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DevelopmentagreementCivic Precinct- Site I, CentralDandenong
Urban Renewal Authority Victoria (Places Victoria)
City of Greater Dandenong (Developer)
Minter Ellison I Rat MEA ANS 30-6684923
15672795: 8904401_21ME_94532379_51w200s*)
RCD Development Agreement-Civic Precinct Site 11 page 2
RCD Development AgreementCivic Precinct- Site I, Central Dandenong
Information table
Agreed terms,. Defined terms&interpretation1.1 Defined terms
Interpretation, .2
DelegationI .3
Priority of interpretationIA
Business DayI .5
No contra proferentumI .6
Covenants to run with the Land17
Registration of Registrable Agreements1.8
Warranty and indemnity1.9
1.10 Extent of indemnity1.11 Headings1.12 Capacity of Places Victoria
2. Objectives
3. ConditionsprecedentandsubsequentSigning Project Documents3.1
3.2 CrownGrant3.3 Restricted usetitle
4. DevelopmentplanAmendments to Approved Development Plan4.1
Change in density4.2
Land Transfer5.
5.1 LandsaleContractConditions precedent to Transfer of Land5.2
Places Victoria's Obligations5.3
Satisfaction/waiver of conditions5.4
5.5 Entry to Land before satisfaction of conditions precedentPayments to Places Victoria5.6
5.7 ParcelB
Calculating the Performance Security5.8
Delivery of and using the Performance Security5.9
5.10 Boundaries of Land5.11 NOCaveat
5.12 Compliancewith requirements of Government Agencies5. ,3 Management of Parcels B and C
6. Developer'srisk6.1 Risk
Developers acknowledgment6.2Minter Ellison I Rat MEA ANS 30,6684923
15672795: 890440, _21ME_94532379_Soy20n3*)
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RCD Development Agreement - Civic Precinct Site I I page 3
6.3
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7.1
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Developers warranties
PlanningPlanning ApprovalPlanning controls
Demolition, Reinediation and Environmental obligationsDemolition obligationsRemedialion obligationsCondition of the LandPrice Offset
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Marketing
,0. Design10.1 Developersdesignobligations10.2 DesignDocumentation10.3 Design Review Panel's approval required for Design Documentation10.4 DesignReviewPanel10.5 Design acknowledgementsandwarranties,,. Infrastructure
11.1 Developer'sobligations11.2 Developer's responsibilities11.3 Maintenance
12. ThirdPartyServices12.1 Relocation
12.2 Compensation12.3 PrecinctEnergyPlant
13. Construction
13.1 Developersgeneralconstruction obligations13.2 Construction management13.3 Adjoining precincts and land13.4 AccesstoLand13.5 SiteCondition
13.6 Subcontracting the Developer'sWorks13.7 Defective work13.8 Restriction on Variations13.9 Developer'sVariations13.10 State Government Funding13.11 Quality assurance13.12 Safety and emergency13.13 Safety and preservation work to prevent deterioration13.14 Reinstatement of damage13.15 Industrial relations
13.16 Occupational Health & Safety (Principal Contractor) Act13.17 Green Star Design Rating13.18 Green StarAS Built Rating13.19 Contractfor Developer's Works
14. Environment Initiative ContributionMinter Ellison I Ref MEA ANS 30^684923
15672795: 890440, _21ME_94532379_S{\V2003x)
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RCD Development Agreement- Civic Precinctsile I I page 4
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14.1 Developer'SCOntribution14.2 Advisory committeefor spending on Environment!nitiatives
15. SitespecificControls
,6. Timing16.1 Progress and practical completion16.2 Extensionsoftime16.3 SunsetDates
17. ProjectCo-ordination Group17.1 ProjectCo-ordination Group17.2 ProjectCo-ordination Groupfunctions17.3 Project Co-ordination Group meetings17.4 Developersreporting and related obligations
18. Reporting obligationsofDeveloper18.1 Reporting Matters18.2 MaintenanceofReports18.3 Reporting obligation
19. Insuranceandindemnity19.1 Risk
19.2 Obligation to insure the Developers Works19.3 Obligation to insure for public liability19.4 Obligation to insure for workers' compensation19.5 Obligation to insure motorvehicle liabilities19.6 Obligation to insure against professional negligence19.7 Periods of insurance
19.8 Insurersand policies19.9 Crossliability19.10 Developer indemnifies against damage, etc
20. Practicalcompletion20.1 Noticeofpracticalcompletion20.2 Practical Completion ifPlaces Victoria does riot object20.3 Places Victoriamayobject20.4 IndependentAssessorDeed20.5 Occupation20.6 Documentation
21. DefaultEvent
21.1 OccurrenceofDefault Event21.2 CurePeriod21.3 Extension to Cure Period21.4 Remedies before Practical Completion21.5 Remedies after Practical Completion21.6 Rights and liabilities of the parties following termination by Places Victoria21.7 Financial Default21.8 Waiver
22. Intellectual Property
22.1 Developer'sWarranty22.2 Developer'sindemnityMinterEllison I Ref: MEA ANS 30.66B4923
15672795: 890440, _21ME_94532379_5 (w2003")
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RCD Development Agreement- Civic PrecindSite I I page 5
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22.3
22.4
22.5
23.
Grant of Licence
Further action required by the DeveloperPlaces Victoria's rights on termination
Development costs
Legal costs
Indemnity
Outdoor advertising by the Developer
Community objections
Developer's continuing obligationsOwners' corporation voting rightsEntering into a Section 173 Agreement
Restriction on assignmentIchange in controlNo assignmentNo sale or lease
Sub-contractingNegative pledge
GST
GST exclusive considerationGST Factor
Other GST related issuesTiming for payment ofGSTContra SuppliesTax invoice
Adjustment eventsFurther definitions relating to GSTDispute resolution
Dispute resolutionDispute NoticeNegotiationTime for resolution
Developer to continue Developer's Project
Approvals to be copied to Places Victoria
Obligations of Places VictoriaGeneral
Consents and Approvals by Places Victoria
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28.1
28.2
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29.1
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29.3
29.4
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30.1
30.2
30.3
30.4
30.5
30.6
30.7
30.8
30.9
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31.1
31.2
31.3
31.4
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33.1
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35.
35.1
35.2
35.3
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36.1
Notices
Method of giving NoticesTime of receipt of noticesAddress for Notices
Representations and warrantiesRepresentations and warranties
Minter Ellison I Ref: MEA ANS 30-6684923
15672795: 8904401_21ME_9,532379_s (\V2003, )
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RCD Development Agreement - Civic Precinct Site I I page 6
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36.2 Warranties unaffected36.3 Continuance of representations and warranties36.4 Relianceon representationsand warranties
37. Forcemajeure37.1 NoticeofForceMajeure Event37.2 Information
37.3 RightsafterForce Majeure Event37.4 Nodefault37.5 Cessation of Force Majeure Event
38. Confidentiality38.1 General obligations38.2 Exceptions38.3 Developer toprocurecompliance
39. Nori-merger
40. Lawandjurisdiction40.1 Governing Law40.2 Submissiontojurisdiction
4, . General
41.1 Continuing indemnities41.2 Waiver
41.3 Rightscumulative41.4 Entireagreement41.5 Amendment
41.6 Assignment41.7 Severability41.8 Further assurance
41.9 Counterparts41.10 Attorneys41.14 No partnership or agency41.12 Unfettered discretion4, .13 Surviving provisions
Schedule , - Milestone Events
Schedule 2 - Developer's Project
Schedule 3 - Key Consultants
Schedule 4 . Land
Schedule 5 - Developer's Project Documents
Schedule 6 - Encumbrances
Schedule 7 - Land Sale Contract
Schedule 8 - RCD Urban Master Plan
Schedule 9 -Insurance
Schedule 10 - Registrable General AgreementMintsr Ellison I Ref: MEA ANS 30-6684923
15672795: 8904401_21ME_9453z379_s or2003*)
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ROD Development Agreement- Civic Precinct Site I I page 7
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Schedule 11 - Registrable Environmental Agreement
Schedule 12 - Site specific controls
Schedule 13 - Early Occupation Licence
Schedule 14 - RCD Area I Plan
Schedule 15 -Independent Assessor Deed
Progress certification events
Schedule 16 - Management Agreement
Signing page
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,18
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Mintsr EMSon I Ref: MEA ANS 30-6684923
15672795: 890440, _21ME_9,532379_Spy2003^
RCD Development Agreement - Civic Precinct Site I I page 8
Information tableDate:
PartiesName
ABN
Shortform name
Notice details
Urban Renewal Authority Victoria61 868 774 623
Name
ABN
Short form name
Notice details
Places Victoria
710 Collins Street, Docklands, Victoria, Australia, 3008Facsimile: (03) 8317 3666Attention: ChiefExecutive Officer
BackgroundPlaces Victoria is the operating name of the Urban Renewal Authority Victoriawhich ist esuccessor in law to the VictorianUrban Development Authority. The Urban Renewal Aut ontyVictoriawas established by the Urban Renewal/I'd!hority, Incloria/ICt 2003 (Vic) forthe purposeoffacilitating development. .
Places Victoria is oris entitled to be the owner of the Land.
The Land falls within aDeclared Project Area,
D Places Victoriarepresentsthe Crown meriteringintothisDeed.
E The Developer andPlacesVictoriahaveenteredintoaHeadsofAgi. eement ate priregarding the development of the Land.
F Places Victoria has agreed to sellParcelA to the Developer on the terms and con itions con amein the Land Sale Contract and this Deed.
G Places VictoriaandtheDeveloperhave ag'eedtotheterms and conditions, whic wi regu aethe use and development of the Land.
Places Victoria and the Developer acknowledge that further tenns and specifications may nee tobe agreed between the parties to ensure the development of the Land in accor ance wi eObjectives and to integrate with the revitalisation of Central Dandenong.Places Victoria and the Developer have agreed to act, co-operate and negotiate in goo ait oagi. ee on such further terms and specifications and to ensure the development o e an inaccordance with the Objectives.
This Deed is an agreement under sub-section 49 of the Act.
City of Greater Dandenong41 205 538 060
Developer39 CIOW Street, Dandenong, Victoria, 3175Facsimile: 03 9239 5196Attention: ChiefExecutive Officer
A
B
C
H
Minter Ellison I Rat MEA ANS 30,6684923
15672795: 8904401_21ME, 94532379_S IWz003"}
RCD Development Agreement- Civic Precinct Site I I page 9
Agreed terms
I.
1.1
Defined terms & interpretationDefined terms
The following words have these meanings in this Deed, unless a contrary intention appears:
Act meansthe Urb"n Renewal Authority Pie!orig, 4ct2003 oric).
Active Construction meansthe stage of construction where:
(a) demolition worksfortheLandarecomp!ate;
(b) remedialionworksfortheLand are complete;and
(0) piling or gi. oundworks(as applicable) have substantially commenced.
Approval means any permit, licence, consent, grant, certificate, sealing or other approvalobtained orrequired to be obtained from a Government Agency or any other person in relation tothe Developer's Project and includes any consent, licence or approval required by Places Victoria,any Planning Approval and any requisition, condition orrequirementftom a Government Agencyor any other person.
Approved Design Documentation meanstheDesignDocumentation which has been approvedby Places Victoria forthe purposes of this Deed.
Approved Development Plan meansthedevelopmentplan approved by therelevant GovernmentAgency and submitted to Places Victoria by the Developer on orbefore the Conditions PrecedentDate.
ASIC Law means the flustralioiz Securities and/"yesime"ts CommissionAct2001(Cth).
Australian Standard means any Australian Standard issued from time to time by StandardsAustralia.
Authorised Officer means:
(a) for Places Victoria, a General Manager or other equivalent person authorised by PlacesVictoria; and
(b) for the Developer, its General Manager or other equivalent person authorised by theDeveloper,
or any other person nominated by or on behalfofa party as an authorised officer by notice inwriting to and with the approval of the other party (such approval notto be unreasonablywithheld).
Base Date meansthe date of this Deed.
Bank Guarantee means an irrevocable, unconditional guarantee given by an authorised deposit-taking institution as defined in the Banking Act 1959 (Cth), having aMinimum Credit Rating andenforceable in Australia on presentation and otherwise in a fomi acceptsbleto Places Victoria.
Building Act meanstheB"itdingAct1993 (Vic).
Business Day means any day other than a Saturday, Sunday or public holiday in Melbourne.
Minter Ellison I Ref: MEA ANS 30,6684923
t5672795: 890440, _21ME_94532379_30V2003x)
RCD Development Agreement -Civic PrecindSi!e I I page 10
Cap Amount means the amount agi. eed or determined in accordance with clauses 8.4(b)- 8.4(d)(inclusive).
Centralised Services means electricity, hot water and any otherservices detennined by PlacesVictoria and/orthe operatorofthe Precinct Energy Plant.
Claim means any claim, demand, proceeding orcause of action of any nature w atsoever(including fordamages), whether for money or otherwise, and regardless of the legal or otherbasis on which it may be put(including negligence), arising out of orin connection with theparticular subject matter,
Compensation means compensation for loss or damage suffered by aparty as a resu t o aDefault Event or other failure to perlomiby the other party, payable in accordance with this Dee .ConditionsFrecedentDatemeans31May2012,
Construction Management Guidelines meansthedocumentofthesamenamedate cto or2008 and published by Places Victoria, as amended from time to time.Construction Management Plan means aplanwhich;
addresses the manner in which the Developer proposes to construct and deve op t e(a)Developer's Project orthe proposed works permitted under a licence granted to t eDeveloper under clause 5.5 (whichever is applicable);
(b) containstheDilapidationReport;
containsthe Site Based Environmental Management Plan;(0)
(d) containstheTrafficManagementPlan;is consistent with the Construction Management Guidelines and Hoarding Gui e mes; an(6)
(f) complies with anteasonablerequirementsofPlacesVictoria.Contaminant means a solid, liquid, gas, odour, heat, sound, vibration, radiation orsu s anceany kind on, in or under land or water which makes ormay make land orwaterunsa e, unhamifulfbr habitation, use or occupation by any person or animal oris SUG t a any pland orwater does riotsatisfythe criteria orstandards published, or adopted by the VictorianEnvironment Protection Authority from time to time, and Contamination an ' ontani"a ehave corresponding meanings.
Contractor means the person referred to as such in Schedule 3.
Corporations Act means the Corporationsrtci2001(Cth),Crown Grant meansthe gi. ant of the relevant part of the Land in fee simple to aces ic ona inaccordance with this Deed, on conditionsthat are usually applied to Crown grants o ancoinparable to the relevant part of the Land.
Cure Period means the period of 30 daysftom and including the date of service o a e auNotice and any extended period granted under clause 21.3.
Cure Plan means aplan by the Developer to remedy a Default Event whic :(a) is proposed during the CurePeriod;and
details:
Minter Ellison I Ref: MEA ANS 30-6684923
15672795: 8904401_21ME_94532379_5(W2003x)
(i)
(ii)
ifandwhy an extension of the Cure Period is required;
the time required to cure the relevant Default Event; andRCD Development Agreement -Civic PledndSile I I page 11
(in) awork plan setting out each taskto be undertaken and the time for each task to becompleted.
Date for Practical Completion meansthe date forthat eventspecified in Schedule I.
Dealmeans to sell, transfer, lease, licence or otherwise dispose of or dealwith any interest in theLand orpart of the Land.
Declared Project Area means the area of Dandenong declared to be a declared project area bythe Governor in Councilon 26 September 2005 in accordance with section 34 of the Act.
Deed meansthis Deed and includes any appendices or schedules.
Default Event means any of the following events(and includes allNon-Material and MaterialDefaults):
(a) a failure to comply with any provision of this Deed, the Land Sale Contract or any otherProject Documents;
(b) afb. ilureto achieve aMilestoneDate;
(0) a representation orwarranty under clause 36 being orbecoming incorrect or misleading inany respect;
(d) the Developer abandoning orsubstantially ceasing to carry outthe Developer's Works formore than fourconsecutiveweeks;
afailure to proceed with the Developer's Works in accordance with the Works Program;a failure to construct in accordance with the Endorsed Development Plans;
a failureto carry outthe Developer's Works in accordance with the Approved DesignDocumentation;
(h) the occurrence of an Insolvency Event in relation to the Developer; or
a failure by the Developer to comply with a Registrable Agreement,(i)
DefaultNotice means a notice given by Places Victoriato the Developer under clause 21.1.
Deposit means an amountequalt0 10% of the Price.
Design Documentation meansthe detailed plans, drawings, specifications and other documentswhich clearly set out the finished design forthe Developer's Project, prepared by or on behalfofthe Developer and which include plans, drawings and Specifications for:
(a) architecturaldesign;
(b) urbandesigri;
(0) landscapedesigii;and
(d) other documentsrequiredfortheDeveloper's Works.
Design Review Panelmeans an independent panel, chaired by the State Government Architect,providing expert advice regarding design issues associated with Developers Project.Developable Area meansthe whole of the Land other than roads, parks, promenades, pathwaysand other public areas external to the building proposed to be developed in accordance with thisDeed.
Developer meansthe council of the City of Greater Dandenong acting in its statutory capacityunder the Local GoverningmrAct1989 and includes
(6)
(f)
(g)
Minter Ellison I Ref: MEA ANS 30,6684923
15672795: 8904401_21ME_945323?9_s(w2003*)
RCD Development Agreement- Civic Precinct Site I I page 12
the Developer's employees, contractors and agents
Developer's Infrastructure includes anservices, means of access and other infrastructurenecessary forthe Developer's Project.
Developer's Projectmeansthe planning, design, financing, development, construction andcommissioning of works and all off-site facilities as described in Schedule 2 andthe ApprovedDesign Documentation.
Developer's Works meansthe works to be carried out by the Developer to completetheDeveloper's Project in accordance with this Deed and includes demolition of improvements on theLand, removal of debris from the Land, temporary and remedial works, including reinediation ofcontamination affecting the Land, landscaping and construction and installation and connection ofthe Developer's Infrastructure.
Dilapidation Report means a report prepared by an independentregistered and suitably qualifiedengineer regarding the existing condition of the Land, the buildings on the Land and theinfrastructure adjoining the Land, as arthe date of this Deed andthe potential impact of theDeveloper's Works on the Land, the buildings on the Land and the infrastructure adjoining theLand, which report is consistent with the Construction Management Guidelines and which reportmay be used to detennine ifthe Developer has damaged the Land, the buildings on the Land orthe infrastructure adjoining the Land.
Dispute means any dispute or difference whatsoever arising out of orin connection with thisDeed or its subject matter.
Dispute Notice means anotice adequately identifying the mattersthe subject of a Dispute.
DPCD meansthe Department of Planning and Community Development, and any of itssuccessors or assigns.
Early Occupation means possession and use of the Land forthe Early Works priorto satisfactionor waiver of the conditions precedent in clause 5.2.
Early Occupation Licence means a non-exclusive licence under which the Developer is grantedEarly Occupation, in the fbnn attached as Schedule 13.
Early Works means:
(a) marketing of the Developers Projectto potential end-users in a manner approved byPlaces Victoria;
(b) preliminary siteinvestigationsandsurveys;
(0) siteestablishment;
(d) demolition of improvementsontheLand;
(6) removal of debrisfromtheLand;
(f) connection of the Developer'sProjecttothePrecinctEnergyPlant; and
(g) anyancillarypurpose approved moritingbyPlacesVictoria,
carried out pursuantto the rights and obligations under the Early Occupation Licence.
Endorsed Development Plans meansthe Approved Development Plan in relation to whichPlanning Approval has issued.
Environment Initiative Contribution meansthe amountreferred to in clause 14.1(a).
Minter Ellison I Ref: MEA ANS 30,6684923
15672795: 890440, _21ME_9453z3?9_S IW2003*)
ROD Development Agreement- Civic Precinct Site I I page 13
Environment Initiatives means environmental initiatives which are designed, created orimplemented by Places Victoriaforthe Declared Project Area.Environment Protection Act meansthe E"viro?linen!Projectio" AC! 1970 oric).
Environmental Assessment Report meansthereportto be prepared by the Developer whichdeals with the condition of the Land,
ESD Guidelines meansthedocumentofthesamename dated 19 May 2010 andpublishedbyPlaces Victoria, as amended from time to time.
ESD Principles meansthe document of the same name dated 25 August 2008 and published byPlaces Victoria, as amended from time to time.
Financial Default means afailure to pay any moneyto Places Victoria under this Deed ort eLand Sale Contractwithin five Business Days after the sum has become payable (whetherfbnnally demanded or not) and includes, withoutlimitation, a foilure to pay Compensation whendue.
Force Majeure Eventmeans any event orcircumstance orcombination of events orcircumstances:
comprising earthquake, act of God, natural disaster, fire, riots, civil commotion, maliciousdamage, sabotage, act of public enemy, war, revolution orradioactive contamination;which prevents the Developer from perfomiing its obligations under this Deed; andwherethe occurrence and the effects of the event or circumstance could not have beenprevented, overcome orremedied by the exercise by the Developer of a standard of careand diligence consistent with that of a prudent and competentperson under thecircumstances, including the expenditure of reasonable sums of money and the applicationof technology knowito prudent and competentpersons.
Good Design and Construction Practices means practices followed when work is un erta en:(a) in aproper, soundandworkmanlikemanner;
(b) with due care and skill in applying nationally accepted urban design and building design,engineering, construction and management procedures;
(0) with due expedition and without unnecessary or unreasonable delays having regard to anyForce Majeure Event;
in amanner which allows the Developer's Worksto be efficiently pertonned;
in accordance with all applicable Law and Australian Standards(orwhere an AustralianStandard does not exist the equivalent Us Standard); and
(1) using new materials of merchantsble quality which are ofhigli quality and fit fortheirintended purpose.
