OF POSITIVE COVENANT IN RELATION TO THE RIGHT OF PUBLIC ACCESS NUMBERED 1 ON THE PLAN

3.1 MAINTENANCE OF EASEMENT SITE

The Owner of the Lot Burdened must:

(a) at all times, maintain the Easement Site (including the lighting) in good repair;

(b) not permit the Easement Site to fall into disrepair so that the use of the Easement Site becomes unsafe or impractical or impossible;

(c) keep the Easement Site clean and free from rubbish;

(d) if required by Council, permit the Council to enter the Easement Site with equipment, machinery and street sweeping vehicles to clean the Easement Site after special events, including New Year’s Eve; and

(e) if required by Council, upgrade and refurbish the Easement Site, in accordance with the reasonably requirements of, and to the reasonable satisfaction of, the Council, including in accordance with the requirements of the Council’s Public Domain Manual.

3.2 PUBLIC LIABILITY INSURANCE

(a) The Owner of the Lot Burdened must take out and maintain a public liability insurance policy with respect to any liabilities to the Council or any other person for the death or injury of any person within or about the Easement Site for an amount in respect of any single accident of not less than $20 million, or such higher amount as may be required by the Council (acting reasonably).

(b) The policy referred to in paragraph 3.2(a) must:

(i) note the Council as an interested party; and

(ii) be taken out and maintained with an insurer licensed by the Australian Prudential Regulation Authority to operate in Australia or have an investment grade security rating from an industry recognised rating agency such as Standard and Poors, Moodys or Bests.

3.3 PERSONS EMPOWERED TO RELEASE, VARY OR MODIFY THE POSITIVE COVENANT

This Positive Covenant may only be released, varied or modified with the consent of both Council and the Owner of the Lot Burdened.

Dated........................................................................

Execution by the parties:

Signed for and on behalf of Council of the City of Sydney by its duly authorised person in the presence of:

) ) )

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.....................................................................

Signature of Witness

.....................................................................

Name of Witness (print)

.....................................................................

.....................................................................

Address of Witness (print)

...................................................................

Signature of authorised person

...................................................................

Name of authorised person (print)

[insert appropriate execution block for owner]

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EXECUTED as a deed.

Signed, sealed and delivered for THE COUNCIL OF THE CITY OF SYDNEY by its duly authorised officer, in the presence of:

Signature of officer

Signature of witness Name of officer

Name 456 Kent Street, Sydney NSW 2000

Position of officer

Address of witness

EXECUTED by Greenland Golden Horse Investment Pty Ltd in accordance with s127(1) of the Corporations Act 2001 (Cth):


Name Name

EXECUTED by The Trust Company Limited by the party’s attorney pursuant to power of attorney dated ………. Who states that no notice of revocation of the power of attorney has been received in the presence of:

Signature of witness Signature of attorney

Name Name

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mitchelln

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mitchelln

Text Box

PEDESTRIAN LINK 1

mitchelln

Polygon

mitchelln

Text Box

KOOKA WALK CENTRAL

mitchelln

Text Box

KOOKA WALK SOUTH

mitchelln

Polygon

mitchelln

Polygon

mitchelln

Polygon

mitchelln

Text Box

07/10/2016

mitchelln

Polygon

hammondw

Rectangle

mitchelln

Text Box

FIGURE TITLE: SITE LOCALITY AND INDICATIVE PHASING

mitchelln

Text Box

1.5

hammondw

Polygon Line

mitchelln

Text Box

Greenland Golden Horse Investment Pty Ltd (ACN: 600 607 001) as trustee for The Greenland Golden Horse Investment Trust (ABN: 60 504 131 264)

mitchelln

Rectangle

mitchelln

Text Box

60515140

mitchelln

Polygon Line

mitchelln

Polygon Line

mitchelln

Polygon Line

mitchelln

Polygon Line

mitchelln

Text Box

DATE

mitchelln

Text Box

INTERIM PHASING

mitchelln

Polygon Line

mitchelln

Polygon Line

mitchelln

Polygon Line

mitchelln

Polygon Line

mitchelln

Text Box

NASSAU LANE

mitchelln

Text Box

ASHMORE PRECINCT

mitchelln

Text Box

BUILDING B

mitchelln

Text Box

BUILDING C

mitchelln

Text Box

BUILDING A

mitchelln

Text Box

MCPHERSON PARK

mitchelln

Text Box

BUILDING E

mitchelln

Text Box

BUILDING G

mitchelln

Text Box

BUILDING H

mitchelln

Text Box

BUILDING F

mitchelln

Text Box

BUILDING I

mitchelln

Text Box

BUILDING D

mitchelln

Text Box

BUILDING E

mitchelln

Text Box

1

mitchelln

Text Box

2

mitchelln

Text Box

3

mitchelln

Text Box

4

mitchelln

Text Box

5

mitchelln

Text Box

7

mitchelln

Text Box

6

ANNEXURE A

Public Benefits – Transfer Land

92

K O

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A

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M A C D O N A L D

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4673m²

PT

16596m²

PT

16984m²

TOTAL 14307m²

McP

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RS

ON

PA

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7446m²

PT

41462m²

PT

42954m²

TOTAL 4688m²

8767m²

6283m²

2651m²

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Filename: P:\603X\60318562\5. CAD\02-SHEETS\60318562-SHT-CI-0023.DWG

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This drawing is confidential and shall only be used for the purpose of this project. The signing of this title block confirms the design and drafting of this project have been prepared and checked in accordance with the AECOM quality assurance system to ISO 9001-2000.

ISO A1 594mm x 841mm

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REFER INSET A FOR CONTINUATION

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Last saved by: NICHOLSONJ2(2016-08-30) Last Plotted: 2016-08-30

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ANNEXURE A

Public Benefits - Additional specifications

1. Maintain all plants, trees and planted areas in optimum growing condition and appearance. which shall include but is not limited to:

(a) Water all plants and trees as required to ensure active growth keeping areas moist but not saturated.

(b) Apply maintenance period fertiliser in accordance with the manufacturer’s specifications.

(c) Keep planting areas free of weeds and undesirable grasses. Remove the entire root system. Dispose of all weeds appropriately.

(d) Inspect all plants and trees for disease or insect damage weekly. Treat affected material immediately.

(e) Remove damaged or diseased growth from plants and trees.

(f) Immediately replace any failed or damaged plants and trees. Replacement plants and trees shall be of equal size and species as the original plant.

(g) Reset to proper grades or upright position any plants that are not in their proper growing position.

(h) Stakes and ties must be adjusted or replaced as required.

(i) Prune plants and trees in order to repair mechanical damage, improve plant shape and to form or clear footpaths.

(j) Turfed areas must be mowed when sufficient establishment of turf has occurred including but not limited to adequate root contact/anchoring and root depth. All edges must be trimmed. Lawn clippings must be removed from site. Adjust the height of the mower to the lowest level where the lawn has a green appearance without being scalped.

(k) Topdress lawn when required and replace any areas of subsidence or dead turf which are greater than 1m2 in area. Apply lawn fertiliser to ensure healthy growth in the growing season. Remove by hand all weed growth or grass around base of plants in turf. Do not use nylon line type edge trimmers around base of trees.

98

ANNEXURE B

Trunk Drain Design Option X

99

N

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ADJOINS CI-0507

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I-0525

draft planning agreement: 57 ashmore st & 165-175 mitchell ...€¦ · 1.2 rules for...

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