Government Agency means any government or any public, statutory, governmenta ,semi-governmental, local governmental orjudicialbody, entity or authority and includes a Minister ofthe Crown (in any riglit), Places Victoria, the Municipal Body and anyperson, body, entity orauthority exercising a power pursuantto an Act of Parliament.
Green StarAS BuiltRating means an environmental green star as builtrating under the reenBuilding Council Australia rating system of measurement(including any pilotrating system),which rating system (or pilotrating system, as applicable)is the version referred to in clause13.18.
(a)
(b)
(c)
(d)
(e)
Mintsr Ellison I Ref: MEA ANS 30-6684923
15672795: 890440, _21ME_9,332379_S IW2003x}
RCD Development Agreement -Civic Precinctsite I I page 14
Green Star Design Rating means an environmental green star design rating undert e reenBuilding CouncilAustralia rating system of measurement(including any pilotrating system),which rating system (or pilotrating system, as applicable) is the version referred to in clause13.17.
GST Act meansthe ANew Tax System (Goods and Services Tax) Act1999 (Cth).
GST Exclusive Consideration hasthe meaning given to it in clause 30.1.
CST Factor has the meaning given to it in clause 30.2,
GST Inclusive Consideration hasthe meaning given to it in clause 30.2.
CST Rate meansthe percentage of the value of the taxable supply that is the amount ofGST.CST Law has the meaning given to it in the GST Act.
Hoarding Guidelines meansthe document of the samename dated29 June 2010 andpu is eby Places Victoria, as amended from time to time.
Independent Assessormeans the person selected by Places Victoria in accordance with clause20.4 to act asthe Independent Assessor under the IndependentAssessor Deed. It includes anyperson replacing that person in accordance with the provisions of the Independent ssessor 66 .Independent AssessorDeed means a deed substantially in the fomiof Schedule 15.Independent Quantity Surveyor means a quantity surveyor agreed or appointed in accor anCGwith clause 8.4.
Insolvency Event means any of these events:
(a) an application is made to acourt for an order or an order is made that the Developer bewound up;
(b) an application is madeto a court for an order appointing a liquidator or provisionalliquidator in respect of the Developer, or one of them is appointed, whether or not un eran order;
exceptto reconstruct or amalgamate while solvent on terms approved by Places ic ona,the Developer enters into, orresolvesto enter into, a scheme of arrangement, dee ocompany arrangement or composition with, or an assignment forthe bene It o , a or anyclass of its creditors, orit proposes areorganisation, moratorium or other administrationinvolving any of them;
(d) the Developer resolves to wind itselfup, or otherwise dissolve itself; or gives notice of anintention to do so (exceptto reconstruct or amalgamate while solvent on tenns approvedby Places Victoria) or is otherwise wound up or dissolved;
the Developer is or states that it is insolvent;
as areSUIt of the operation of section 459F(I) of the Corporations Act, the Developer istaken to have failed to comply with a statutory demand;
the Developer is or makes a statement from which it may be reasonably deduced by PlacesVictoria that the body corporate is the subject of an event described in section 459C(2)(b)or section 585 of the Corporations Act;
the Developer takes any step to obtain protection oris granted protection from itscreditors, under any applicable legislation;
(0)
(e)
(1)
(g)
(h)
Minter Ellison I Ref: MEA ANS 30-6684923
t5672795: 890440, _21ME_94,32379.5 N2O03x)
RCD Development Agreement -Civic Precinct Site I I page 15
(i) the Developer becomes an insolventunder administration as defined in section 9 of theCorporations Act or action is taken which could result in that event;
q) aresolution is passed to appoint an administrator or an administrator is appointed to theDeveloper;
(k) a receiver or a receiver and manager is appointed to the Developer;
(1) a mortgagee takes possession of any one of the assets or undertakings of the Developer; or
(in) anything analogous orhaving a substantially similareffiectto any of the events specifiedabove happens under the law of any applicable jurisdiction,
but shall notinclude the amalgamation, reconstruction orrestructure of the Developer PUTSuanttothe Local Government Act1989 or any other Law provided that such amalgamation,reconstruction orrestructure of the Developer does notrenderthis Deed voidable at the option ofa party other than Places Victoria.
InternectualProperty means all current and future intellectual property rights (including withoutlimitation all copyright, trademark, design, patent and confidentiality riglits) created for or onbehalfofthe Developer andthe Developer's right, title and interest in and to all:
(a) the Endorsed Development Plans;
(b) the DesignDocumentation andtheApprovedDesigiiDocumentation;
(0) other materials or information prepared by or on behalfofthe Developer as partofor inconnection with the Developer's Project or the Project Documents; and
(d) any enhancements or modifications of the itemsreferred to in paragraphs (a) and (b)above.
Interest Rate meansthe greater of 4.5% per annum and:
(a) the aggregate of2% petalmum plusthe rate (expressed as apercentage perannum) whichis the bid rate for bank accepted bills of eXchange having atenor of 60 days, shown atapproximately 10.30am on the BBSY reference rate page of the Reuters Monitor Systemin Melbourne on the day from which the Interest Rate is required to be calculated (or, ifthat day is not a Business Day, the Business Day immediately preceding that day); or
(b) ifon the relevant day from which the Interest Rate is required to be calculated orthepreceding Business Day (asthe case may require) either the BBSY reference rate page orthe rate for bank accepted bills of eXchange having atenor of 60 days is not published by10.30am orthereabouts on the Reuters Monitor System in Melbourne then the aggregateof2% petannum plus:
(i) any substantially similar bid rate published by the Reuters Monitor System on thatday; or
(ii) ifno substantially similar bid rate is published by the Reuters Monitor System onthat day, the rate per centum per annum which is the average of the buying rate forbank accepted bills of eXchange having a face value of $500,000.00 quoted bythree banksin Melbourne on the relevant day or preceding Business Day, asapplicable.
Key Consultant means each of the consultants engaged by the Developer forthe DevelopersProject as listed in Schedule 3.
Land means allthe land comprised in ParcelA, ParcelB and ParcelC, being all of the landidentified on the plan set out in Schedule 4.
Minter Ellison I Ref: MEA ANS 30.6684923
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RCD Development Agreement- Civic Prednct Site I I page 16
Land Sale Contract means any contract of sale between Places Victoria and the Developer orParcelA, substantially in the fomiset out in Schedule 7, as amended by Places Victoria (actingreasonably) from time to time to reflect comentindustry practice and as otherwise agreed byPlaces Victoria and the Developer.
Law means:
(a) principles of laworequityestablishedbydecisionsofcourts;
(b) statutes, regulations, by-laws, ordinances, orders, awards, proclamations and local laws othe Commonwealth, State, anylocalgovemmentoraGovemmentAgency;
the Constitution of the Commonwealth;
binding requirements and mandatory approvals (including conditions) of theCommonwealth, the State oraGovemmentAgencywhichhavethefbrce of law; and
guidelines of the Commonwealth, the State oraGovemmentAgencywhichhavet e orceof law.
MaintenanceMa"agementPlan means aplanpreparedbytheDeve!operan approve y arelevant Government Agencies forthe maintenance of the Developerslnfrastructure.
Management Agreement means the ageementsubstantially in the 16nn containe in Trot.Reference source not found. , as amended by the agreement of Places Victoria an t e eve opsr.
Material Default means:
a failure to achieve a Milestone Date;
the Developer abandoning or substantially ceasing to carry outthe Developers or s ormore than fourconsecutive weeks;
a failure to carry outthe Developer's Project in accordance with the Approve esigiiDocumentation;
the occurrence of an Insolvency Eventin relation to the Developer; or
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e) service of anotice by Places Victoria on the Developer to the effectthattheNon-MateriaDefaultEvents specified in that notice (of which the Developer has previously received aDefaultNotice) when taken together, in the opinion of Places Victoria, constitute anintentional and persistent failure by the Developer to observe the spirit and ternis o t isDeed.
Milestone Date means any date applying to a Milestone Event as extended (ifat all) under thisDeed including, withoutlimitationthe Transfer Date, date for commencement of construction anthe Date for Practical Completion,
Milestone Event means each event or activity detailed in Schedule I being those events whicare critical forthe timely planning, design, construction and commissioning of the eve opersWorks.
Minimum Credit Rating means a creditrating of at least A- orbetter(from S&P) or A3 or better(from Moody's).
Municipal Body meansthe City of Greater Dandenong and its successors and assigns w o areresponsible from time to time forthe municipal governance of the Land.Non-Material Deft"It means a Default Eventthatis not aMaterialDefault.
Moody's means Moody's Investor Services Inc, and its subsidiaries or theirsuccessors.RCD Development Agreement- Civic Prednd Site I I page 17Minter Ellison I Ref: MEA ANS 30,6684923
15672795: 890440, _21ME_94532379_S my2003*)
Notice means anatice, consent, approval, application or other communication un er is 66 .
Objectives meansthe objectives set out in clause 2(c).
Occupational Health & Safety (,'rincipalCo"tractor) Act meansthe Occupational Health andSatiety Act 2004 oric) andthe Occupational Health and Sal^ty Regulations 2007 Onc).Parcel A meansthe land marked 'A' on the plan in Schedule 4 as varied in accordance with thisDeed.
ParcelB meansthe land marked 'B' on the plan in Schedule 4 as varied in accordance with thisDeed or otherwise by agreement between the parties.
ParcelC means the land marked 'C' on the plan in Schedule 4 as varied in accordance with thisDeed.
Parking Rate Guidelines meansthe document entitled 'RCD Carparking Guidelines(2008 -2010)' dated 22 July 2008 and published by Places Victoria, as amended from time to time.Performance Security means Perfomiance Security I and Pertonnance Security 2.
Performance Security I means cash security or a Bank Guarantee in respect of the DevelopersProject for an amount calculated in accordance with clause 5.8(a).Performance Security 2 means cash security or a Bank Guarantee in respect of the DevelopersProject for an amount calculated in accordance with cla"se 5.8(b).Permitted Security Interest means:
a security interest of which full details have been given to Places Victoria in writing at(a)leasttwo Business Days before the date of this Deed and which is consented to by P acesVictoria; or
(b) a security interest created after the date of this Deedwhere:Places Victoria has consented to that security interest and to a maximum amount(i)which it may secure at any time; and
the amountsecured by that security interest(other than costs, fees anduricapitalised interest or monies in the narure of interestsuch as discounts on bil sof eXchange), does notincrease beyond the amountto which Places Victoria hasconsented;
a security interest(ifany) created under a Project Document; or
a lien which arises solely by operation of law in the ordinary course of the Developersbusiness, where the amountsecured is not overdue for payment or wherethe amountsecured is not being contested on reasonable grounds and in good faith,
Planning and Development Controls meansthe Planning Scheme and associated ocumentsinrelation to the controland regulation of land use and development.
Planning and Environment Act meansthePlo"rimgu"dEi, vironme, ,trtc, 7987(Vic).Planning Application Review Panelmeans the body established, which consists ofrepresentatives from Places Victoria, the Municipal Body and DPCD, which body will review anyapplications for Planning Approval.
I iredunderthePlanningandDevelopmentControlsPlanning Approval means any approval required under the Planning and Development on ro sin connection with the Developer's Project, including in relation to the Approved Deve opmentPlan.
(ii)
(c)
(d)
Minter Enison I Rat MEA ANS 30-66a4923
15672795; 890440, _21ME_945323?9_s (w2003^)
RCD Development Agreement -Civic Precinct Site I I page 18
Planning Scheme meansthe Greater DandenongPlanning SchememadeunderthePlarmingaridEnvironment Act as applicable to the Developer's Project and any Planning Scheme amendmentapproved and gazetted from time to time under the Planning and Environment Act,
Plan of Subdivision means a plan of subdivision under the Subdivisio"AC! 1988 (Vic),
Practical Completion occurs when the Developers Works are completed in accordance with theApproved Design Documentation and after:
(a) satisfactory evidence of compliance with therequirements of anyGovemmentAgency issubmitted to Places Victoria;
(b) the Developer hasobtaineda Statement of Environmental Audit;
(0) satisfactory evidence that the Developer's Project achieves at least a 5 star Green StarDesign Rating is submitted to Places Victoria;
(d) all plant and equipment forming part of the Developer's Works of any public area orpublic open space is tested and operational; and
(e) allomissionanddefectshavebeenrectified other than items:
(i) wherethe immediate making goodbythe Developer is notpracticable;
(ii) which do not preventthe Developer's Works from being used fortheir intendedpurpose;
(iii) which do not affectthe safe and convenient use of the Developer's Works; and
(iv) which do not cause any legal impediment to the use or occupation of theDeveloper's Works.
Precinct Energy Plant means acentralised energy facility located within RCD Area I containingthe infrastructure required to provide Centralised Services to various buildings and other locationswithin Central Dandenong including the Developer's Project,
Project Documents meansthe documents listed in Schedule 5, and ifthe context allows, any oneormore of these.
Pre-lodgement Consultation means consultation by the Developer with the Planning ApplicationReview Panelin good faith regarding the form and content of the Approved Development Plan.
Project Co-ordination Group means a group comprising:
(a) arepresentstiveofPlacesVictoria;
(b) aseniormanagementrepresentativeoftheDeveloper; and
(0) any other person reasonably required by the Developer or Places Victoria,established under clause 17.1.
Price meansthe price the Developer must pay under the Land Sale Contract for ParcelA as setout in Schedule 7 and as varied by this Deed and/orthe Land Sale Contract.
Principal Contractormeans 'principal contractor' within the meaning of the Occupational Healthand Safety (Principal Contractor) Act.
Quantity Surveyor means a quantity surveyor appointed from time to time by Places Victoria forthe purposes of this Deed.
RCD Area I meansthe area designated by the Victorian State Government as RevitalisingCentral Dandenong Area I asshown on the RCD Area I Plan.
RCD Development Agreement- Civic Precinct Site I I page 19Minter Ellison I Ref: MEA ANS 30,6684923
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RCD Area I Plan meansthe plan attached to this Deed as Schedule 14.
RCD 11rban Master Plan meansthe document attached to this Deed as Schedule 8.
Registrable Agreement means an agreement under section 49 of the Act and includes(withoutlimitation) aRegistrable Environmental Agreement and a Registrable General Agi. Gement.Registrable Environmental Agreement means an ag. eementundersection 49 of the ctin asubstantially similar fom to the agreement in Schedule 11.
Registrable General Agreement means an agreement under section 49 of the Act in asubstantially similar form to the agi. eement in Schedule 10.
Reporting Matters meansthe reporting matters listed in clause 18.1.
Reports meansthe reports listed in clause 18.2.
Revitalisi, ,g Central Dande"orig Project means the project declared on 26 September 20under section 34(I) of the Act.
Revitalising Central Dandenomg Marks means any descriptors, names, logos, service mar s antrade marks (whether registered or unregistered) owned by Places Victoria, any RevitalisingCentral Dandenongbrands and any project partiierlogos.
S&F means Standard & Poor's(Australia) Ply Ltd.
Section 173 Agreement means an agreement under section 173 of the Planning an nvironmenAct.
Security meansthe Perlorrnance Security and any other security forthe performance o theDeveloper's obligations under the Project Documents.
Services meansroads, footpaths, bridges, public open space, electricity, gas or water mains,telephone cabling, signalling cables, drainage, sewerage, communications in rustruc re anequipment required for or in connection with the Developers Projectincluding any services orsystems which require extension orvariation as a consequence of the Developers Projectw e erinside or outside the boundary of the Land.
SiteBased Environmental Management Plan means asitebasedenvironmenta managemenplan which:
(a) complies with the Planning andDevelopmentControls;
(b) complies with the Environment Protection Act;is consistent with the Construction Management Guidelines and Hoarding Guidelines;(0)
(d) provides a design and layout of the Developer's Worksthatis consistentwith the ESDGuidelines; and
addresses, to the satisfaction of Places Victoria, any concern of Places Victoria arisingfrom the Endorsed Development Plans and the Design Documentation,
Site Conditions means any condition affecting orpotentially affecting the Land including,without limitation:
ground water, ground water hydrology and the ef^cts of any de-watering;physical conditions on above or below the surface of land;the environmental condition of land, including the presence of any Contaminant(s) onland;
(6)
(a)
(b)
(c)
Minter EUison I Rel: MEA ANS 30-6684923
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RCD Development Agreement -Civic Precinct Site 11 page 20
(d) topogi. aphy of land surface and sub-surface conditions and geology including rock or othermaterials encountered on land;
(e) climatic andweatherconditions, rain surface water run-offand drainage, waterseepage,wind, wind-blown dust and sand in seasons;
(f) allexisting systems and Services above or below the surface of the land and the locationof allfacilities with which such systems and Services are connected; and
(g) all other physical conditions and characteristics of land on, above or below the surface(including improvements) which may affectthe pertonnance by the Developer of itsobligations under this Deed,
whether relating to the Land or land outside the Land and also the availability and condition ofroads and all utility Services servicing, orrequired to Service, the Land and the Developer'sProject.
Site Plan means a plan to be provided at appropriate intervals of time and otherwise on thereasonable request of Places Victoria:
(a) detailing the physical and geographical evolution of the Developer's Projectftom thecommencement of the Developer's Works untilPractica! Completion; and
(b) confirming to Places Victoriathatthe physical and geographical growth of the Developer'sWorks will be continuous and contiguous from not more than two single points within theLand.
Specifications includes colours, finishes, materials, texture, quality, style and form.
State means the State of Victoria.
Statement of Environmental Audit hasthe same meaning as in the Environment Protection Act.
Statutory Charges means allcharges in relation to the Land levied by any Government Agencyincluding without limitation, rates, water rates, !and tax, development levies, filing costs andsubdivision levies.
Sunset Date means each date by which a Sunset Eventmust have occurred under this Deed. ASunset Date cannot be extended withoutftie priorwritten consent of Places Victoria actingreasonably.
Sunsetl!:vent means any one or more of:
(a) Active Construction having commenced on ParcelAby 311anuary2015; and
(b) Practical Completion occurring by 310ecember2016.
Third Party meansthe relevant owner, user and/orperson responsible for a Third Party Service.
Third Party Services means electricity, gas or water mains, telephone cabling, signalling cables,drainage, sewerage and other communicationsinfrastructare or equipment installed, operated orowned by Places Victoria, other Government Agencies or athird party.
Total Development Cost means the Price and the total construction and desigi costs estimatedby the Quantity Surveyor to bring the Developer's Project(including allconstruction contingencyand escalation costs)to Practical Completion regardless of the manner in whichthose costs willbe (or are proposed to be) financed.
Traffic Management Plan meansthe plan which:
Mintsr Ellison I Ref: MEA ANS 30-6684923
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RCD Development Agreement- Civic Precinct Site I I page 21
(a) addresses the manner in which the Developer and the Developer's invitees will obtainingr. ess to and egress from the Land;
(b) addresses the manner in which the Developer will ensure that water based, pedestrian,bicycle and motorvehicle traffic around the Land is safe and orderly; and
(0) is consistentwiththe Construction Management Guidelines and Hoarding Guidelines.
Transfer Date means 29 June 2012.
Valuer-General means the Valuer-General of Victoria.
Variation means a variation, addition or deletion to the Developer's Works, the DevelopersProject or a Project Document made under clause 13.9.
Places Victoria means the Urban Renewal Authority Victoria (operating as Places Victoria) andany of its successors or assigns.
Works Program meansthe statement in writing showing the major activities in perfonningtheDeveloper's Works in order to achieve a Milestone Date.
InterpretationIn this Deed, unless a contrary intention appears:
(a) a reference to this Deed or any other document referred to in this Deed or anotherinstrument includes any variation orreplacement of any of them;
(b) a ref^Tence to a statute, ordinance, code or other Law includes regulations and otherinstruments under it and consolidations, amendments, re-enaciments orreplacements ofany of them;
(c) the singular includes the plural andviceversa;
(d) person includes afinn, a body corporate, an runncorporated association or aresponsibleauthority, as constituted from time to time;
(e) a reference to a person includes areforence to the person's executors, administrators,successors, substitutes, assigns, employees, servants, agents, consultants, contractors,advisers, financiers, subcontractors, licensees and invitees;
(f) an agreement, representation or warranty on the part of orin favouroftwo or morepersons binds oris forthe benefit of them jointly and severally;
(g) words importing anygenderinclude another genders, as applicable;
(h) a reference to any thing (including, withoutlimitation, any amount) is a reference to thewhole or any part of it and a reference to a group of personsis areforenceto any one ormore of them;
(i) a reference to a clause, schedule or appendix is to a clause, schedule or appendix in or tothis Deed;
(j) a reference to a day must be interpreted asthe period of time commencing at midnight andending 24 hours later;
(k) a reference to the payment of money within a specified time is areforence to the fullclearance of any personal cheque into the account of the payee within that time; and
(1) words or phrases derived from a defined word have a corresponding meaning to thedefined word.
Minter Ellison I Ref: MEA ANS 30-6684923
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RCD Development Agreement- Civic Precinctsite I I page 22
Delegation(a) Places Victoria may delegate any power, mmction or responsibility which Places Victoria
has under this Deed or Places Victoria may perlomior exercise such power, function orresponsibility,
(b) Anysuchdelegationmaybe:
(i) revoked, changed ordelegated;and
(ii) limited or may be subjectto such conditions as Places Victoria detennines fromtime to time.
(c) Where Places Victoria delegates any powers, functions orresponsibilities under this Deedto an individual, Places Victoria must give notice of such delegation to the Developerincluding the identity and address of any person to whom such powers, functions orresponsibilities are delegated and any changes in the identity and address of such person.The notification by Places Victoria may contain details of the delegation of any powers,functions or responsibility. Where such notice has been given by Places Victoria, theDeveloper is entitled to rely upon such notice unless and until given notice of revocationof that delegation.
(d) The Developer is entitled to request details of the delegation of any power, function orresponsibility under this Deed where a person purports to be acting under such adelegation. Once the Developer obtains such details, it is entitled to rely on them unlessand untilgiven notice of the revocation of that delegation,
(6) Any person to whom powers, functions orresponsibilities are delegated by Places Victoriahas, subject to the extent of that delegation and compliance with the tenns of suchdelegation, the full power and authority to act for and on behalfofand to bind PlacesVictoria under this Deed.
Priority of interpretationIfthere is any inconsistency between the provisions of any two or more Project Documents,except in the case of manifest error, the ProjectDocuments will be given priority in interpretationin the following order to the extentofany inconsistency:
(a) thisDeed;
(b) the Approved DesignDocumentation;
(c) the Endorsed Development Plans;
(d) the Approved Development Plan;and
(6) other ProjectDocuments.
Business DayIfthe day on which any act, matter orthing is to be done under this Deed is not a Business Day,that act, matter orthing must be done no later than the next Business Day.
No contra proferentumIn the interpretation of this Deed, no rule of construction will apply to disadvantage a partybecause that party proposed a provision of this Deed or the Deed itself.
Covenants to run with the Land
(a) This Deed is an agreement to which section 49 of the Act applies.
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RCD Development Agreemenl-Civic Precinctsite I I page 23
(b) Places Victoria and the Developer agree and declare that the Developer's obligations underthis Deed are intended to take effect as covenants which must be annexed to and run atlaw and equity with the Land and bind the Developer, its successors, transferees andpennitted assigns and the registered proprietor or proprietors forthe time being of theLand and every part of the Land.
Registration of Registrable Agreements(a) Places Victoriamay makean application under section 181 of the Planning and
Environment Actto the Registrar of Titles forthe entry of aRegistrable Agreement on thecertificate of title to the Land and ifthe Land is subjectto a Plan of Subdivision, on everycertificate of title issued on registration of the Plan of Subdivision. The Developer mustuse its best endeavours to assist Places Victoria or comply with any requests from PlacesVictoria in respect of this clause 1.8.
(b) Places Victoria may, upon the written application of the Developer, execute, at theDeveloper's expense, andocuments necessary to remove any memorandum of theRegistrable General Agreement exceptinsofar as that Agi. Gement may include allor partof aRegistrable Environmental Agreement, as an encumbrance upon and affecting therelevant certificate of title(s) once the Registrable General Agreement is ended, which, inthe case of a Registrable General Agreement notincluding all or part of a RegistrableEnvironmental Agreement, will be on the date on which the Developer's Works asdescribed in the relevant certificate of title have reached Practical Completion.
Warranty and indemnityWhere anywarranty is given by the Developer under this Deed, the Developer indemnifies PlacesVictoria in respect of any loss, damage or expense which arises out of oris in any way connectedwith a breach of that warranty.
10 ExtentofindemnityAny indemnity given by the Developer under this Deed extends to any loss, liability, damage orexpense, including (without limitation):
(a) lossofprofit;
(b) liability to thirdparties;
(c) legal costs (on a solicitor own clientbasis) in respect of enforcing the indemnity ordefending any claim brouglit by any party, including athird party, in respect of a matterwhich is the subjectofthe indemnity; and
(d) loss, liability, damage or expense arising from orin any way connected with an act,default or omission or other eventin respect of which the indemnity is given.
11 HeadingsHeadings are included for convenience only and do not affectthe construction or interpretation ofthis Deed.
12 Capacity of Places VictoriaPlaces Victoria enters into this Deed and the other Project Documents which are agreements in itscapacity as a representative of the Crowii and in no other capacity (and specifically, withoutlimitation, not as a referral authority forthe Land orthe Planning Scheme).
Minter Ellison I Ref: MEA ANS 30.6684923
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RCD Development Agreement- Civic Precinct Site I I page 24
2. ObjectivesPlaces Victoria andthe Developer acknowledge and agree that the:
(a) functions of Places Victoria include those set outin section 7 of the Act;
(b) general purpose of the Actis to facilitate the development and to establish Places Victoriaforthe purposes of encouraging that development;
(0) Objectives forthe development of the Landinclude:
(i) development accessibletoadiverserange of localsand visitors;
(ii) development which is creative, innovative andecologically sustainable; and
(in) development which contributes to the community and economic vitality of CentralDandenong;
Places Victoria and the Developer must act, co-operate and negotiate in good faith toagree on such further tenns and specifications requested by Places Victoria forthedevelopment of the Land in accordance with the Objectives, including, withoutlimitation:
(i) attending meetingsrequestedbyPlacesVictoria; and
(ii) entering into any further agreements negotiated in good faith; and
(e) The Developer must develop by planning, designng, constructing and commissioning theDeveloper's Project in accordance with the terms and conditions of this Deed.
3.
3.1
Conditions precedentand. subsequent
Signing Project Documents(a) The Developer must on orbefore the date of this Deed;
(i) satisfy Places VictoriathattheDeveloperhassufficientfinancialresources andordebt and equity commitments to meetthe Developer's obligations under this Deed;and
(ii) paytheDeposit.
The Developer acknowledges that Places Victoria has executed this Deed on the basisthatit has obtained approval of the Price by the Land Monitoring Division of the DPCD.
Crown Grant
(a) Places Victoria will use reasonable endeavoursto procurethe issue of the Crown Grant forParcelA by the Conditions Precedent Date. Oncethe Crown Grant for ParcelA hasissued, Places Victoria must provide a copy of it to the Developer.
If:
(i) the Crown Grant for ParcelA is notissuedto Places Victoria by the ConditionsPrecedent Date; or
the Crown Grant for ParcelA is issued subject to conditionsthat:
(A) prohibitthe Developer from carrying outits obligations under this Deed;
(in
Minter Ellison I Ref: MEA ANS 30-6684923
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or
RCD DevelopmenlAgreement- Civic Precinct Site I I page 25
(B) are not otherwise usually applied to Crown grants of land which iscoinparableto ParcelA and which materialIy and adversely affectthevalue of ParcelA
(Adverse Conditions); or
(iii) the boundaries of ParcelA as contained in the Crown Grant(including any heightand depth restrictions) are materialIy and adversely inconsistentftom theboundaries and dimensions of ParcelA asshown on the plan contained inSchedule 4 (Adverse Boundaries),
the Developer may, subject to clause 3.2(c), or Places Victoria may terminate this Deedby notice in writing to the other.
Before the Developer tenninatesthis Deed in accordance with clauses. 2(b), theDeveloper must give notice to Places Victoria that it intendsto terminate this Deed un ess(as appropriate):
the Crown Grant for ParcelA is issued to Places Victoria;(i)
the Adverse Conditions are removed; or(ii)
(iii) the AdverseBoundariesarerectified,
within 14 days of Places Victoria's receipt of the Developer s notice.
The Developer must exercise its riglitsto give notice in accordance with clause 3.2(c)within 3 Business Days after the earlier of:
(i) the ConditionsPrecedentDate;andthe date on which Places Victoria provides it with a copy of the Crown Grant or(ii)Parcel A.
Ifit does not give notice in accordance with clause 3.2(c)withinthattime, the Developerwill have waived its rightto do so andto terrninate this Deed in accordance wi c ause3.2(by.
Ifthis Deed is terminated under clause 3.2(b):
on the date oftennination of this Deed, allProject Documents will be deemed to(i)have been tenninated;
Places Victoria will within 20 Business Days after termination of this Deed returnto the Developer:
(A) the Deposit;and
(B) any Pertonnance Security provided by the Developer to Places Victoria;subjectto clause 3.2(e)(v), the Developer acknowledges and agrees that ithas noClaim againstPlaces Victoria for any matter arising from or in connection withthis Deed orthe termination of this Deed, including compensation or payment forany work carried outto oron the Land;
Places Victoria acknowledges and agrees that it has no Claim againsttheDeveloper for any matter arising from or in connection with this Deed ort etennination of this Deed ,including compensation or payment for anyworcarried out to or on the Land;
(v) Places VictoriawillpaytotheDeveloperon demand:RCD Development Agreement - Civic Precinct Site I I page 26Minter Ellison I Ref; MEA ANS 30-6684923
15672795: 8904401_21ME_9453z379_s (W2003^)
(A) the reasonable legal costs and consultants costs incurred by the Developerin negotiating and entering into this Deed; and
(B) the costs of the Developer complying with its obligations under this Deedto the date oftennination; and
(f) subject to clause 3.2(e)(exv), the Developer may not make any requisition or objection orclaim compensation for any matter arising under this clause 3.2 orthe Crown Grant.
(g) After the development proposal for ParcelB has been detennined by Places Victoria andimplementation of the development proposal for Parcel B has commenced, Places Victoriawill use reasonable endeavoursto procure the issue of a Crown Grant for Parcel B andParcelC.
Withoutlimiting any other provision of this Deed, the Developer must provide to PlacesVictoria on or before the Conditions Precedent Date:
(i) the DesignDocumentation;
(ii) aplanoftheproposedfbotprintofParcelA;
(iii) the Approved Development Plan; and
(iv) PlanningApproval.
Restricted use title
(a) Places Victoria acknowledges that the Developer would like to pursue the possibility ofthe Crown Grant for ParcelA being issued with a restriction which limitsthe use of ParcelAto municipal purposes.
(b) Subjectto clause 33(c), Places Victoriawillnot objectto the Developer seeking therestriction on the Crown Grant for ParcelA referred to in clause 3.3(a).
(c) Nothing in this clause 3.3, prevents Places Victoria from seeking to procure the issue ofthe Crown Grant for ParcelA by the Conditions Precedent Date in accordance with itsobligations under clause 3.2.
4.
4. ,
Development plan
Amendments to Approved Development Plan(a) The Developer must not amend an Approved Development Plan without Places Victoria's
prior written approval.
(b) Places Victoria's approval of any application by the Developer to amend an ApprovedDevelopment Plan may be given subjectto conditions, including that the Developer payadditional Price.
Change in density(a) Nothing in this Deed requires Places Victoriato consider or approve:
(i) an application by the Developer to amend an Approved Development Plan; or
(ii) an application by the Developer to amend a Project Document,
ifsuch amendment increases the overall density of the Developer's Project above theoveralldensity or gi'OSs floor area of the Developer's Projectset out in the ApprovedDevelopment Plan.
Minter Ellison I Ref: MEA ANS 30.66B4923
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RCD Development Agreement - Civic Prednc!Site I I page 27
5.
5.1
Land Transfer
Land Sale Contract
(a) Places Victoria and the Developer must enter into the Land Sale Contractfbrthe purchaseby the Developer of ParcelA forthe Price on or before the Transfer Date.
(b) The Developer acknowledges that the sale of Parcel A under the Land Sale Contract willbe subject to the following encumbrances:
(i) easementsreasonablyrequiredforthe provisioninfrastructureorServicesservicing Parcel A whether or not it directly benefitsthe Developer's Project;
(ii) allencumbrancesspecified mschedule6; and
(in) any encumbrance that the Developer otherwise requests or approves.
Conditions precedent to Transfer of LandPlaces Victoriawillnot pennitthe Developer totale possession of any part of the Land under thisDeed orthe Land Sale Contract unless Places Victoria is satisfied, acting reasonably:
(a) that the Crown Granthasissued in respectofParce! A;
(b) Places Victoriaprocuringvacantpossessionofthe Land;
(0) that the Developer has complied with its obligations under clause 3.1(a);
(d) that the Developer has delivered the Pertonnance Security to Places Victoriawhichcomplies with the requirements of clause 5.8;
(e) that the Developer has, sufficient funding to financethe Developer's Works any otherfinancial obligations under this Deed, and that the Developer will be able to continue tofinance the remainder of the Developer's Project;
(f) that the Developer has obtained allrelevantApprovals, including, withoutlimitation,Planning Approval and has complied with and satisfied all conditions and requirementsissued in connection with the Planning Approval in the manner and by the time requiredas part of that Planning Approval;
(g) that the Developer haslodged annocessary documentation with the Green BuildingCouncil of Australia to register the Developer's Projectto achieve a five star Green StarDesign Rating;
that the Developer has provided areport prepared by a suitably qualified and experiencedenvironmental sustainability consultant confinning that, in the opinion of the consultant,the Developer's Project has been:
(i) designed maccordancewith the BSD Guidelines andtheESD Principles; and
(ii) designed in a manner which will enable the Developer to achieve a five star GreenStar Design Rating forthe Developer's Project;
(i) astothecontents of the Endorsed Development Plans forthe Land;
O) astothecontents of the Works Program forthe Land;
(k) thatche Developer has provided to Places Victoria a copy of a letter the Developer hasgiven to the Contractor accepting the Contractor'stenderto carry outthe Developer sWorks;
Minter Ellison I Rat MEA ANS 30-6684923
15672795; 8904401_21ME_94532379_s (\V2003*)
RCD Development Agreement- Civic Precinct Site 11 page 28
(1) that the Developer is not currently relying on a Force Mtlieure Event which has preventedthe Developer from, or delayed the Developer in, perfonning any of its obligations underthis Deed;
(in) that there is no subsisting Default Event or Financial Deftiult;
(n) that the Developer has delivered to Places Victoria the following documents executed byallpartiesto the document other than Places Victoria:
(i) anyRegistrableAgreementreferredto in Schedule6; and
(ii) any instrument required to effectthe transfer of ParcelA; and
(0) that the Developer has entered into any Section 173 Agreement referred to in clause 28.2,and the Developer acknowledges that it has no riglit, entitlement or interest in relation to the Landuntil all conditions in this clause 5.2 are satisfied or waived in accordance with clause 5.3.
Places Victoria's Obligations
(a) Allcosts (including compensation) payable to any occupier of the Land necessary toachieve vacant possession of the Land by the Transfer Date are to be paid by PlacesVictoria.
Ifthe condition set outin clause 5.2(b) is riotsatisfiedbythe Conditions Precedent Date,the Developer may give notice to Places Victoria coevaloper's Notice)that it intendstotenninate the Project Documents andthis Deed ifthe condition in clause 5.2(b) is notsatisfied within 14 days of Places Victoria's receipt of the Developer SNOtice, If thecondition set out in clause 5.2(b) is not satisfied within 14 days of receipt of theDeveloper's Notice, the Developer may terminate the Project Documents and this Deed inwhich case:
on the date oftennination of this Deed, all Project Documents will be deemed tohave been terniinated;
Places Victoriawillwithin 20 Business Days after tennination of this Deed returnto the Developer:
(A) the Deposit;and
(B) any Pertbnnance Security provided by the Developer to Places Victoria;(iii) no compensation will be payable by the Developer to Places Victoria;
(iv) Places Victoria acknowledges and agrees that it has no Claim againsttheDeveloper for any matter arising from or in connection with this Deed orthetermination of this Deed;
(v) subject to clause 5.3(b)(vi) no compensation will be payable by Places Victoriatothe Developer;
subjectto clause 5.3(b)(vii)the Developer acknowledges and agrees that it has noClaim against Places Victoria for any matter arising from or in connection withthis Deed or the terniination of this Deed; and
(vii) Places Victoria will pay to the Developer on demand:
(A) the reasonable legal costs and consultants costs incurred by the Developerin negotiating and entering into this Deed; and
(i)
(ii)
(vi)
Minter Ellison I Ref: MEA ANS 30-6684923
t5672795: 8904401_21ME_94532379_S(W2003^)
RCD Development Agreement- Civic Precinct Site 11 page 29
SatisfactionIwaiver of conditions
(a) Subjectto clause 5.4(b), the parties acknowledge that all of the conditions in clause 5.2are for the benefit of Places Victoria and may be waived by Places Victoria.
(b) The parties acknowledge that the conditions in clause 5.2(a) and clause 5.2(b), in additionto being forthe benefit of Places Victoria, are also forthe benefit of the Developer andmay be waived by Developer*
(c) The Developer must
(i) report at times reasonably required by Places Victoriaon its progress in satisfyingthe conditions in clause 5.2; and
(ii) respond reasonably and promptly to the requirements of Places Victoria or anyGovernment Agency whose consent orApprovalthe Developer must obtaintosatisfy any condition in clause 5.2 by the Conditions Precedent Date.
IfPlaces Victoria:
(i) is not satisfied, acting reasonably, (including withoutlimitation being unable to besatisfied because of a failure of the Developer to do or procure anything implicitlyor explicitly required under clause 5.2) in relation to; or
(ii) hasnotwaived,
the conditions in clause 5.2 by the Conditions Precedent Date:
(iii) subjectto clause 5.4(e) Places Victoria may terminate any of the ProjectDocuments (including, withoutlimitation, this Deed);
(iv) Places Victoria may retain any Deposit paid by the Developer and any interestearned on it;
(v) Places Victoria may draw down on the Perlonnance Security to recover allloss ordamage it may suffer arising out of the Developer's failure to satisfy the conditionsin clause 5.2, including, without limitation, costs of rebidding; and
(vi) no Compensation maybe claimed from Places Victoria;Before Places Victoria tenninatesthis Deed in accordance with clause 5.4(d) PlacesVictoria must give notice to the Developer(Places Victoria's Notice)that it intendstotonninate the ProjectDocuments and this Deed unlessthe conditions in clause 5.2 aresatisfied within 14 days of the Developers receipt of Places Victoria's Notice.
Places Victoria must exercise its rights to give notice in accordance with clause5.4(e)within 3 Business Days of the Conditions PrecedentDate. IfPlaces Victoria doesnot give notice in accordance with clause 5.4(e)within that time, Places Victoriawill havewaived its rightto do so and to tenninate this Deed in accordance with clause 5.4(d).
Ifthis Deed is terminated under clause 5.4(d):
(i) subjectto clause 5.4(i) and to Places Victoria being entitled to retain the Depositand the Perfonmance Security, Places Victoria acknowledges and agrees that it hasno Claim againstthe Developer for any matter arising from or in connection withthis Deed orthetennination of this Deed, including compensation or payment foranywork carried outto or on the Land;
the costs of the Developer complying with its obligations under this Deedto the date oftennination.
Mintsr Ellison I Ref: MEA ANS 30-6684923
t5672795: 8904401_21ME_94532379.5 (w2003")
RCD Development Agreement- Civic Precinctsile I I page 30
the Developer acknowledges and agrees that ithas no Claim against PlacesVictoria for anymatter arising from or in connection with this Deed ortheterniination of this Deed, including compensation or payment for any work carriedoutto oron the Land;
(h) Subjectto clauses 5.4(d) and 5.4(i) Places Victoria may not make any requisition orobjection or claim compensation for any matter arising under this clause 5.4.
(i) IfPlaces Victoriateiniinatesthis Deed in accordance with clause 5.4(d)(in) as areSUIt ofthe Developer's failure to satisfy any of the conditions in clause 5.2 (exceptfortheconditions in clauses 5.2(a) or 5.2(b))the Developer will pay to Places Victoria ondemand:
(i) the reasonable legal costs and consultants costs incurred by Places Victoria innegotiating and entering into this Deed;
(ii) the costs of Places Victoria complying with its obligations under this Deed to thedate oftennination; and
(in) allreasonable costs and expenses expended by Places Victoria in achieving orseeking to achieve vacantpossession of the Land, including but notlimitedtolegal fees, consultants fees, relocation costs, professional expenses, compensation,ex eratiapayments and loss of rental income from tenants which have vacated theLand.
Entry to Land before satisfaction of conditions precedent(a) Places Victoria may in its absolute discretion gt. antthe Developer Early Occupation of the
Land to enable the Developer to carry outthe Early Works.
(b) IfPlacesVictoriagr. antstheDeveloperEar!y Occupation, the Developer must:
(i) enter into the Early Occupation Licence with Places Victoria before it firstaccesses the Land for Early Occupation; and
(ii) to the extent not included in the Early Occupation Licence* pay all!and tax, andmunicipal charges payable in respect of the Land irrespective of whether theseamounts are charged to Places Victoria orthe Developer or otherwise,
(c) The Developer must pay orreimburse the costs of Places Victoria in relation to thepreparation, completion and execution of the Early Occupation Licence.
(d) In exercising a right under clause 5.5(a), the Developer must not unreasonably interferewith any other licensee of the Land or Places Victoria's use of the Land.
(6) Ifthis Deed is tenninated, and ifrequested by Places Victoria, the Developer mustimmediately make good the Land. The Developer will have no riglitto compensation orpayment from Places Victoria for Early Works carried outbythe Developer,
(f) The Developer acknowledges that any Early Occupation Licence granted to it does notentitle it to possession of or any legal or equitable estate in any part of the Land.
Payments to Places VictoriaThe Developer must pay the Price to Places Victoria in accordance with the Land Sale Contract.
Parcel B
(a) The parties intendthateither:
5.6
5.7
Mintsr Ellison I Ref; MEA ANS 30.6684923
15672795: 890440, _21ME_9453z379_S or2003, )
RCD Development Agreement- Civic Precinct Site I I page 31
(i) the Developer will acquire and develop ParcelB to accommodate a building ofcomplementary use to the Developer's office located on Parcel A and civic plazalocated on ParcelC; or
(ii) the Developer and Places Victoriawillworktogetherto attract a third partydeveloper to acquire and develop ParcelB to accommodate a building ofcomplementary use to the Developer's office located on ParcelA and civic plazalocated on ParcelC.
Places Victoria agrees notto sell, transfer, encumber or dealwith ParcelB in any otherway that is inconsistentwith the intention of the parties set out in this clause 5.7, without:(i) providing prior written notice to the Developer of its intention to dealwith Parcel
B including sufficient details and inforrnation relevantto the proposal that PlacesVictoria is entitled to disclose (Alternative Proposal Notice); and
allowing the Developer a period of 30 days, from the date that the Developerreceives the Alternative Proposal Notice, to submitits own alternative proposal forParcelB (the Developer's Proposal) and negotiate with the Developer in goodfaith in respect of the Developer's Proposal.
If, within a period of 30 days from the date that the Developer receives the AlternativeProposal Notice:
(i) no agreement is reached between the Developer and Places Victoria in respect ofthe Developer's Proposal; or
(ii) the Developer does riotsubmitaproposal,
Places Victoria may, in its discretion, deal with ParcelB in any manner it considersappropriate.
5.8 Calculating the PerlormanceSecurityThe amount of Pertonnance Security lis an amount equivalent to 4016 of the greater of:(a)
co $500,000(fivehundredthousanddollars);and
(ii) 2% of the amount of the Total Development Cost aimbutab!eto the Land.(b) The amount of Performance Security 2 is an amount equivalentt0 60% of the greater of:
(i) $500,000(mehundredthousanddollars);and
(ii) 2% of the amount of the Total Development Cost attributable to the Land.The amount of the Perlonnance Security will be calculated as at the date of this Deed andrecalculated on the Transfer Date.
Delivery of and using the Performance Security(a) The Developer must deliver the Performance Security to Places Victoria on or before the
earlier of:
(i) the date on which the Developer wishes to take Early Occupation of the whole orany part of the Land whether in accordance with clause 5.5 or otherwise; and
(ii) the Transfer Date.
(b) Places Victoria may draw down upon the Perlomiance Security at any time from the dateof this Deed untilthe date on which the Performance Security must be returned to theDeveloper in accordance with clause 5.9(d)(in).
ROD Development Agreement -Civic Precinct Site I I page 32Mintsr Ellison I Ref: MEA ANS 30.6684923
15672795: 890440, _21ME_9453z379_3{W200ax)
(ii)
(c)
5.9
Places Victoria may draw down upon the Performance Security in relation to any amount:
(i) which Places Victoria is expressly authorised to under this Deed or any ProjectDocument;
(ii) whichtheDevelopermustreimburseto Places Victoria;
(in) which Places Victoriapays on the Developer's behalfunder this Deed oranyProject Document; or
(iv) which the Developer owesto Places Victoria (whether under this Deed, the LandSale Contract or any other Project Document).
In relation to the Pertomiance Security:
the Developer must provide such replacement cash security or Bank Guarantees to(i)Places Victoria as is necessary to ensure the amountsecured by the PerlonnanceSecurity is at alltimes in accordance with clause 5.8;
(ii) the Developer must provide Places Victoria with a replacement cash security orBank Guarantee within 60 days of:
(A) the long-tenn creditrating of the issuer of the cash security or BankGuarantee falling below the Minimum Credit Rating; or
(B) Places Victoria giving written notice to the Developer to replacethe cashsecurity orBank Guarantee wherethe beneficial ownership of the issuedshare capital of the issuer of the cash security or Bank Guarantee has beenaltered; and
subjectto this Deed, Places Victoriamust, within ten Business Days of:(A) the later of
(1) the Developer making allpayments under this Deedin respect ofthe Price; and
(11) Practical Completion having occurred,
return that part of Performance Security I not drawn down upon to theDeveloper; and
(B) the later of
(1) the Developer's compliancewith clause 14.1(a) orthedate onwhich Places Victoria agrees to waive the Developers obligationunder clause 14.1(a) in accordance with clause 14.1(b)(whicheveris applicable); and
(11) the Developer'scornpliancewithclause20.6,
return that part of Perfomiance Security 2 not drawn down upon to theDeveloper.
Presentation of, drawing on or enforcing the Performance Security will not prevent PlacesVictoria from seeking alternative or additional remedies or from claiming from theDeveloper losses, expenses, costs ordamages in excess of the amountreceive y acesVictoria on presentation or drawdown.
5.10 Boundaries of Land
(a) The Developer acknowledges avariationtothe boundaries of the Land:RCD Development Agreement- Civic Precinct Site I I page 33Minter Ellison I Rel: MEA ANS 30-66B4923
15672795: 890440, _21ME_945323?9.51w2003x)
(i) can onlybemade with the consentofPlacesVictoria; and
(ii) may require consentoftheMinisteradministeringtheAct.
(b) IfPlaces Victoria agrees to alter the boundaries of the Land at the request of theDeveloper, Places Victoriareservesthe rightto alter the Price and any other paymentstobe made by the Developer under this Deed, the Land Sale Contract or any other ProjectDocument asit deems appropriate, provided that suchrevised amounts have first beenapproved by the Valuer-General and the Land Monitoring Division of the DPCD.
(c) Ifa dispute arises in relation to any variation in Price, clause 31 will apply to theresolution of the dispute.
(d) Places Victoriamust accommodate allreasonable requests of the Developer in regard todetermining the boundary and building footprint specifications for ParcelB, to the extentthat such requests do not, in the opinion of Places Victoria (acting reasonably), adverselyimpact on the potential development of ParcelB.
(e) Places Victoria may only change the boundaries of the Land after providing prior writtennotice of the change to the Developer and after accommodating allreasonable requests ofthe Developer in respect of the change in accordance with clause 5.10(e). Whereappropriate, Places Victoriamust pay reasonable Compensation to the Developer forchanging the boundaries of the Land.
5.11 NOCaveat
(a) Subjectto clause 5.11(b), the Developer must notlodge (or pennitthe Financierstolodge) a caveat:
against allor any part of the Land untilthe parties have entered into the Land SaleContract; and
(ii) unless it relates to an interest arising directly from that Land Sale Contract.
(b) Clause 5.11(a) only applies in respect of ParcelA untilthe date of Practical Completionof the Developers Work located on ParcelA.
5.12 Compliance with requirements of Government Agencies(a) The Developer must comply with allApprovals, Law and requirements of Government
Agencies with respectto the purchase, ownership, occupation, maintenance and use of anypart of the Land including, withoutlimitation:
(i) payment of allStatutory Charges applicable to the Land orany Services servicingthe Land;
(ii) meeting therequirements for provision of Developer'SInfrastrucfure in connectionwith the Land;
(in) compliancewiththe Planning Scheme; and
(iv) compliancewith Laws administered by anymunicipalcouncil,
on and from the date on which the Developer owns, possesses, occupies, uses or has ariglitto own, possess, occupy or use the Land untilPractical Completion.
(b) The Developer must comply with allApprovals, Law and requirements of GovernmentAgencies with respectto any obligations which:
(i) are then current orprospective in relation to a ProjectDocument; and
(it related to the Land,Minter Ellison I Ref: MEA ANS 30-6684923
15672795: 890440, _21ME_9,532379,5 (W2003*)
RCD Development Agreement- Civic PrecindSile I I page 34
on and from Practical Completion.
5.13 Management of Parcels B and C(a) Places Victoria winenterinto the Management Agreement with the Developer in respect
of ParcelB and Parcel C which will operate untilthe earlier of:
(i) the date on which the final design specifications forthe development to beconstructed on ParcelB has been approved by the Design ReviewPanel; and
(ii) the development on Parcel B (by the Developer or any other person) hascommenced.
The parries acknowledgethat once the Crown Grant for ParcelB hasissued Parcel C wibe designated as Crown land and the Developer will be appointed asthe committee ofmanagement.
6.
6.1
Developers riskRisk
The Developer unreservedly accepts responsibility for allrisks relating to the Developer's Projectincluding, withoutlimitation, allrisks associated with obtaining the Approvals, unless otherwisestated in this Deed or any ProjectDocument.
Developer's acknowledgmentThe Developer acknowledges that:
(a) Places Victoriamay not undertake any function orcany out any taskwhich a GovernmentAgency would ordinarily undertake or carry out in a development similarto theDeveloper's Project; and
(b) it must not make any claim against Places Victoria or the State in relation to anyrepresentation orany advice in respect of a matter relevantto the Developers assessmentor undertaking of the Developer's Project orthe Developer's decision to enter into thisDeed or any Project Document.
Developer's warrantiesThe Developer:
(a) releases Places Victoria from any claim it may have, at any time, against Places Victoria,in relation to any information, data or other material provided by Places Victoria inassessing or undertaking the Developer's Project or in entering into this Deed or any otherProject Document;
warrants to Places Victoria that it has:
(i) completed due diligence of the requirements of the Land andthe Developer'sProject; and
(ii) relied on its own investigations and enquiries in relation to the accuracy, suitabilityand completeness of the infomiation, data and other material referred to inclause 6.3(a); and
acknowledges that Places Victoria has relied on this warranty in entering into this Deed.
Mintsr Ellison I Ref: MEA ANS 30-6684923
15672795: 8904401_21ME_9,532379.5 (W2003*)
RCD Development Agreement - Civic Precinct Site I I page 35
7.
7.1
Planning
Planning Approval(a) The Developer must obtain allnecessary Planning Approvals and other Approvals
required in connection with the Developer's Project,
(b) The Developer must submitthe Approved Development Plan to the Planning ApplicationReview Panelwithin 14 days after its approval by the Design Review Panel for Pre-lodgement Consultation.
(0) Following Pre-lodgementConsultation, the Developer must submitthe ApprovedDevelopment Plan (whichApproved Development Plan includes anyamendments madein accordance with the Pre-lodgement Consultation)to the responsible authority under thePlanning Scheme for Planning Approval as soon as practicable and in any event insufficienttime beforethe Conditions Precedent Dateto ensure that Planning Approval for
the Approved Development Plan is obtained by the Conditions PrecedentDate,
(d) The Developer must promptly give to Places Victoria a copy of allnotifications,conditions and requirements issued by the responsible authority under the PlanningScheme and any referral authority under the Planning Scheme in relation to the submittedApproved Development Plan, including, withoutlimitation a copy of all correspondenceand notificationsftom the responsible authority under the Planning Scheme confinningthat Planning Approval hasissued together with acopy of the Approved DevelopmentPlan approved and endorsed by the responsible authority and any other design documents,drawings, specifications and information approved and endorsed by the responsibleauthority in connection with the Planning Approval.
(6) The Developer must comply with and satisfy all conditions and requirements notified bythe responsible authority under the Planning Scheme and any referral authority under thePlanning Scheme in connection with the submitted Approved Development Plan and mustprovide to Places Victoria documentation which demonstrates that such conditions andrequirements have been complied with and satisfied as specified. The Developer mustcomply with any directions given by Places Victoria in relation to the conditions andrequirements notified by the responsible authority under the Flaming Scheme and anyreferral authority under the Planning Scheme from time to time.
Planning controlsThe Developer must:
(a) comply with the Planning and Development Controls and any Planning Approval
(b) not amend orseekto amend any Planning Approval withoutthe priorwritten consent ofthe Places Victoria;
(c) comply with the Parking RateGuidelines; and
(d) not commence any construction works untilallnecessary Planning Approvals and otherApprovals required in connection with the Developer's Project have been obtained, clause5.12(a) has been complied with and clause 7.1(e) has been complied with to PlacesVictoria's satisf;ICtion, acting reasonably.
Mintsr Eijison I Ref: MEA ANS 30.6884923
15672795: 8904401_21ME_94532379,5(w2003, )
RCD Development Agreement- Civic Precinctsi!e I I page 36
8.
8.1
Demolition, Reinediation and Environmental obligations
Demolition obligations
The Developer is responsible for procuring the:
(a) demolition of improvementsontheLand;
(b) removal of debrisftomtheLand;and
(c) reinediationoftheLand,
as part of carrying outthe Developer's Works.
Reinediation obligations(a) Before reinediating any part of the Land, the Developer must provide to Places Victoria
details of any reinediation of the Land it proposes to carry out. These details must include(but not necessarily be limited to):
the extent of the proposed reinediation and the proposed method of carrying outthat remedialion;
(ii) whether the remedialion is to be done in stages and ifso, details of those stages;
(in) a detailed timetable setting out when each stage of the reinediation is proposed tocommence and finish; and
(iv) the total cost allowed by the Developer to reinediatethe Land and ifthereinediation is proposed to be conducted in stages, the total cost oreach stage ofthe reinediation.
(b) Places Victoria may ask for, and the Developer must provide, any further details of theproposed reinediation.
(0) TheDevelopermust
(i) priorto Practical Completion, obtain (and providetoPlaces Victoria) a Statementof Environmental Audit stating that the Land is suitable to be used for the purposeas specified by the Developer in the Approved Development Plan ; and
(ii) subjectto clause 8.4, be responsible for all costs associated with or in any wayrelated to reinediating the Land to the extent necessary to enable such a Statementof Environmental Audit to be issued, The Developer acknowledges that PlacesVictoria and the State (in all of theirrespective capacities) are notresponsible forreinediating any part of the Land forthe purpose of obtaining a Statement ofEnvironmental Audit or, subjectto clause 8.4, any costs associated with or in anyway related thereto.
Condition of the Land
(a) The Developer must complete and provide a copy of the Environmental AssessmentReportto Places Victoriaby 31 March 2012.
(b) TheDeveloper:
(i) subjectto clause 8.4, is solely responsibleforpreparingtheEnvironmentalAssessment Report;
(ii) acknowledges that Places Victoria does notrepresent, and gives no warranty as tothe condition of the Land or any part of it; and
8.2
Minter Ellison I Ref: MEA ANS 30-66B4923
15672795: 8904401_21ME 94532379.5 N2O03")
RCD Development Agreement- Civic Precinct Site I I page 37
(iii) subjectto clause 8.4, releases Places Victoria from allliability arising out of or inrelation to the Environmental Assessment Report andthe existence of anyContaminant on the Land.
The Developer acceptsthe condition of the Land at the date of the execution of this Deed.Subjectto clause 8.4 the Developer will not make any claims againstPlaces Victoriaforcompensation, set off, damages or otherwise in respect of the condition of the Land anthe Developer agrees it is responsible forthe costs of reinediating the Land.
Subjectto clause 8.4, on and from the Transfi^r Date, the Developer indemnifies andreleases the State in all of its capacities, Places Victoria and its officers and agents andindemnifiesthem against any claims, costs, losses, damages, expenses, judgments, suitsor, awards and liabilities whatever(including any costs or expenses of deftsnding ordenying them and including the costs and expenses of preparing any necessaryenvironmental assessment report or other report) arising out of or in respect of:
(i) any Contaminantin, on, under or which has emanated onto orftom the Landwhether or not it is disclosed orref;erred to in the Environmental AssessmentReport;
(ii) any Contorninantin, on, under or which has emanated onto or from the Landcaused, contributed to or exacerbated by the Developer orits servants, agents,employees or contractors;
(iii) any work pertonned by or forthe Developer to obtainthe Statement ofEnvironmental Audit or any failure of that work; and
the Statement of Environmental Audit forthe Land being defective orinvalid orhaving been improperIy obtained or provided,
The release and indemnity provided by this clause 8:
(i) willsurvivePracticalCompletion;and
will not apply to any costs, losses, damages, expenses, judgments, suits, claims,(ii)awards orliabilities which are in respect of any defects in the reinediation worksfor which Places Victoria was responsible.
(0)
(d)
(iv)
8.4 Price Offset
All costs, expenses and loss incurred by the Developer associated with demolishing(a)improvements on the Land and reinediatingthe Land (including the costs of the Developerpreparing the Environmental Assessment Report and apart 6 audit) up to the Cap Amountwill be offsetftom the Price.
By 30 April2012 the Developer must provide to Places Victoria its proposal(Developer sCap AmountProposal) astothe Cap Amount and allrelevantsupporting documentationsuch as copies of quotationsto undertake the demolition and remedialion work.IfPlacesVictoria disputes the Developer's Cap Amount Proposal, Places Victoria mustgive to the Developer within 30 days of receipt of the Developer s Proposal the proposalof Places Victoria asto the Cap Amount(Places Victoria Cap AmountFroposal).
Ifthe Developer does not give notice to Places Victoria accepting the Places VictoriaCapAmount Proposal within 7 days of receipt of the Places Victoria Cap Amount Proposal,the Cap Amountwillbe daterrnined by an Independent Quantity Surveyor agreed to byPlaces Victoria andthe Developer. IfPlacesVictoria and the Developer do not agreeupon an Independeiit Quantity Surveyor within 14 days of the Developer sreceiptofthe
(b)
(0)
(d)
Mimer Ellison I Ref: MEA ANS 30-6684e23
t5672795: 890,401_21ME_94,32379_s (W2003, )
RCD Development Agreement - Civic Precinctsite I I page 38
8.5
Places Victoria Cap Amount Proposal, the Independent Quantity Surveyor will be thatperson agreed to by Places Victoria andthe Developer within 30 days of the date of thisagreement.
(b) The Independent Quantity Surveyor will act as an expert and not as an arbitrator and thedecision of the Independent Quantity Surveyor will be final and binding except in the caseof manifest error.
The Developer and Places Victoria must each pay one halfofthelndependent QuantitySurveyor's fees and charges.
The Developer is responsible for allcosts, expenses and loss incurred by the Developerassociated with demolishing improvements on the Land and reinediatingthe Land inexcess of the CapAmount.
(0)
(d)
9. MarketingThe Developer must
(a) promote andmarkettheDeveloper'sProject;
(b) as part of the Developer's Project, promote and market, and supportthe promotion ofmarketing of, Central Dandenong and the revitalising Central Dandenong initiative;not, in promoting or marketing the Developer's Project, use orfiaature any of the(0)Revitalising Central Dandenong Marks without Places Victorias priorwritten approval,which approval may be withheld in Places Victoria's absolute discretion; and
(d) not:
disclose to prospective tenants, occupants, users orpurchasers of the Deve opersProject any aspect of the Developer's Project;
(ii) publicise or marketany aspectoftheDeveloper'sProject; or
(in) include in any promotional or marketing material any aspect of the Developer'sProject,
which ismconsistent with the Approved Development Plan.
(i)
10. Design
10.1 Developer'sdesignobligationsThe Developer must develop and completethe design ofthe Developers Project to ensure eDeveloper's Projectcan be constructed.
10.2 DesignDocumentationThe Developer must develop the Design Documentationto ensure that it is consistent wit t eEndorsed Development Plans.
10.3 Design Review Panel's approval required for Design Documentation(a) The Developer must, a sufficienttime before the Date for Practical Completion to ensure
that Practical Completion occurs on or before the Date for Practical Completion, submitthe Design Documentation to the Design Review Panel for approval.
Minter Ellison I Ref MEA ANS 30,6684923
15672795: 890440, _21ME_9,5323?9_5 my2003, )
RCD Development Agreement- Civic PreyindSi!e 11 page 39
(b) The Developer must notcommencethe Developer's Works untilthe DesignDocumentation is approved by the Design ReviewPanel.
10.4 Design Review Panel(a) As soon as practicable after the date of this Deed, Places Victoria will procure the
establishment of the Design Review Panel.
(b) The purpose of the Design Review Panelincludesto review and approve the DesigiDocumentation submitted by the Developer in accordance with clause 10.3.
,0.5 Design acknowledgements and warranties(a) Places Victoria'sreceipt and review of any Design Documentation is solely forthe
purpose of monitoring the pertonnance of the Developer.
(b) Places Victoria undertakes no responsibility or duty in relation to any aspect of the designof the Developer's Project.
(c) Places Victor^sreview of any Design Documentation does not give rise to anyresponsibility or duty on the part of Places Victoria in relation to any aspect of the DesignDocumentation.
(d) The Developer is and remainstotally responsible forthe design of the Developer's Projectand the requirements of any Government Agency in relation to the design of theDeveloper's Project.
I I,
11. ,
Infrastructure
Developer's obligationsThe Developer is responsible for allcosts and expenses relating to the Developers obligationsunder this clause 11.
.2 Developer'sresponsibilitiesThe Developer is solely responsible for:
(a) the costofinstallingandmaintainingthe Developer'SInfrastr'ucture;
(b) the cost of all headworks charges, including the costs of and provision of the water supplyworks, wastewater works and stormwater drainage worksrequired forthe DevelopersInfrastructure;
(c) the costofinstallingand maintaining allconnections;
(d) the costofanyrelatedcharges;
(e) the adequacy of, delivery of or need to upgi. ado any infrastnictore, Services or Third PartyServices servicing or intended to service the Land; and
(f) the co-ordination and integration of the Developer'sinnastructurewithotheradjoiningdevelopment projects, completed developments and existing infrastructure and Services,
and the Developer releases Places Victoria, the State and any relevant Third Party from any claimit may have, at any time, arising out of or in respect of anything connected with this clause 11.2.
Minter Ellison I Ref: MEA ANS 30-6684923
15672795: 890,401_21ME 9,532379_S (W2003")
RCD Development Agreement -Civic Precinctsite I I page 40
.3 Maintenance
The Developer must, at its cost and from the date of its installation untilthe time required y anyrelevant Government Agencies, ensure that allDevelopers Infrastructure is properly maintainein accordance with the MaintenanceManagementPlan.
12. Third Party Services12.1 Relocation
The Developer must at its cost:
(a) make enquiries astothe location of any Third Party Services located above orbelow thesurface of the Land;
notify the Third Party ifany Third Party Services are located above orbelow the surfaceof the Land;
natse with the Third Party regarding potential relocation or protection of those Third PartyServices; and
(d) ifrequiredbytheThirdParty:
(i) relocate those Third Party Services at the Developer's costto an area within oroutside the Land;
(ii) grant a formal registered easement in favour of the Third Party or otherappropriate person;
(in) agree to the Third Party orother appropriate person taking the benefit of anystatutory access power orstatutory easement to which it may be Gritit e ; or
(iv) grant an irrevocable licence in favour of the Third Party or other appropriateperson,
on tenns and conditions which ensure the continued and uninterrupted use of and accessby the Third Party to those Third Party Services.
12.2 CompensationThe Developer acknowledges that no Compensation or other payment will be paya e yt eThird Party, the State, Places Victoria or any other person in relation to anymatter arising ou oclause 12.1.
,2.3 PrecinctEnergy Plant
(a) The Developer acknowledges that Places Victoriahas appointed Cogent Energy PtyLtd asthe operator forthe Precinct Energy Plantto design, construct and provide CentraliseServices to RCD Area I,
The Developer must design the Developer's Projectin a manner which ensures that it canconnectto and be serviced on completion, by the Precinct Energy Plant.
The Developer must work reasonably, collaborativeIy and in good faith with PlacesVictoria during the design development and detailed documentation phases to agree howany costsavings incurred as a result of connecting the Developers Projectto the PrecinctEnergy Plant will be treated.
The Developer acknowledges that no Compensation or other payment will be paya e ythe State, Places Victoria or any other person in relation to any matter arising out of or inconnection with this clause 12.3.
RCD Development Agreement- Civic ProcindSite 11 page 41Mintsr Ellison I Ref: MEA ANS 30,6684923
15672795: 890440, _21ME_94332379_s IW2003x)
(b)
(c)
(b)
(c)
(d)
Provided that the Developer has designed and constructed the Developers Project in amanner which ensures that it can connectto and be serviced on completion by the PrecinctEnergy Plant, the parties acknowledge that the Developer may, or may not, in its a so utediscretion, connectthe Developers Projectto the Precinct EnergyPlant and that nothingin this Deed constitutes apositive obligation on the Developer to do so.
13. Construction
13.1 Developer's general construction obligationsThe Developer must carry outthe Developer's Project(including any Variations approved(a)or notified in accordance with this Deed):
in accordance with this Deed and the Site Plan such that each element of the(i)Developer's Project, when completed, is in accordance with the EndorsedDevelopment Plan andthe Approved Design Documentation;
(ii) to ensure it accordswiththeObjectives;
(in) to ensure compliance with allApprovals, Law, building codes andrequirements ofanyGovemmentAgency;
in atjinely mannerso asto achieve each Milestone Date;
in accordance with all Approvals required for allaspects of the integration of theDeveloper's Works with adjoining development projects or completeddevelopment;
(vi) using GoodDesigiiand Construction Practices;
(vii) to ensure that the Developer's Works are executed so that upon PracticalCompletion, the Developer's Project complies with allLaw and sumdar s;
(viii) to ensure it complies with any direction given by Places Victoriaunder this Deed;in accordance with the Construction Management Plan approved under clause(in)13.2; and
in accordance with andirectionsftom, requirements of and standards issued byPlaces Victoria and/or any Municipal Body in relation to public areas on the Land,
13.2 Construction management
(a) The Developer must, at least one month priorto the earlier of:(i) commencement of the Developer'sWorks;
(ii) (ifapplicable) the commencement of anyworks pennitted under a licence giantedto the Developer under clause 5.5; and
(in) 30 days after the transf;ar of ParcelA,
prepare and submitto Places Victoria for approval a Construction Management P an.(b) Places Victoria must review any plan submitted by the Developer under clause 13.2(a)
and consentto (whether or not subjectto conditions) orrejectthat plan within 14 days ofreceipt of any plan,
Ifunder clause 13.2(b) Places Victoria rejectsthe plan, the Developer must amend thatplan and re-submit it for Places Victoria's approval and the processes under clauses
(iv)
(v)
(x)
(c)
Minter Ellison I Rat MEA ANS 30-6684923
t5672795: 8904401_21ME_94532379,50V2003*)
RCD Development Agreement- Civic Precinct Site I I page 42
13.2(a) and 13.2(b) will continue to apply untilsuch time as Places Victoria approves theproposed plan.
(d) The Developer must not commence the Developer's Works orthe works permitted under alicence granted to the Developer under clause 5.5 unless and until Places Victoriaapproves the Construction Management Plan submitted by the Developer under thisclause 13.2. The Developer acknowledges that this clause 13.2(d) does notrelieve theDeveloper of its obligations under clauses 16.1 or 16.3.
13.3 Adjoining precincts and land(a) The Developer must riot damage any land, buildings orinfrastnicture adjoining the Land
or delay or interfore with any surrounding and adjacent developments or infrastructureworks (whether existing or proposed).
(b) The Developer must, priorto the commencement of the Developer's Works, procure that aDilapidation Report is prepared.
(c) The Developer must, whilstcanying out the Developer's Work, installand maintainadequate protection works in respect of land, buildings and infrastructure adjoining theLandto ensure that the land, buildings and infrastructure adjoining the Land are notdamaged.
(d) The Developer must
(i) ensurethe integration, co-ordination andcompatibilityoftheDeveloper'sWorkswith other development projects(including obtaining all necessary Approvals);and
(ii) accept allresponsibility for any effectthe Developer's Worksl, ave on adjoining,surrounding and adjacent development or infrastructure projects or completeddevelopment orinftastructure, land outside the Land or any third party.
(e) The Developer acknowledges the importance of themtegration, co-ordination andcompatibility of Developer'SInfrastructure within the Land and between otherdevelopment projects and must use its best endeavours to ensure integration, co-ordinationand compatibility of Developer's Infrastructure is achieved.
(f) The Developer indemnifies Places Victoria for any loss, cost, damage, liability or otherdetrimentincurred or suffered directly or indirectly by Places Victoriarelating to physicaldamage to adjoining, surrounding or adjacent development or infrastructure projects orcompleted development orinftastructure, land outsidethe Land orthird parties caused orcontributed to by the improper behaviour ora breach of this Deed by the Developer exceptto the extent caused or contributed to by Places Victoria.
13.4 AccesstoLand
(a) The Developer must ensure that accessto and through the Land is maintained inaccordance with the Construction Management Plan.
(b) The Developer must give Places Victoria accessto the Land to enable it to reviewcompliance by the Developer of any of its obligations under this Deed. Places Victoriamust use allreasonable endeavoursto ensure access causes the minimum level of
interference'possible with the carrying out of the Developer's Works by the Developer.
Mimer Ellison I Ref: MEA ANS 30-6684923
15672795: 8904401_21ME_94532379_s (w20u3x)
ROD Development Agreement -Civic Precinct Site 11 page 43
3.5 SiteCondition
In addition to its obligations under clause 12.1, the Developer acknowledges that it is aware ofand accepts responsibility for all Site Conditions and that it must constructthe Developer's Projectwith proper consideration of the Site Conditions.
3.6 Subcontracting the Developer's WorksThe Developer is not relieved of any of its obligations under this Deed as a result of sub-contracting any part of the Developer's Works.
13.7 Defective work
(a) IfPlacesVictoriareceives notification from the IndependentAssessorthat:
(i) the quality of anymaterial;
(ii) the standardofworkmanship;or
(in) anyotheraspectoftheDeveloper's Works,
does not comply with this Deed, Places Victoria may:
(iv) give written notice of this to the Developer requiring the Developer to promptlyremove, re-execute, orreplace the material, workmanship or other aspect to rectifythe defaultto Places Victoria's satisfaction within the specified time.
13.8 Restriction on Variations
The Developer must notmake any Variations exceptin accordance with clause 13.9.
,3.9 Developer'sVariations(a) The Developer may at any time before the Date for Practical Completion request a
Variation where:
(i) the Variation will not have an adverse effect on the workmanship or durability ofan item of plant or equipment; or
(ii) the Variation is consistentwith the Approved Development Plan,
and Places Victoria must not unreasonably withhold its approval to that Variation.
(b) Ifthe Developer wishes to propose a Variation under this clause 13.9 the Developer mustsubmitthe proposed drawings and specificationstogether with reasons forthe Variation toPlaces Victoria.
(c) IfPlaces Victoria approves the Variation the Developer may implement the Variation inthe execution of the Developer's Works.
,3. ,0 State Government Funding
(a) The parties acknowledgethat:
(i) the Developer will procurethe Developer's Projectusing GoodDesigiiandConstruction Practices without State Government assistance;
(ii) an opportunity exists to invest in higher quality outcomes forthe public realmelements of the Developer's Project and to secure a regional standard public libraryand premium standard civic space to underpin the overallsuccess of the StateGovernment sponsored Revitalising Central Dandenong Project,
Minter Ellison I Rel: MEA ANS 30,6684923
15672795: 890440, _21ME 9453z3?9_S (W2003^)
RCD Development Agreement -Civic Precinct Site I I page 44
Places Victoria will provide allreasonab!e assistance and actively supportthe Developerin the preparation of applications for State Government funding towardsthe cost of Ii ingthe sumdard of those part of the Developer's Works comprising:
(i) the proposed municipal library to aregionallibrary standard;
(ii) the proposed public open space to apremium quality equivalent to the StateGovernment funded streetscape works in Lonsdale Street; and
(in) any other aspect of the Developer's Project, at the absolute discretion of theDeveloper.
In carrying outits obligations under this clause Places Victoria is not obliged to make anymonetary contribution to the Developer orto any other party nor is Places Victoriarequired to lobby for or lead any application for assistance.
13.11 Quality assurance(a) The Developer must ensure its Contractor establishes and maintains aquality assurance
program to the appropriate ISO 9000 Series Standards. The Developer must monitorcompliance by the Contractor with the program.
(b) The Developer must ifrequested by Places Victoria provide evidence of its Contractor'scompliance with the quality assurance program.
(c) The Developer is not relieved of any liability under this Deed as a result of(i) compliancewiththequalityassuranceprogram;or
anything which Places Victoria does or does not do with respecttothe quality(ii)assurance program, including auditing the Contractor s compliance with theprogram.
13.12 Safety and emergencyThe Developer must at antimes while performing the Developers Works:(a) establish, maintain andcomp!ywith appropriate emergency safety and security
procedures;
(b) comply with allLawrelatingtohealth and saf;sty;
(0) do alithings prudent and necessary to protect people and property;
(d) preventnuisance andunreasonable noise and disturbance; and
(6) protectthe Land and maintain security of the Developer's Works site and the perimeter ofthe Land.
3. ,3 Safety and preservation work to prevent deterioration(a) Ifthe Developer ceases to carry out the Developers Works for a prolonged period (as
determined by Places Victoria in its sole discretion)the Developer must immediately uponarequest by Places Victoria:
(i) protectandsecuretheLand againstweatherandtrespassers;
(ii) treat, seal and cover allsurfaces of the Landto preventdeterioration; and(in) make antheDeveloper'sWorkssafe.
Minter Ellison I Ref MEA ANS 30.6684923
15672795: 890440, _21ME_9453z379_5(W2003*)
ROD Development Agreement -Civic Precinctsite I I page 45
(b) Ifthe Developer failsto comply with clause 13.13(a) within seven days of the request byPlaces Victoria, Places Victoria may undertake those Developer's Works and may recoverthe cost of doing so from the Performance Security.
3. ,4 Reinstatement of damageIfloss ordainage occurs to the Developer's Works, people or property in connection with theLand, the Developer must at the Developer's own costpromptly make good the loss or damage(exceptloss or damage solely caused by any negligent act or omission of Places Victoria, itsemployees, consultants or agents).
13.15 Industrial relations
(a) The Developer assumes allrisks in relation to industrial relations in respect of theDeveloper's Project,
(b) The Developer must use reasonable endeavoursto ensure the Contractorimplements andmaintains a best practice workplace relations program.
13.16 Occupational Health & Safety (Principal Contractor) ActThe Developer:
(a) shall strictly comply with all Lawrelating to the safety of persons on or aboutthe Land,and the carrying out of Works, including withoutlimitation the Occz!!, alto"a/Health &841'8ty, (Principal Contracto, ? Her;
(b) accepts an appointment by Places Victoria asthe Principal Contractor in connection withthe Works being performed on the Land forthe purposes of the Occi!patio"o1Heo/th &Sty'ety (Principal Contractor) ACi;
(c) acceptsthatitisthe 'principal contractor' forthe purpose of the Occupational Health andSafety Regulations 2007 (Vic) and Places Victoria does nothave management orcontrolof the workplace forthe purpose of the Occa!pationolHeal!handsqfety, Act 2004 (Vic);
(d) acknowledges the appointment by Places Victoriaofthe Developer asprincipalContractor referred to in clause 13.16(a) does not create any liabilities or obligations onPlaces Victoria in respect of the Works and/orthe appointment of the Developer as thePrincipal Contractor; and
(e) undertakes it will not make any Claim against Places Victoriafor any matter whatsoeverarising out of the appointment referred to in clause 13.16(a) or the Developer's obligationsarising out of the appointment as Principal Contractor,
13.17 Green Star Design Rating(a) The Developer agi. ees that the rating toolversion to be used by the Developer to achieve
its obligations under this clause 13.17 will be the version required by Green BuildingCouncil Australia,
(b) The Developer must as acondition of achieving StagePracticalCompletion:
(i) achieve a five star Green Star Design Rating forthe Developer's Project in respectof each Stage; and
(ii) provide acertificate to Places Victoria as evidence of it having achieved thatrating. '
(0) The Developer must report at times reasonably required by Places Victoria on its progressin obtaining the five star Green Star Design Rating forthe Developer's Project in respectof the Stage,
Minter Ellison I Rat MEA ANS 30,668,923
15672795: 890440, _21ME_94,32379_S (W2003x)
RCD Development Agreement- Civic Precinc! Site I I page 46
The Developer must submitto Places Victoria satisf^. ctory evidence of the Developerscompliance with clause 13.17(b) by no later than the relevant Date for Stage PracticalCompletion.
In addition to the Developer's obligations under clause 13.17(a), ifas part of the GreenStar certification process, the Developer is required to make a round two submission toGreen Building CouncilAustralia, the Developer must make the round two submission toGreen Building CouncilAustralia within the timeframe required by the Green BuildingCouncilAustralia and sufficiently early to comply with its obligations under this clause13.17.
3.18 Green Star As Built Rating
(a) The Developer agrees that the rating toolversion to be used by the Developer to ac ieveits obligations under this clause 13.18 will be the version required by Green BuildingCouncil Australia.
(b) The Developer must ensure that it achieves a five star Green Star As Built Rating fortheDeveloper's Project within 12 months after the Date for Practical Completion,
(0) The Developer must submitto Places Victoriasatisfactoryevidenceofthe Developer'scompliance with clause 13.18(b) by no later than the date which is 12 months after theDate for Practical Completion.
The Developer may make awntten request to Places Victoria for an extension tot emonth period ref^rred to in clause 13.18(b) notlaterthan 3 months priorto the expiry ofthat period. The Developer must, with any request, provide Places Victoria wit evi encewhich demonstrates to Places Victoria's reasonable satisfaction that it has active y pursuethe required Green StarAS Built Rating from the Green Building CouncilAustra in(including having lodged allnecessary documentation) and has otherwise done anthingsnecessary to procure the rating within that period.
Places Victoria must not unreasonably withhold its consent to the Developersrequest oran extension ifit satisfied with the infomiation provided by the Developer underc ause13.18(d). IfPlaces Victoria consentsto the Developer's request for an extension, the 12month period ref^rred to in clause 13.18(b) will be extended by a fair and reasonableperiod (but in any event by not more than 6 months).
(1) Ifin accordancewith clause 13.18(d), Places Victoriaextendsthe 12 month periodreferred to in clause 13.18(a), then the extended period becomes the period in whicht eGreen StarAS Builtrating must be achieved forthe purpose of this clause 13.18.
3. ,9 Contractfor Developer's WorksThe Developer must provide to Places Victoria a copy of the signed contract between eDeveloper and the Contractorrelatingto all of the Developer s Works within 60 days o t etransfer of Parcel A.
(d)
(e)
(d)
(6)
14.
,4.1
Environment Initiative Contribution
Developer's contribution(a) The Developer must pay to Places Victoria an amount equivalentt0 0.5fo of the Tota
Development Costtowards Environment Initiatives by:no later than 12 months after the Date for Practical Completion; or(i)
Minter Ellison I Rat MEA ANS 30-8684923
15672795: 890440, _21ME_943323?9.5 (\v2003x)
RCD Development Agreement~ Civic Precinct Site I I page 47
(ii) ifPlaces Victoria extends the period in which the Developer must achieve a fivestar Green StarAS Built Rating forthe Developer's Projectin accordance withclause 13.18(d), then no later than the expiry of that extended period.
(b) Ifthe Developer complies with its obligations under clause 13.17(d) and clause 13.18(c),then Places Victoria agrees to waive the obligation of the Developer under clause 14.1(a),
14.2 Advisory committee for spending on Environment InitiativesPlaces Victoriamay form a committeeto advise how and when the amountsreceived underclause 14.1 are to be spent on Environment Initiatives in the relevant areas. Places Victoriawil!determine the life andthe constitution of the committee.
15. SitespecificControlsThe Developer must comply with the requirements in Schedule 12,
,6.
16.1
Timing
Progress and practical completionThe Developer must
(a) ensure that the Developer's Works are under Active Construction by the date set out forActive Construction in Schedule I; and
(b) carry outthe Developer's Worksto ensure that each Practical Completion occurs on orbefore the Date for Practical.
16.2 Extensions of time
(a) Subjectto clause 16.2(d)the Developer is entitled to an extension of time to aMi!OStoneDate if, and only ifthe Developer:
(i) gives written noticetothelndependentAssessor of the delay affecting its abilityto achieve the relevant Milestone Date orthe Date for Practical Completion notlater than 5 Business Days after the cause of the delay arises; and
specifies in writing the length of the delay in days claimed and providessupporting documentation reasonably required by the Independent Assessorwittiin14 days after the cessation of the cause of the delay; and
(iii) satisfies the Independent Assessorthatthe only cause of the delay is:
(A) a breach of this Deed by, or an act or omission of, Places Victoria; or
(B) aForceMa^jeureEvent.
(b) the IndependentAssessor must give the Developer prompt written notice of any decisionto gi. ant orrefiise to grant an extension of time, and must actreasonably in making anydecision.
(c) A delay by the Independent Assessorto grant an extension of time under this clause 16will not affect aMilestone Date, but nothing in this paragraph shall prejudice any riglit ofPlaces Victoriato damages.
(d) The Developer will only be entitled to an extension of time for a Milestone Date pursuantto this clause 16 when the number of days by which the Developer has been orwilIbedelayed in reaching a Milestone Date would but forthis paragraph, exceed 15 days.
RCD Development Agreement- Civic Prednd Site 11 page 48Minter Ellison I Ref: MEA ANS 30-6684923
15672795: 890440, _21ME_94,32379_s I\woo3*)
(ii)
,6.3 SunsetDates
(a) Despite any extension of time eranted under this Deed, including, withoutlimitation, anydelay pursuantto a Force ME!jeure Event, ifa Sunset Eventhas not occurred by therelevant Sunset Date Places Victoria may terminate this Deed at anytime by notice to theDeveloper, withoutprejudice to the rights or either party accruing priorto the tennination,and the provisions of clause 21.6 will apply.
(b) This Deed is terninated on the date the Developer receives oris deemed to have receivedthe notice under clause 16.3(a),
17. ProjectCo-ordination Group
17.1 ProjectCo-ordination GroupThe Developer must ensure that the Project Co-ordination Group is established at thecommencement of the Developer's Project.
17.2 Project Co-ordination GroupfunctionsThe functions of the ProjectCo-ordination Group include:
(a) reviewing the progi. ess of the Developer's Projectin relation to the Works Program and theperforrnance of the Developer; and
(b) reviewing the quality of work andanyremedialmeasuresrequired.
,7.3 ProjectCo-ordination Group meetings(a) The Project Co-ordination Group must meet at intervals nominated by Places Victoria
(acting reasonably).
(b) The Developer must:
meet all costs of its personnel and involvement in the Project Co-ordinationGroup;
(ii) convene andchairallmeetings of the ProjectCo-ordination Group; and
(iii) provideminutesofthe meetingstoPlacesVictoria.
17.4 Developer's reporting and related obligationsThe Developer must
(a) at leasttwo days prior to each meeting of the Project Co-ordination Group, provide awritten report to Places Victoria, responding to and which contains the inforrnationincluded in the Reporting Matters;
(b) provide to Places Victoriawithin a reasonable time of being requested to do so, anyinfonnation in connection with the Developer's Project which Places Victoria reasonablyrequires;
advise Places Victoria (in writing ifPlaces Victoriarequires) of suitable courses of actionin relation to matters raised in Project Co-ordination Group meetings; and
(d) establish and maintain records and registers as to matters raised in the Project Co-ordination Group meetings.
(c)
Minter Ellison I Ref: MEA ANS 30,6684923
15672795: 8904401_21ME 94532379_5 (W2003*)
RCD DevelopmenlAgreement -Civic Precinct Site I I page 49
18. Reporting obligationsofDeve!oper18.1 Reporting Matters
The Developer acknowledges that it has reporting obligationsto Places Victoria in relation to t efollowing matters:
(a) expenditoreondemolitionandremediation;
(b) marketing andpublicrelationissues;
(0) the status of any community contribution, including details of the number of localbusiness and personnel employed ortrained as part of the Developers Project;
(d) community consultation(asrequired);
(e) progressofsatisfyingconditions precedentspecified inclause5.2;(f) Approvalsrequired under this Deed andfortheDevelopers Project;(g) amountspayableunderthisDeed;
(h) issues regarding LandtenureandLand status;
(i) progressofDeveloper's Projectto achieve Practical Completion andoccupationoft eLand;
dates of proposed occupation of the Land and the Developers Project;environmental sustainable development certification and Approvals;
changes to consultants and staffemployed;
expenditure on infrastructure and public space;current claims forextensions of time, including details of dates submitted, dates approveand any other relevant details;
(0) strategies implemented orproposedtoovercome problems, including corrective actionstatements for catching up losttime or avoiding potential delays;
liaisonwith anyGovemmentAgency; and
any other matter required by Places Victoria upon receipt of written notice from P acesVictoria.
O)
(k)
(1)
(in)
(n)
(P)
(q)
18.2 Maintenance of Reports
The Developer must establish and maintain thorough, clear and accurate Reports, accounts anrecords for each Reporting Matter which:
detail allrelevant or pertinent figures and inforrnation in relation to the Reporting atIer(a)including any information reasonably requested by Places Victoria in order to verify,clarify or substantiate the quantum of any payment, the scope of any riglit or obligations,the accuracy of any estimate, representation or notice of the Developer, or any or er an ,matter orthing, under this Deed; and
keep in an organised fashion all documents, papers, accounts, plans, diagrams and or orwritten, printed and visual material together with any other thing on which infonnation isstored and from which written, printed or visual material can be produced, relevantto t eReporting Matter.
(b)
Minter Ellison I Rat MEA ANS 30^684923
t5672795: 890,401_21ME_94532379_s(W2003^}
RCD Development Agreement- Civic PrecindSite I I page 50
8.3 Reporting obligationFollowing reasonable notice from Places Victoria, the Developer must:
(a) providePlacesVictoria. with copies of anyReports;
(b) penmitPlaces Victoriaand its representatives to have accessto the Reports;
(c) certify to Places Victoria that any Report is accurate, complete and not misleading;
(d) pennit Places Victoria, its representatives or any appropriate third party to audit anyReport provided such third party agrees to keep allinfonnation confidential; and
(e) provide any funlierinfomiation or material reasonably requested by Places Victoria,
forthe purpose of verifying, clarifying or substantiating the quantum of any payment, the scope ofany right or obligation, the accuracy of any estimate, representation or notice of the Developer orany other fact, matter orthing, under this Deed.
19.
,9. ,
Insurance and indemnityRisk
(a) The Developer bearsthe risk of loss or damage to the Land andthe Developer's Projectfrom the date of this Deed,
(b) The Developer must at its own cost promptly make good loss or damage (exceptloss ordamage solely caused by any negligent act or omission of Places Victoria, its employees,consultants or agents)to the Land or any improvements on the Land while the Developeris responsible for its care.
19.2 Obligation to insure the Developer's WorksThe Developer must procure the Contractorto:
(a) effectinsurance to coverthe Developer's Works, whether completed orin progress:againstloss, destruction or damage forthe fullreinstatement and replacement costs; and
(b) notethe interest of Places Victoriafor its rights and interests.
19.3 Obligation to insure for public liabilityThe Developer must effectinsurance (noting the rights and interests of Places Victoria) with alimit of at leastthe amountset out in Schedule 9 for any one occurrence, to cover:
(a) personal injury to, orthe death of any person (excluding aperson who at the time of theinjury or death is defined as a worker of the Developer under any statute relating toworkers' or accident compensation insurance); and
(b) loss, destruction or damage to any property (other than the Developer's Works),
which arises out of or is caused by the execution of the Developer's Works.
,9.4 Obligation to insure for workers' compensationThe Developer must effectworkers' compensation insurance covering:
(a) any liability, loss, claim or proceeding whatsoever, whether arising by virtue of any statuterelating to workers' compensation insurance, accident compensation legislation,employer's liability, or at common law, by any person employed by the Developer forthepurpose of executing the Developer's Works; and
(b) unlessotherwiselimitedbystatute:Mintst Ellison I Ref: MEA ANS 30-6684923
15672795: 890440, _21ME_9,532379_s IW2003")
RCD Development Agreemeni~Civic Precinct Site I I page 51
(i) the insurancewillinclude acondition stating cover extendsto indemnify PlacesVictoria as principal; and
(ii) the liability provided by this insurance shall be for an unlimited amount.
19.5 Obligation to insure motor vehicle liabilitiesThe Developer must effect motorvehicle liability insurence covering liability for personal injuryto, orthe death of, any person, and fortoss or damage to property, caused by the Developer'sownership and/or any motor vehicle in connection with the Developers Works. Unless otherwiselimited by statute, the liability provided by this insurance shall at least be the amount set out inSchedule 9 for any one occurrence. This insurance must also extend to include a conditionstating cover extends to indemnify Places Victoria as principal.
19.6 Obligation to insure against professional negligence(a) The Developer must ensurethe Contractorand each Key Consultanteffects and maintains
prof;^ssionalindemnity insurance with a limit of indemnity at leastthe amount set out inSchedule 9 indemnifying the Contractor and each Key Consultantfbr a breach ofprofessional duty, whether owed in contract or otherwise, by reason of any act, errororomission by the Contractor or Key Consultant ortheir employees, agents or consultantswhich results from the discharge of professional responsibilities assumed forthe projectunder this Deed.
(b) The insurance shall provide Governom the date the Contractor and Key Consultants firstcommenced their prof;=ssional activities forthe project, and must include cover for breachof trade practices and/orfair trading act, loss of documents and libeland slander, andprovide one automatic reinstatement of the limit of indemnity.
19.7 Periods of insurance
The insurances referred to in clauses 19.2, 19.3, 19.4, 19.5 and 19.6 must be:
(a) in force at the date of occupation orpossession of the Land by the Developer; andmaintained effective:(b)
(i) mrespect of professional indemnity, untilthreeyears after Practical Completion;and
in respect of damage to the Developer's Works' public liability, workers'compensation and motor vehicle liability, until Practical Completion, andthereafter for a period of notlessthan six monthsto complement the obligationsassumed by the Developer under clause 13.5.
19.8 Insurersand policies(a) The Developer must effectthe insurances required under clauses 19.2, 19.3 and 19.4:
(i) with insurers domiciled orhaving substantial presence in Australiaand listed onthe Australian Prudentia! Regulating Authority register of authorised insurers andapproved by Places Victoria;
(ii) maintain those insurances in fullforce and effect forthe relevant periods describedin clause 19.7;
(in) deposit with Places Victoria, from the effective date of this Deed, certificatesevidencing the currency of the required insurances, and certified copies of thepolicy documents notlaterthan 60 daysthereafter; and
Minter Ellison I Ref MEA ANS 30-6684923
t5672795: 8904401_21ME_94532379_5 N2O0Sx)
RCD Development Agreement -Civic Precinct Site I I page 52
for any insurance subject to renewal or extensionthrougl'IOUtthe tenn of this Deed,deposit with Places Victoria a certificate of currency evidencing the currency ofthe renewal or extension thereof, notlaterthan ten days after.
The Developer must ensure that each policy of insurance effected under clauses I . , .and 19.4 contains a provision requiring the insurer to inforrn Places Victoria in writing ifanotice of cancellation in respect of the policy has been given to the Developer.
The Developer must not materialIy alter any insurance policy throughoutthe torrn o t isDeed, unlessthe prior approval to do so has been obtained from Places Victoria.
(d) Places Victoria reserves the rightto request the Developer to effect additional insurance,from timeto timethroughouttheterm of this Deed where areasonable requirement to oso can be demonstrated.
19.9 Cross liabilityWhere insurance is effected in joint names, the Developer must ensure the policy provides(a)that all conditions, agreements and endorsements (with the exception of limits of liabilityorindemnity) operate asifthere was a separate policy of insurance, covering each of theinsured parties under the policy.
(b) The Developer must ensurethateachpolicyprovidesthat:
(i) the insurer waives allrights, remedies orreliefto which it might become entitledby way of subrogation against any of the parties comprising the insured partiesunder the relevant policy; and
(ii) failure by any insured party under the relevant policy to observe and fillfiltheterms of the policy will not prejudice the insurance in regard to any other insureparty under the relevant policy.
,9. ,0 Developer indemnifies against damage, etcThe Developer must indemnify and keep indemnified Places Victoria against any damage,expense, loss or liability
for any injury, loss or damage to any property (realor personal and including existing(a)property on whichthe Developer's Works are being carried out); or
(b) arising under any statute or at common law for personal injury to or death of any person,which arises out of any negligence or default of the Developer in carrying outits ob igationsunder this Deed and which is not caused or contributed to by Places Victoria or its Ginp oyees,consultants or agents.
(iv)
(b)
(0)
20.
20.1
Practical completion
Notice of practical completionIfthe Developer considers that the Developer's Works have reached Practical Coinp etion, t eDeveloper must by the Date for Practical Completion deliver to Places Victoria a writtenstatement by the Independent Assessor under whichthe Independent Assessorcertifiesto t eDeveloper and Places Victoria that the Developer's Works have reached Practical Coinp etion inaccordance with this Deed.
Minter Eijison I Ref: MEA ANS 30.66B4923
t5672795: 890440, _21ME_94532379_spy2003x)
RCD Development Agreement- Civic Precinctsile 11 page 53
20.2 Practical Completion if Places Victoria does riot objectIfwithin 10 Business Days of receiving anotice in accordance with clause 21.1 Places Victoriadoes not deliver a written notice to the Developer and/orthe Independent Assessorthatitdisagrees with the certification of the Independent Assessor, the Developers Works are deeme tohave reached Practical Completion.
20.3 Places Victoria may object
(a) Ifwithin 10 Business Days of receiving a notice in accordance with clause 21.1PlacesVictoria delivers a written noticeto the Developer andorthe Independent Assessorthatitdisagrees with the certification of the Independent Assessor, clauses 20.4(I)to 20.4(i) willapply.
Ifthe Reviewer agrees with the certification of the Independent Assessor, the DevelopersWorks are deemed to have reached Practical Completion on the datethatis 10 BusinessDays after Places Victoriareceives anotice in accordance with clause 21.1.
(0) Ifthe Reviewer disagrees with the certification of the IndependentAssessor, theDeveloper's Works are deemed to have reached Practical Completion on the datedeterrnined in accordance with clause 31.
20.4 IndependentAssessorDeedThe Developer must itself, and must procure the Independent Assessorto, execute the(a)Independent AssessorDeed under which the Independent Assessor will be appointed bythe Developer, on or before the Tmnsfer Date and must perfomiand observe allobligations imposed upon it by the IndependentAssessor Deed.
The Independent Assessorwillbe selected by Places Victoria from a list of threeconsultarits with appropriate professional experience and expertise to filmlthe nctionsof the Independent Assessor, proposed by the Developer against whom Places Victoriamakes no reasonable objection.
IfPlaces Victoria makes a reasonable objection to a consultant proposed by theDeveloper, the Developer will propose an alternative consultant. This procedure must erepeated until Places Victoriahas three consultants proposed forthe role of theIndependent Assessor, against which it has no reasonable objection, from which to selectthe Independent Assessor.
(d) Ifthe position of IndependentAssessorrequired becomes vacant at any time in relation toany part of the Land, clauses 20.4(a), 20.4(b) and 20.4(c) again apply.
(e) The Independent Assessor must act as an independent certifier to Places Victoria and theDeveloper forthe purposes of any independent supervision or certification o coinp iancewith the requirements of this Deed required by any party to this Deed.Ifwithin seven days of receiving notice of any finding, certification, notice ordetermination by the Independent Assessor pursuantto this Deed (in this clause,'Decision'), Places Victoria delivers a written notice to the Developer that it disagrees withthe Decision and the reasons forthat disagi. eement:
(i) Places Victoria may at its cost appoint an independentperson (Reviewer)toreviewthe Decision; and
subjectto clause 20.3 ifthe Reviewer disagrees with the Decision of theIndependent Assessor, Places Victoriamay, provided it does so within 30 daysafter Places Victoria receives notice of any Decision, notify the Developer of adispute in accordance with clause 31.
RCD Development Agreement- Civic Prednct Site I I page 54Mintsr Ellison I Ref: MEA ANS 30.6684923
15672795: 8904401_21ME 94532379_s(W2003")
(b)
(b)
(0)
(t)
(ii)
Ifa Reviewer is appointed pursuant to clause 20.4(I), the Developer must:
(i) allowthe Reviewer reasonable accesstottie Developer's Works and allareaswhere the Developer's Works are being or should be constructed or fabricated tothe extentreasonably required forthe purpose of reviewing the Decision;
(ii) allow and procure that the Contractor allowsthe Reviewer reasonable accesstoany quality assurance programme and any and allrecords established andmaintained by the Developer and the Contractorfbrthe Developer's Worksto theextent reasonably required forthe purpose of reviewing the Decision; and
(in) allow, and procure that the Contractor allows, the Reviewer reasonable access toany reports, documents or other form of infonnation that may otherwisereasonably assist the Reviewer in reviewing the Decision.
(h) Places Victoria must instructthe Reviewer to review the Decision on the same basis astheIndependent Assessorwasrequiredto make the Decision.
(i) The Developer is deemed notto be in breach of any obligation the subjectofa disputenotified in accordance with clause 20.4(f), and Places Victoria is not entitled totenninate,cancel, rescind orrepudiate this Deed because of an alleged breach or defaultthe subjectof such a dispute, pending determination of that dispute in favour of Places Victoria inaccordance with clause 31.
Ifthe subject of a dispute notified in accordance with clause 20.4(OGOncems whether ornotthe Developer has achieved a Milestone Date and the Decision of the IndependentAssessoris upheld following determination of a dispute in accordance with clause 31, theDeveloper is taken to have achieved that Milestone Date at the time specified in or by theDecision of the Independent Assessor.
20.5 Occupation(a) The Developer must not apply for any necessary occupancy pennits untilPractical
Completion is achieved in accordance with clause 20.
(b) The Developer covenants that no part of the Land will be occupied or available for humanuse untilthe Developer's Project has reached Practical Completion in accordance with thisDeed and the Land will not be occupied untilthe necessary occupancy permit has beenissued.
The Developer must, within 30 days after the issue of any occupancy pennit, deliver toPlaces Victoria a copy of such occupancy pennit.
20.6 Documentation
Within 30 days after Practical Completion, the Developer must deliver to Places Victoria alloperating manuals, warranties, guarantees, as built drawings and other documents and infonnationwhich, in Places Victoria's reasonable opinion, are necessary forthe use and occupation of theLand.
21.
21. ,
Default Event
Occurrence of Default Event
Ifa Default Event occurs, Places Victoria may give the Developer a DefaultNotice,
Minter Ellison I Rat MEA ANS 30-6684923
15672795: 8904401_21ME_9453zs79_s(W2003")
RCD Development Agreement- Civic Precinct Site I I page 55
21.2 Cure Period
(a) Subjectto clause 21.2(b), upon receipt of a Default Notice the Developer must cure thatDefault Eventwithin the Cure Period.
(b) Despite any other provision in this Deed, the parties acknowledge and agreethat no CurePeriod applies in respect of aFinancialDefault. Ifthe Developer has notrectifiedtheFinancial Default within 10 Business Days of receipt of aDefb. ultNotice in respect of thatFinancial Default, Places Victoria may immediately exercise its rights underclauses 21.4(b) or 21.5(b) asthouglithe Financial Default was capable of being cured butwas not cured to Places Victoria's satisf^ction within three Business Days of receipt of theDefault Notice.
21.3 Extension to Cure Period
(a) Ifthe Developer requires an extension to the Cure Period it must, as soon as possible (butno later than the expiration of the current Cure Period), giveto Places Victoria:
(j) aCurePlan;and
(ii) evidence that the Developer has diligently pursued and is continuing to diligentlypursue a cure butthat the Default Event cannot, with reasonable diligence, becured within the current Cure Period.
Places Victoria must notunreasonably refuse to grant an extension of the Cure Periodwherethe Developer has satisfied the requirements of this clause 21.3. The Developermay, unless otherwise agreed by Places Victoria, only apply once for an extension of theCure Period in respect of the DefaultEvent specified in the DefaultNotice. IfPlacesVictoria grants an extension of the Cure Period, the Developer must comply with the CurePlan.
21.4 Remedies before Practical Completion
(a) IfaDefault Event occurs before Practical Completion that is not capable of being cured,the Developer must:
(i) within the Cure Period, comply with any reasonable requirements of PlacesVictoria; and
(ii) pay Compensation to Places Victoriato adequately redressthe Default Eventwithin five Business Days of receipt of the DeftiultNotice.
(b) IfaDefaultEvent has occurred before Practical Completion andthe Defaultis:
(i) capable of being cured and is not cured to Places Victoria's satisfaction (whichmay include the payment of Compensation) within the Cure Period; or
(ii) not capable of being cured and the Developer failsto comply with clause 21.4(a),
Places Victoria may (withoutprejudice to any other rights under this Deed):
(in) haverecourse to any Security including the Perlonnance Security;
(iv) in respect of aMaterialDefault only, terminate this Deed; and
(v) exercise orenforceitsrightsundercla"se21.6.
21.5 Remedies after Practical Completion
(a) IfaDefault Event occurs after Practical Completion that is not capable of being cured, theDeveloper must:
Minter Ellison I Ref: MEA ANS 30-6684923
15672795: 890440, _21ME_94532379_S (W2003x)
RCD Development Agreement- Civic Precinct Site I I page 56
(i) within the CurePeriod, comply with anyreasonable requirementsofPlacesVictoria; and
(ii) pay Compensation to Places Victoria to adequately redressthe Default Eventwithin five Business Days of receipt of the DefaultNotice.
Ifa Default Event has occurred after Practical Completion and the Defaultis:
(i) capable of being cured and is not cured to Places Victoria's satisf;I. ction (whichmay include the payment of Compensation) within the Cure Period; or
(ii) not capable of being cured and the Developer failsto comply with clause 21.5(a),
Places Victoria may (withoutpr^judice to any other rights under this Deed):
(in) haverecoursetoanySecurity;
(iv) suetheDeveloperforCompensation; and
(v) seekallotheravailable legal andequitable remedies.
Rights and liabilities of the parties following termination by Places Victoria(a) IfPlaces Victoria tenninates this Deed in accordance with clause 21.4 or clause 16.3
Places Victoria may:
(1) exerciseorenforce its riglitsunderortenninate anyProjectDocument.Compensation will not be payable to the Developer;
(ii) requirethe Developer to ceaseDeveloper'sWorksimmediately;
(in) have recourse to any Security to recover any loss, cost, damage or liabilityincurred orsuffered by Places Victoria relating to the occurrence of the DefaultEvent;
(iv) suetheDeveloperforCompensation;
(v) exercisealllegalandequitablerights available toplacesVictoria;
(vi) refuse to complete any Land Sale Contract or enter into any further Land SaleContract for any unreleased Stage;
requirethe Developer to:
(A) novate or assign to Places Victoria or its nominee without payment anyagreement or the benefit of any agreement:
(1) in relation to the development, purchase, sale, use, occupation orotherwise of any part of the Developable Area which has notachieved Practical Completion; and
(11) forthe supply of materials or goods or forthe execution of anyDeveloper's Works; and
(B) deliver all documentation necessary to enable Places Victoriato bring theDeveloper's Worksto Practical Completion; and
The Developer, for the purposes of any transf;^r or assignment under this clause 21.6,irrevocably appoints Places Victoria as its attorney with full power and authority toexecute that transfer or assignment on behalfofthe Developer.
21.6
Minler Ellison I Ref: MEA ANS 30-668,923
t5672795: 8904401,21ME_945323?9_5 (W2003, )
RCD Development Agreement -Civic Precinctsite 11 page 57
(c) Ifthis Deed is terminated in accordance with clause 21.4, the rights and liabilities of theparties are the same as at common law ifthe Developer had wrongfully repudiated thisDeed and Places Victoria had elected to treatthis Deed as at an end and recover damages.
(d) Allcosts, loss, damage, liability or otherdetriment suffered or incurred by Places Victoriain or in relation to causing the Developer's Worksto reach Practical Completion is a debtdue and payable to Places Victoriawhich may be deducted from the proceeds of anySecurity,
Without affecting the generality of clause 21.8, the Developer acknowledges and agreesthat, exceptto the extentthatthe Default Eventwas caused or contributed to by PlacesVictoria, ora SunsetEvent did not occur by a Sunset Date as a result of any act oromission caused orcontributed to by Places Victoria, it may make no claim for any Lossor damage it may suffer in relation to atermination of this Deed in accordance withclause 21.4, including, withoutlimitation, Loss ordamage througli:
(i) the Developer being unable to complete any development of the Land in amannercontemplated by the Developer;
(ii) affecting the development of any part of the Land or adjacentland by theDeveloper;
(in) decreasing the value of the Land or other Land in which the Developer has aninterest or may become entitled to an interest;
(iv) contributing to lossofreputation;
(v) lossofprofitsorfutureearnings;
(vi) costs spent on items incorporated into the development which calmot be removedfrom the Land;
(vii) Places Victoria retaining ownership of the Land, the value of which may begreater than as at the Date of Sale under the relevant Land Sale Contract(whetheror notthis increase in value is attributable to actions of the Developer); and
(viii) any oneormore of these.
21.7 Financial Default
(a) Ifthe Developer commits a Financial Default, it must pay to Places Victoria interest onany amountwhich is the subject of a Financial Defaultuntilthat amountis paid to PlacesVictoria,
Interest will accrue daily at the Interest Rate for each day from the date on which theamount became due and payable untilsuch defaultis cured and be payable on the datepayment of the amountis made.
21.8 Waiver
Ifthis Deed between Places Victoria and the Developer is terniinated for any reason, theDeveloper waives any rights it may have to pursue a claim of restitution of any kind, includingwithoutlimitation, a claim of unjust enrichment.
22.
22.1
Intellectual Property
Developer's WarrantyThe Developer warrantsthat:
MinterEllison I Ref: MEA ANS 30^684923
15672795: 890440, _21ME_94532379_s (w2003, )
RCD Development Agreement -Civic Precinct Site 11 page 58
(a) the Developer is entitled to use the Intellectual Property forthe completion of theDeveloper's Project and the pertbnnance by the Developer of its obligations under thisDeed;
(b) the completion of the Developer's Project, the pertonnance by the Developer of itsobligations under this Deed orthe enjoyment by Places Victoria of the rights or benefits ithas under this Deed or otherwise at Law will notinvolve the breach of any rights of anythird party; and
(c) it is able and entitled to grantthe licence described in clause 22.3,
22.2 Developer'SIndemnityThe Developer indemnifies and will keep indemnified Places Victoria, its officers, employees,agents and contractors from and against all claims, liability, Loss, damage, costs and expenses(including legal costs on a solicitor and own client basis) arising out of any claim that theintellectual Property or any use thereofby or on behalfofPlaces Victoria infringes the rights of athird party.
22.3 GrantofLicence
In consideration of Places Victoria entering into this Deed, the Developer(to the extent it isable) grants to Places Victoria a perpetual, irrevocable, non-exclusive and royalty free licence touse, reproduce, modify and adaptthe Intellectual Property forthe Developer's Works.
22.4 Further action required by the Developer
The Developer:
(a) must, at the request of Places Victoria, execute any document reasonably required byPlaces Victoria forthe purpose of perfecting ormore fully giving effectto the licencedescribed in clause 22.3;
(b) must do allsuch further acts, including securing such additional rights as may benecessary to give effectto the granting of the licence described in clause 22.3; and
(0) must deliver to Places Victoria a copy of allEndorsedDevelopment Plans, DesignDocumentation and Approved Design Documentation, and any enhancements ormodifications thereto as it is approved by Places Victoria under clause 9(d).
22.5 Places Victoria's rights on terminationThe licence described in clause 22.3 and Places Victoria's rights under this clause 22 will not beaffected by any matter orthing, including withoutlimitation the termination of this Deed or anydispute under this Deed.
23. Development costsThe Developer is responsible for all costs in relation to the Developer's Project including all costsof subdivision and connectionsto and from Developer'sinfrastructure except as otherwiseexpressly provided for in this Deed.
24. Legal costs(a) The Developer andPlaces Victoriamust beartheir owl costs in preparing and negotiating
this Deed and any other Project Document.
(b) The Developer must pay any stamp duty assessed on this Deed orany Project Document.RCD Development Agreement - Civic Precinct Site I I page 59Minter Elmson I Ref: MEA ANS 30,6684923
15672795: 890440, _21ME_945323,9_5 IW2003x)
(c) Where the Developer requires any Project Document to be wholly or partiallyrestructured, the Developer must pay Places Victoria's reasonable costs of suchrestructuring.
The Developer must pay to Places Victoria promptly on demand the amount of alllosses,liabilities, costs and expenses (including, without limitation, legal expenses on a fullindemnity basis) in connection with:
(i) the administration, enforcement of orreasonableattemptsto enforce orpreservation of orreasonable attemptsto preserve any rights under this Deed orany other Project Document because of a Default Event; and
a Default Event.
(d)
25.
(ii)
IndemnityThe Developer indemnifies each of Places Victoria and the State against, and must pay each ofPlaces Victoria and the State on demand the amount of alllosses, liabilities, costs and expenses
(including, without limitation, legal expenses on a fullindemnitybasis) in connection with:
(a) the occurrence, cureand attempted cure of anyDefaultEvent;
(b) the administration, enforcement orattemptedenforcementorpreservationorattemptedpreservation of any rights under this Deed or any other Project Document;
(c) any amendment to, or any consent, approval, waiver, release or discharge of or under, thisDeed or any other Project Document; and
(d) any claim whatsoever under the Native Titlertci1993 or a native title law of the State inrelation to the Land or the Developer's Project.
26. Outdooradvertising by the Developer(a) Exceptfbrstandard signage of the Contractor and any notices required by the Developer
or a Government Agency, the Developer must not(and must not allow any other personto) enter into agreements with third parties under which that third party is able to use anypart of the Land forthe purpose of advertising withoutthe consent of Places Victoria.
(b) The Developer must obtain allPlanning Approvals for any advertising in accordance withclause 26(a).
27. Community objectionsThe Developer must acceptallrisks and costs of dealing with community objections to theDeveloper's Project. The Developer may not claim any Compensation from Places Victoria orState as a result of any community objections and the Developer will riot be entitled to anextension of the Date for Practical Completion,
28. Developerscontinuingobligations
28.1 Owners' corporation voting rightsThe Developer must exercise any of its owners' corporation voting entitlements in relation to theDeveloper's Projectin a manner which is consistent with the Objectives.
Minter Ellison I Rat MEA ANS 30-6684923
15672795: 8904401_21ME 9,532379_s (W2003")
RCD Development Agreement- Civic Prednct Site I I page 60
28.2 Entering into a Section 473 AgreementThe Developer must enter into a Section 173 Agreement as and when required by any Ten3rralauthority under the Planning Scheme.
29. Restriofion on assignmentIchange in control
29.1 NoassignmentThe Developer must not assigiortransfer allot any part of its rights or obligations under thisDeed or any other Project Document withoutthe priorwritten consent of Places Victoria. PlacesVictoria will not unreasonably refuse consent to an assignment or transfer to an entity whollyowned by the Developer and where such entity enters into an agreement with Places Victoriawhereby it agrees to abide by allofthe obligations of the Developer under this Deed and eachProject Document(as applicable).
29.2 Nosaleorlease
The Developer must not grant a development lease over allotany part of the Land withoutthepriorwritten consent of Places Victoria, which consent will not be unreasonably withheld wherethe original Developer covenants with Places Victoriato continue to be responsible to completethe Developer's Project in accordance with this Deed.
29.3 Sub-contracting(a) The Developer must not appoint the Contractor withoutthe prior approval of Places
Victoria which must not be unreasonably withheld where the Contractor is a suitablyqualified construction contractor in Victoria.
(b) The Developer is notrelieved of any of its obligations under this Deed as a result of theappointment of the Contractor,
29.4 Negative pledgeThe Developer must not priorto Practical Completion create or pennitto exist, and must ensurethat none of its related corporations create orpenmitto exist, any security interest orlien over anyof the Developer's property, other than a Pennitted Security Interest.
30.
30.1 GSTexclusiveconsideration
To the extentthat any supply to be made by a party (Supplier)to the other party (Recipient)under or in connection with this Deed is a taxable supply, the parties acknowledge and agee that:
(a) anyamountexpressedaspayable, and
(b) anything elsetobeprovided,
by the Recipientunderthis Deed forthattaxable supply has been datennined and agreed upon onthe basis that it is the value of that taxable supply (GST Exclusive Consideration), and nottheprice forthat supply.
30.2 GSTFactor
The GST Exclusive Consideration for each taxable supply made under orin connection with thisDeed will be increased by an amount detemiined by multiplying the GST Exclusive Considerationby the GST Rate (expressed as a decimal) current at the date of making the taxable supply (GSTFactor), so that after deducting the GST the Supplier retainsthe GST Exclusive Consideration.
GST
Mintsr EUison I Rat MEA ANS 30-6684923
15672795: 8904401_21ME_94532379_s or200Sx)
RCD Development Agreement -Civic Precinctsite I I page 61
The sum of the GST Exclusive Consideration and the GST Factorisreferred to as GST InclusiveConsideration.
30.3 OtherGST related issues
(a) Where the Supplier is entitled to claim an inputtax credit which relates directly to a costrequired to be reimbursed orindemnified under this Deed, the amountto be reimbursed orindemnified must exclude the amount which the Supplier is entitled to claim as an inputtax credit. Ifapplicable, the amount to be reimbursed or indoinnified is then increased bythe amount of the GST Factor in accordance with clause 30.2.
(b) Ifthe consideration for a supply under this Deed is calculated by ref^rence to theconsideration of othersupplies, in performing that calculation, the consideration forthoseothersupplies excludes any GST Factor component of the consideration payable on thoseother supplies.
30.4 Timing for payment of GSTSubjectto clause 30.6, a Recipient:
(a) to the extentthatthe GST Exclusive Consideration is an amount payable under this Deedby the Recipientto the Supplier, must pay the GST Inclusive Consideration without anydeduction orset-off at the time and in the manner(and in substitution for) each GSTExclusive Consideration otherwise payable; and
to the extentthatthe consideration for a supply is not expressed as an amount of moneymust:
(i) undertake, observe and perlomithe act, matter orthingbeingthe consideration forthe supply; and
(ii) paythe GST Factor determined by reference to clause 30.2 to the Supplier withoutany deduction orset-off at the time that the Recipientis obliged to undertake,observe and perform the act, matter orthing being the consideration forthe supply.
30.5 ContraSuppliesTo the extentthat consideration for a supply under this Deed includes nori-monetaryconsideration, the parties agi. ee to act in good finth to agree on the GST exclusive market value ofthe non-monetary consideration provided forthe supply. In such circumstances, notwithstandingany other provision of this clause 30.5, the parties agree to eXchange tax invoices fortheirrespective supplies and to set off any amounts payable on account ofGST so that only the netamount ofGST is payable to the appropriate party,
30.6 Taxinvoice
The Supplier must issue amx invoice to the Recipientfor each taxable supply made to theSupplier under this Deed before the Supplier will be entitled to payment of the OST InclusiveConsideration under clause30.4(a) orthe OST Factor under clause 30.4(b)(as appropriate).
30.7 Adjustment eventsIfan adjustment event occurs in relation to amxable supply under this Deed:
(a) the Supplier must provide an adjustment note to the Recipient within 7 days of becomingaware of the adjustment; and
any payment necessary to give effectto the adjustment must be made within 7 days afterthe date of receipt of the adjustment note.
Minter Ellison I Rat: MEA ANS 30,6684923
15672795: 890440, _21ME_94532379_s (w2003, )
RCD Development Agreement -Civic Precinct Site 11 page 62
30.8 Further definitions relating to GSTIn this clause:
(a) 'CST' hasthe meaning given to that expression in the GST Act unless, under or in relationto the National rayono, I Reform (Consequenti"!Provisions, I Act2000 (Vic)(NTR Act) ora direction given under section 6 of theNTRAct, the Beneficiary is obliged to makevoluntary or notional payments, in which case:
(i) GSTmeans thosevoluntaryornotionalpayments, and
(ii) expressions containing the term 'GST' have acorrespondingmeaning;
subjectto paragraph (a),
(i) words or expressions used in this clause which are defined in the GST Act havethe same meaning in this clause; and
(ii) value, price, supply taxable supply, OST, OSTlnclusive marketvalue, inputcredit, inputtaxed supply, adjustment note, margin scheme defined in GST Lawhavethe meanings givento those expressions in GST Law; and
a reference to consideration being paid includes (in addition to the payment of money)theperformance of the act, matter orthing being the consideration forthe supply.
30.9 Dispute resolutionIfthe Recipient disputes the Supplier's application of the provisions in this clause 30, it mustnotify the Supplier under clause 31.1 so asto initiate the dispute resolution procedures underclause 31, Despite any dispute concerning the provisions of this clause 30 the Recipient must paythe GST Exclusive Consideration for anytaxable supply made by the Supplier under this Deed inaccordance with the other provisions of this Deed.
31. Dispute resolution
3, ., Dispute NoticeIfany Dispute arises between Places Victoria and the Developer, then either party may give to theother a Dispute Notice.
31.2 NegotiationThe Authorised Officers of both parties must meetwithin 15 Business Days of the DisputeNotice and endeavourto resolve the Dispute in good faith.
3, .3 Timeforresolution
(a) Ifa settlement meeting does nottake place betweenthe Authorised Officers by the timerequired or, after I month of the settlement meeting the Dispute remains unresolved, thechiefexecutive officers of both parties must meet within a further 10 Business Days afterthat date and endeavourto resolve the Dispute in good faith,
(b) Ifclause 31.3(a) applies and a settlement meeting between the chiefexecutive officers ofboth parties does nottake place by the time required or, after I month of the settlementmeeting between the chiefexecutive officers of both parties the Dispute remainsunresolved, either party may commence litigation proceedings.
(c) Neither Party may commence or maintain any proceedings in relation to any Dispute untilit has complied with this clause 31 (exceptfbr proceedings seeking injuristive ordeclaratory relief).
Minter Ellison I Rat MEA ANS 30,6684923
15672795: 8904401_21ME_9,3323,9_Spy2003")
RCD Development Agreement- Civic Precind Site I I page 63
31.4 Developer to continue Developer's ProjectNotwithstanding the existence of a Dispute, the Developer must continue the Developer's Projectin accordance with this Deed.
32. Approvals to be copied to Places Victoria(a) Ifthe Developer makes an application in relation to the Developer's Project orthe Land to
any Government Agency (including any application for an Approval)the Developer mustsimultaneously make an identical application to Places Victoria.
(b) The Developer is notrelieved of any obligation under the Project Documents as a result ofany approval or monitoring by Places Victoria. The Developer may not claim againstPlaces Victoria for any actual or perceived loss or damage relating to Places Victoria'sexercise of its right to approve and monitor.
Places Victoria will not be liable, in anymanner whatsoever, for any approval ormonitoring which Places Victoria is required to give orperfonn in connection with theDeveloper's Project.
33. Obligations of Places Victoria33.1 General
Places Victoria must provide:
(a) (Information) allinfbnnation reasonably necessary to assist the Developer in thepertonnance of its obligations under this Deed;
(b) (Directions) directions or instructionsto the Developer in atjinely manner as may bereasonably required for the Practical Completion of the Developer's Project; and
(0) (Further Information) any further infomiation required by the Developer, wheretheDeveloper reasonably considersthat any infonnation, instruction or direction isinadequate. The Developer must provide fundetails of the manner and extent to whichthe inforrnation, instruction or direction is inadequate and must ensure it does not causedelay to the Developer's Project.
(Guidelines) the following documents on or before the date of this Deed:
(i) Construction Management Guidelines;
(ii) Hoarding Guidelines;
(in) Parking RateGuidelines;
(iv) ESDGuidelines;
(v) RCDUrbanMasterPlari;and
(vi) any other documents, plans, reports or guidelines with which the Developer isrequired to comply in procuring the Developer's Project in accordance with thisDeed.
Despite any other provision of this Deed, the Developer is notrequired to comply with therequirements in any document, plan, report or guideline in respect of which PlacesVictoria has not provided a copy to the Developer on or before the date of this Deed.
Mintsr Ellison I Ref: MEA ANS 30,668,923
t5672795: 8904401_21ME_94532379_S (W2003*)
RCD Development Agreement - CMC Precinct Site I I page 64
34. Consents and Approvals by Places Victoria(a) Unless otherwise specified in this Deed, Places Victoria's consent or approval may be:
(i) givenorwithheld in Places Victoria'ssolediscretion; and
(ii) givenconditionallyorunconditionally.
(b) No approval may be given which hasthe effectoflessening the obligations of theDeveloper under this Deed.
35. Notices
35.1 Method of giving Notices(a) A Notice must be in writing, (except in the case of an email) signed by or on behalfofthe
person giving it, addressed to the person to whom it is to be given and:
") delivered;
(ii) sentbypre-paidmail;
"") emailed;or
(iv) sentbyfacsimile,
to that person's address.
(b) Despite clause 35.1(a), Places Victoriamay require the Developer to give Places Victoriaa signed paper copy of the email, in which eventthe emailwillbe taken to have beenreceived when the paper copy is received by Places Victoria.
35.2 Time of receipt of noticesA Notice given to a person is treated as having been given and received:
(a) ifdelivered, on the day of delivery ifdelivered before 4.00 p. in. on a Business Day,otherwise on the nextBusiness Day;
(b) ifsent by pre-paid mail, on the day of actual delivery ifde!ivered before 4.00 p. in. on aBusiness Day, otherwise on the nextBusiness Day;
(0) ifemailed, when a delivery confinnation report is received by the sender, which recordsthe time that the emailwas delivered to the addressee's current emailaddress, providedthat the sender does notreceive a delivery failure notification indicating that the email hasnot been delivered to the addressee; and
(d) ifsent by facsimile and the transmission report states that it was sent in fulland withouterror, on the day of transmission ifthatreport states that the transmission was completedbefore 4.00 p. in. on a Business Day, otherwise on the next Business Day.
35.3 AddressforNotices
Forthe purposes of this clause 35, a person (the sender) may take the address, facsimile numberand emailaddress of another person (the recipient)to be the address, number and emailaddressset out in the Infonnation Table unless a different address ornumber is notified by the recipienttothe sender, then to the last so notified address or number.
Minter Elmson I Ref: MEA ANS 30-6684923
15672795: 890440, _21ME 9453z379_s(w2003x)
RCD Development Agreement- Civic Prednct Site I I page 65
36. Representationsandwarranties36.1 Representationsandwarranties
The Developer represents and warrantsto Places Victoriathat:
(a) (Developer's Works)it will ensure that the Developer's Works are carried out andcompleted in accordance with the Approved Design Documentation and so that theDeveloper's Project, when completed, will:
(i) bentforitsstatedpurpose;and
(ii) comply with allLaw;
(power)it has fulllegalcapacity and power:
(i) to own Its property and assets and carry on its business as it is nowbeingconducted; and
(ii) to enter into, exercise its riglits and pertorrn its obligations under this Deed andtheother ProjectDocuments;
(approval) all conditions and things required by applicable Law to be fulfilled or done(including the obtaining of any necessary Approvals) in order to enable it lawfulIy to enterinto, and exercise its rights and perfonn its obligations under, this Deed and the otherProject Documents have been fulfilled or done
(d) (ohmgations binding)this Deed and the other ProjectDocuments forrn valid and legallybinding obligations, enforceable against it exceptto the extentlimited by equitableprinciples and Law affecting creditors' rights generally;
(, 10 contraventio") neither its execution of, nor its exercise of its riglits or perlonnance ofits obligations under, this Deed and the other Project Documents does orwill:
(i) contravene any applicable Lawto which it or any of its property is subject or anyorder of any Government Agency binding on it or any of its property;
(ii) contravene anyApprovalorrequirethat any Approval be obtained;
(in) contravene any undertaking or instrument binding on it or any of its property;
(iv) contraveneanyprovisionofits constitution;
(v) require it to make any payment or delivery in respect of any financial indebtednessbefore the scheduled date forthat payment or delivery; or
(vi) cause any limitation on its power to incur financial indebtedness to be exceeded;(ino litigation) no litigation, arbitration or administrative proceedings are taking place,pending or, to the knowledge of any of its officers, threatened againstit or any of itssubsidiaries or any of its or their property which, ifadversely detennined, could have,either separately or in aggregate, a material adverse effect on it or any of its subsidiaries oraProject Document;
(other information)the written inforrnation and reports (ifany) which it has furnished toPlaces Victoria in connection with the negotiation and preparation of this Deed and theother Project Documents:
(i) were, when given, true and accurate in allmaterialrespects and not misleading,whether by omission or otherwise; and
(e)
Mintsr Ellison I Ref; MEA ANS 30-6684923
15672795: 8904401_21ME_9,5323?9.5(wz003*)
RCD Development Agreement- Civic Precinct Site I I page 66
(ii) contain forecasts and opinions allofwhich were made orfbnned after due andcareful consideration on the part of its relevant officers based on the bestinfonnation available to it and were fairand reasonable when made or forrned;
(no filings or taxes) it is not necessary to file orregister with any Government Agency orto pay any taxes to ensure this Deed's orthe Project Documents legality, validity,enforceability or admissibility in evidence;
(i) ("odefa"Its)noDefaultEventexists;and
(j) (trust) in entering into this Deed, it is not acting as trustee of any trust or settlement.
36.2 Warranties unaffected
The Developer acknowledges that the representations and warranties in clause 36.1 and theDeveloper's obligations under clause 9(d) will remain unaffected notwithstanding any Variation.
36.3 Continuance of representations and warrantiesThe Developer must immediately notify Places Victoria ifa representation orwarranty givenunder clause 36.1 becomes untrue.
36.4 Reliance on representations and warrantiesThe Developer acknowledges that Places Victoriahas entered into this Deed in reliance on therepresentations and warranties in this clause 36.
37. Forcemajeure
37. , Notice of Force Majeure EventIfthe Developer is prevented from, or delayed in, perlonning any of its obligations under thisDeed by a Force Mineure Event and the Developer wantsto rely on the Force Mt\jeure Event, thenit must notify Places Victoria and the Independent Assessor in writing of the occurrence of theForce Majeure Event and the circumstances resulting or arising from it within a reasonable timeafter the occurrence of the Force Majeure Event. The notice must give:
(a) detailsoftheForceMajeureEvent;
(b) details of the Developer's obligations under this Deedwhichare affected;
(c) details of the action that the Developer hastaken and proposes to take to remedy thecircumstances or situation arising orresulting from the Force Majeure Event;
(d) an estimate of the time during which the Developer was or will be unable to carry outtheaffected obligations due to the Force M4jeure Event; and
(e) details of allinsurance policies upon which the Developer will be able to rely in makinggood loss ordainage caused by the Force Majeure Event.
37.2 Information
The Developer must keep Places Victoria and the Independent Assessorreasonably informed ofthe steps being taken to mitigate the eff^ct of the Force Mt\jeure Event upon the performance ofthe Developer's obligations under this Deed and of an estimate of the duration of any delays.
37.3 Rights after Force Majeure EventFollowing a Force M:\jeureEvent, the Developer's obligations under this Deed which are affectedby the Force M4jeure Eventwillbe suspended, but only to the extent, and for so long as, suchobligations are genuinely affected by the Force Mt^jeure Event. The IndependentAssessor hasthe
Minter Ellison I Ref: MEA ANS 30^684923
t5672795: 890440, _21ME_9,532379.5 0V2003, )
RCD Development Agreement- Civic PredndSite 11page 67
discretion in detennining whether the Developer's obligations are suspended under thisclause 37.3 andthe period for which the obligations are suspended.
37.4 Nodefault
The Developer will not be deemed to be in default of its obligations under this Deed in so for asfailure or delay in the observance or pertonmance of those obligations by the Developer is causedby aForce Mqjeure Event. The Developer must actreasonably to remedy and overcometheeffects of a Force Mt!jeure Eventwithout unreasonable delay.
37.5 Cessation of Force Majeure Event
When the period for which the Developer's obligations are affected by a Force Mt^16ure Eventceases, the Developer must immediately recommence perfbnnance of all obligations under thisDeed which are affected by the Force Mt!jeure Event.
38. Confidentiality
38.1 General obligationsThe Developer must keep confidential and not allow, make orcause any public announcement orother disclosure of or in relation to:
(a) the ternis of this Deed (including any written or oralagreements, negotiations orinformation in relation to this Deed) and the Project Documents; and
(b) any documents which are, or infonnation which is, confidential under this Deed,
withoutthe priorwritten consent of Places Victoria, which consent may be given or withheld, orgiven with conditions, in Places Victoria's sole discretion.
38.2 ExceptionsThe Developer's obligations in clause 38.1 do not apply to a disclosure or announcement to theextentthatthe disclosure orannouncementis required:
by Law;
(b) by thensting rules of Australian Stock EXchange Limited; or
(c) fortheDevelopertoperfonn its obligations under this Deed.
38.3 Developer to procure complianceThe Developer must procure any sub-contractors or other person with whom the Developer has anagreement in relation to the Developer's Project and theirrespective employees, agents and sub-contractors to:
(a) comply with the provisionsofsection72 of the Act; and
(b) ensure that allcontracts or documents to which any one or more of them is a party containa provision which acknowledges the obligations created by this Deed.
39. Nori-mergerNo provision of this Deed:
(a) merges on or by virtue of any act, matter orthing undertaken orcarried out by either ofthe Developer or Places Victoria under this Deed including withoutlimitation PracticalCompletion; or
Minter Ellison I Ref MEA ANS 30-6684923
15672795: 8904401_21ME_94532379_5(W2003*
RCD Development Agreement - Civic Precinct Site I I page
40. Lawandjurisdidion
40.1 Governing LawThis Deed is governed by the Law of the State,
40.2 SubmissiontojurisdictionThe parties submitto the non-exclusive jurisdiction of the courts of the State and any courts thatmay hear appeals from those courts in respect of any proceedings in connection with this Deed orany other Project Document.
is in any way modified, discharged orprejudiced by reason of any investigations made orany information acquired by or on behalfofthe Developer or any of the conditionsspecified in clause 5.2 being waived.
41. General
41.1 Continuing indemnitiesEach indemnity given by the Developer in this Deed is acontinuing obligation, separate andindependentftom the other obligations of the Developer, and survives termination of this Deed,
41.2 Waiver
The non-exercise of or delay in exercising any power orriglit of a party does not operate as awaiver of that power or right, nor does any single exercise of a power orright prec!ude any otherexercise of it orthe exercise of any other power orriglit. A power orright may only be waived inwriting, signed by the party to be bound by the waiver,
41.3 RightscumulativeThe rights and remedies provided in this Deed are cumulative and do not exclude any rights orremedies provided by Law.
41.4 EntireagreementThis Deed and the other Project Documents fomithe entire agreement of the parties on the subjectmatter. The only enforceable obligations and liabilities of the parties in relation to the subjectmatter are those that arise out of the provisions contained in this Deed and the Project Documents.Allrepresentations, communications and prior agreements in relation to the subjectmatter aremerged in and superseded by this Deed andthe other Project Documents,
41.5 Amendment
This Deed may only be amended orsupplemented in writing signed by the parties.
41.6 AssignmentPlaces Victoria may assign ortransfer allotany part of its rights or obligations under this Deed orany other Project Document withoutthe consent of the Developer.
41.7 SeverebilityAny provision in this Deed which is invalid orunenfbrceable in anyjurisdiction is to be readdown forthe purposes of that jurisdiction, ifpossible, so asto be valid and enforceable, and isotherwise severed to the extent of the invalidity or unenfbrceability, without affecting theremaining provisions of this Deed or affecting the validity or enforceability of that provision inany other jurisdiction.
Minim Ellison I Ref: MEA ANS 30,6684923
15672795: 8904401_21ME_94332379_5 (W2003x)
RCD DevelopmenlAgreement- Civic Precinct Site 11 page 69
4, .8 Further assurance
Each party must do, sign, execute and deliver and must procure that each of its employees andagents does, signs, executes and delivers, all deeds, documents, instruments and acts asreasonably required of it orthem and must carry out and give full effectto this Deed and theriglits and obligations of the parties under it,
41.9 CounterpartsThis Deed may be executed in any number of counterparts and allofthose counterpartstakentogether constitute the same instrument.
4, ., 0 AttorneysEach attorney who executes this Deed on behalfofa party declares that the attorney has no noticeof the revocation orsuspension by the grantor or in any manner of the power of attorney under theauthority of which the attorney executes this Deed,
41.11 No partnership or agencyExcept as expressly provided in this Deed, nothing contained or implied in this Deed will:
(a) constitute or be deemed to constitute a party to bethe partner, agent or legal representativeof any other party for any purpose;
(b) create orbe deemed tooreate anypartnership; or
(c) create orbe deemed to create anyagency orb'ust.
,2 Unfettered discretion
The Developer acknowledges and agreethat:
(a) nothing in this Deed or in any of the ProjectDocuments will in any way unlawfulIyrestrict or otherwise unlawfulIy affect the unfettered discretion of Places Victoria toexercise any of its functions or powers pursuantto any legislation;
(b) withoutlimiting clause 41.12(a), anything which Places Victoria does, failsto do orpurportsto do pursuant to its functions and powers under any legislation will not bedeemed to be an act or omission by Places Victoria under this Deed;
where this Deed stalesthat Places Victoriawill use 'reasonable endeavours' or'bestendeavours' in relation to an outcome, it meansthat Places Victoria will take steps to bringaboutthe relevant outcome so far as it is reasonably able to do so, having regard to itsother responsibilities, but Places Victoria and the State cannot guarantee the relevantoutcome and neither Places Victoria nor the State will be required to legislate in the futureto achieve the relevant outcome;
nothing in this Deed or in any of the Project Documents will in any way:
(i) interfere with orinfluence the exercise of any statutory power or discretion by anybody, including a Government Agency;
(ii) require Places Victoria or the State to exercise a power or discretion in a mannerthat promotes the o1^jectives and expected outcomes of this Deed ifPlaces Victoriaorthe State regard that exercise as not in the public interest;
require Places Victoria orthe State to develop orimplement new policy in amanner that is only consistentwith the objectives and expected outcomes of thisDeed;
Minter EMSon I Ref: MEA ANS 30,6684923
15672795: 890440, _21ME_945323?9_50V2003x)
RCD Development Agreement- Civic PrecindSite I I page 70
(iv) require Places Victoria or the State to legislate in the future in a manner that isonly consistent with the objectives and expected outcomes of this Deed; and
(v) require Places Victoria orthe State to act in any other way that Places Victoria orthe State regard as notinthe public interest; and
any tenn of this Deed which does or purports (in whole or in part)to bind Places Victoriato exercise any of its functions or powers pursuantto any legislation must be interpretedsubjectto this clause 41.12.
13 Surviving provisionsObligations of the parties under clauses I, 2, 8, 10.2, 10.3, 13.1, 13.7, 13.13, 13.16, 13.17, 13.18,14, 18, 21.6, 22, 24(d), 32, 36, 39, 41 willsumive the tennination of this Deed.
Minter Ellison I Ref: MEA ANS 30.6684923
15672795: 890440, _21ME_945323?9_S IW2003x)
RCD Development Agreement- Civic Precinct Site I I page 71
Schedule I- Milestone Events
Transfer Date
Commencement of Active Construction on
ParcelA
Date for Practical Completion:
29June 2012
31 January 2013
31necember2014
Minter Ellison I Ref: MEA ANS 30-6684923
15672795: 8904401_21\IE 9453Z370 S tv'2003")
RCD Deve!opment Agreement -Civic Precinct Site I I page 72
Schedule 2- Developer's Project
The development of a new civic precinct on the Land comprising:
on ParcelA:(a)
(i) aregionallibrary;
(Ii) aciviccustomerservicesfacility;
(in) citychambers andconnnunitybasedmeetingrooms;
(iv) offices fortheusebythe Developer; and
(v) any other works and'oriises as agreed between Places Victoria and the Developer;
on ParcelB:(b)
(c)
temporary landscaping to complement the works anduses on ParcelC; and
on Parcel C:
(i)
(ii)
a penmanent open air civic plaza and prograinmable eventsspace;
a penmanent outdoorintegration facility and associated landscaping; and
any other works and/oruses as agreed between Places Victoria and the Developer.
Minter Ellison I Ref: MEA ANS 30-6684923
15672795: 8904401_21ME 94532379 s N2O03")
RCD Development Agreement- Civic Precinct Site I I page 73
Schedule 3 - Key Consultants
CONSULTANTS
Legal Representation
Development Manager/ProjectManager
Quantity Surveyor
Architect
ESD Consultant
Structural Engineer
CivilEngineer
Mechanical Engineer
Electtical Engineer
Traffic Engineer
Landscape Architect
Building Surveyor
TownPlanner
Maddocks
CGD
CONTRACTORS
SIattery Australia
Lyons Architects
AGCom
BonacciGroup
BonacciGroup
AGCom
AGCom
AGCom
Rush Wright
Peter Luzinat
Urbis
TBA
Minter Ellison I Ref: MEA ANS 30-6684923
t5672795: 8904401_21ME 945,237q s Iwz003")
RCD Development Agreement ~ Civic Precinct Site I I page 74
Schedule 4 - Land
Minter Ellison I Rel: MEA ANS 30-6684923
t5672795: 8904401_21ME 945,237q s I\v200a")
RCD Development Agreement - Civic Precinct Site I I page 75
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Schedule 5 - Developer's Project Documents
.
.
This Deed
Early Occupation Licence
Approved Development Plan
Endorsed Development Plans
Design Documentation
Approved DesignDocumentation
Land Sale Contract
independent AssessorDeed
Registrable Environmental Agreement
Registrable General Agreement
my Section 173 Agreement in connection with the Land
.
.
.
.
.
.
.
.
.
Mintsr Ellison I Ref: MEA ANS 306684923
15672795: 8904401_21ME 945,2370 s (W2003")
RCD Development Agreement- Civic Precinct Site I I page 76
Schedule 6
Ally covenant, encumbrance, restriction or easement ref^ITedto on the Crown grant or certificate of titleforthe Land oron any registered Plan of Subdivision forthe Land, allregistered covenants,encumbrances, restrictions and easements including withoutlimitation alleasements specified on anyregistered Plan of Subdivision for the Land, alleasements implied under the Subdi\, lisionrtc! 1988, alleasements otherwise appropriated reserved or created by registered Plan of Subdivision forthe Land andany subsequent subdivision approved by Places Victoria, the Regislrable Environmental Agreement, theRegistrable General Agreement* eachbeing registered orto be registered on the title to the Land, and anyother encumbrances and registrab!e agreements referred to in the Land Sale Contract.
^ Encumbrances
Minter Ellison I Ref: MEA ANS 30-6684923
15672795: 8904401_21MF 04532379 s UV2003*}
RCD Development Agreement - Civic Precinct Site I I page 77
Schedule 7 - Land Sale Contract
Minter Ellison I Ref: MEA ANS 30,684923
t5672795: 8904401_2131E 94,323?9 S (W2003x}
RCD Development Agreement- Civic Precinct Site I I page 78
Contract of sale
ParcelA, Civic Precinct, CentralDandenong
Urban Renewal Authority Victoria (Vendor)
City of Greater Dandenong (Purchaser)
15672795: 8903/09_21ME_94447192_4 my2003x)
MintsrEllison
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LA WYERS
Form I
Estote Agents Act 1980 Regulation 5(a)
CONTRACTOFSALEOFREALESTATE
Part lofthe standard form of contract prescribed by the Estate Agents(Contracts) Regulations 2008
The vendor sells and the purchaser buysthe property, being the land and the goods, forthe price and on the conditions set out inthis contract,
The terms of this contract are contained in the:* particularsofsale;* special conditions, ifariy;* General conditions;and* Vendor's Statement
and in that order of priority.
The Vendor's Statement required by section 32(I) of the Sale of Land Act 1962 is attached to and 16nns part of this contract.The parties should ensure that when they sign the contract they receive a copy of the Vendor's Statement, the general conditionsand any special conditions.
The DAY OF SALE is the date by which both parties have signed this contract.
IMPORTANTNOTICETOPURCHASERS
Cooling-offperiod (Section 31 Sale of Land Act 1962)You may end this contmct within 3 clear business days of the daythatyou sigithe contractifnone of the exceptionslisted bdowapplies to you.You must either give the vendor or the vendor's agent written notice that you are ending the contractor leave the notice at theaddress of the vendor or the vendor's agent to end this contract within this time in accordance with this cooling-offprovision.You are entitled to arefund orallthe money you paid EXCEPT for $100 or0.2%of the purchase price (whichever is more)ifyou end the conimct in this way.EXCEPTIONS
The 3-day cooling-offperiod does not apply it* you boughttheproperty at orwithin 3 clearbusiness days before or after a publicly advertised auction;* you received independentadvice from alegalpractitionerbeforesigningthecontract;* the property is usedmainlyforindustrlalorcommercialpurposes;* the property ismore than 20 hectares in sizeand is used mainly for farming;* you and the vendorpreviously signed asimilarcontract forthe same property; or
ou are an estate a Grit or a co orale bod .*
Minter Ellison I Ref: MEAANS 30-6684923
15672795: 8903/99_21ME_94447,92_4 my2003x)
Civic Precinct Site, Parcel A. Contract of sale I page 2
Particulars of sale
Vendor's estate
agent
Vendor
Not applicable
Vendor's legalpractitioner orconveyancer
Urban Renewal Authority Victoria (trading as 'Places Victoria')
Contact: Robert Yu
Telephone: 8317 3400 Fax: 8317 3666
710 Coilins Street, Docklands Victoria 3008
Name: Mintsr Elmson
Contact: Angela Sohooneman
Telephone: 8608 2000 Fax: 8608 1000
Level 23, 525 Collins Street MelbourneVictoria 3000
email: angela. schooneman@mintereUison. coin
City Of Greater Dandenong
Contact: DartenRogers
Telephone: 9239 5286 Fax: 9239 5196
PO Box200, DandenongVIC 3175
email: Danen. Rogers@cgd. vic. gov. an
Name: Maddocks
Contact: Guy O'Connor/Namlie Shekel
Telephone: 9288 0542 Fax: 9288 0666
email: Natalie. shekel@maddocks. coin. au
[Parcel/, @of dressto be inserted], DandenongVictoria 3175
Certificate of title volume /:rinsertj folio /ringertjlP@reelA loind descrdy, nom to beinserte41
Not applicable
$4,173,763.00 (plus OST)Price
Deposit $417,376.30(plusGST) payable onexecutionofttiiscontract
Purchaser
Purchaser's legalpractitioner orconveyancer
Property address
Land
Goods
Payment
Minter Ellison I Ref MEAANS 30-6684923
Balance
5: 8903/99_21ME_94447192_4 my2003x)
$3,756,386.70 (plus GST) payable at settlement
Civic Precinct Site. Parcel A, Contract of sale I page 3
CST The price is exclusive ofGST (ifany) unlessthe words 'GSTinclusive' appear in this box
Ifthis is a sale of a 'famning business' or'going concern'then add thewords 'farming business' or 'going concern' in this box
Ifthe margin scheme will be used to calculate GST then add thewords'margin scheme'in this box
I'mser!I
is due on the Transfer Date
Day of Sale
Settlement
Vacant possession
Terms contract
At settlement the purchaser is entitled to vacant possession of theproperty unlessthe words'subjectto lease' appear in this box inwhich case refer to General Condition 1.1,
If'subject to lease'then particulars of the lease are:
Ifthis contractis intended to be atenns contract withinthe meaningof the Sale of Land Act 1962 then the words'terms contract'in thisbox.
Reft:rto General Condition 23
This sale is NOT subjectto an existing mortgage unlessthe words'subject to existing mortgage' appear in this box
Particulars of any other encumbrance to which this sale is subject
Allregistered and unregistered covenants and easements includingwithout limitation:
co allproposed easementsspecified on the Crown Grant;
(ii) alleasements implied under the Subdivision Act 1988;
(in) all easements otherwise appropriated reserved or created byregistration of the Crowi Grant;
(iv) the Registrable Agreements, including the RegistrableAgreements attached as AnnexureA and Annexure B; andthe easements and encumbrances referred to in clause 5.1(b)and Schedule 6 of the Development Agreement.
^ncumbra"ces
^_I
1:1^.
L, __I
are:
Special conditions
(v)
Loan
This contract does notinclude any Special Conditions unlessthewords 'special conditions' appear in this box
The following details apply ifthis contractis subject to a loan beingapproved:
Lender:
Mintsr Ellison I Ref: MEA ANS 30-6684923
I__.
95: 8903/99_21ME_94447,92_4 my2003x)
Civic Precind Site. ParcelA, Contract ofsale I page 4
SpecialConditions
Day of-Sale
Loan amount $
Approvaldate I 120
(ref^rto General Condition 14)
Minter Ellison I Ref MEAANS 30-6684923
5: 8903/99_21ME_94447,92_4 tnn003x)
Civic Precinct Site, Parcel A. Contrast of sale I page 5
CONTRACTOFSALEOfREALESTATE-GENERALCONDITIONS
TITLE
I.
I . I
Part 2 of the standard form of contract prescribed by theEstate Agents (Contracts) Regulations 2008
FORM2
Estate Agents Act 1980
Encumbrances
The purchaser buys the property subjectto:
(a) any encumbrance shown in the Vendor's Statement other than mortgages or caveats; and
(b) any reservations in the crown grant; and
(c) any lease referred to in the particulars of sale
The purchaser indemnifies the vendor against all obligations under any lease that are to beperlomied by the landlord aftersettlement.
Ifthe particulars of sale provide that the purchaser is taking over an existing mortgage:
(a) the purchaser assumes liability forthe mortgage; and
(b) the price is satisfied to the extent of any mortgage money owing at settlement; and
(c) the vendor must treatany payment made by the purchaser under the mortgage as a paymentmade to the vendorunderthis contract.
Vendorwarranties
The vendor warrantsthatthese general conditions It0 28 are identical to the general conditions Ito 28 in the standard fomiof contract of sale of real estate prescribed by the Estate Agents(Contracts) Regulations 2008 forthe purposes of section 53A of the Estate Agents Act 1980
The warranties in general conditions 2.3 and 2.4 replace the purchaser's right to make requisitionsand inquiries.
The vendor warrantsthalthe vendor:
(a) has, or by the due date for settlement will have, the right to senthe land; and
(b) is under 00 legal disability; and
(c) is in possession of the land, either personally orthrough a tenant; and
(d) has not previously sold or granted any option to purchase, agreed to a lease or granted a pre-emptive right which is current overthe land and w!Iicligives another party rights which havepriority over the interest of the purchaser; and
(6) will at settlement be the holder of an miencumbered estate in foe simple in the land; and
(f) will at settlement be the rulencumbered owner of any improvements, fixtures, fittings andgoods sold with the land.
.2
.3
2.2
2.3
Minter Elllson I Ref: MEA ANS 30-6684923
t5672795: 8903/99_21ME 94447i92_4 my 2003x)
Civic Precinct Site, Parcel A, Contract of sale I page 6
The vendor further warrantsthatthe vendor has no knowledge of any of the following:
(a) pubhc rights of way overthe land;
(b) easements overthe land;
(c) lease or other possessory agreement affecting the land;
(d) notice or order affecting the land which will not be dealt with at settlement, other than theusual rate notices and any landtax notices;
(6) legal proceedings which would render the sale of the land void or voidable or capable ofbeing set aside.
The warranties in general conditions 2.3 and 2.4 are subject to any contrary provisions in thiscontract and disclosures in the Vendor's Statement.
Ifsections 137B and 137C of the Building Act 1993 apply to this contract, the vendor warrantsthat:
(a) all domestic building work carried out in relation to the construction by or on behalfofthevendorofthe home was carried outin a proper and workmanlike manner; and
(b) all materials used in that domestic building work were good and suitable forthe purpose forwhich they were used andthat, unless otherwise stated in the contract, those materials werenew; and
(c) domestic building work was carried outin accordance with alllaws and legal requirements,including, withoutlimiting the generality of this warranty*the Building Act 1993 andregulations made under the Building Act 1993.
Words and phases used in general condition 2.6 which are defined in the Building Act 1993 havethe same meaning in general condition 2.6.
Identity of the land
All omission or mistake in the description, measurements or area of the land does not invalidate thesale.
2.7
3.
3. I
3.2 The purchaser may not:
(a) make any objection or claim for compensation for any alleged misdescription of the propertyorany deficiency in its area or measurements; or
(b) require the vendorto amend title orpay any cost of amending title
Services
The vendor does notrepresentthatthe services are adequate forthe purchaser's proposed use of theproperty andthe vendoradvisesthe purchaser to make appropriate inquiries. The condition of theservices may change between the Day of Sale and settlement and the vendor does notpromise thatthe services will be in the same condition at settlement antheywere on the Day of Sale.
The purchaser is responsible forthe connection of allservices to the properly aftersettlement and thepayment of any associated cost,
Consents
The vendor must obtain any necessary consent or licence required forthe sale. The contract will beat an end and allmoneypaid must be refunded ifany necessary consent or licence is not obtainedby settlement.
4.
4.1
4.2
Ellison I Ref: MEA ANS 30,6684923
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Civic Precinct Site. Parcel A, Contract of sale I page 7
Transfer
The transfer of land docunient must be prepared by the purchaser and delivered to the vendor atleast 10 days before settlement. The delivery of the transfer of land document is not acceptance oftitle. The vendor must prepare any document required for assessment of duty on this transactionrelating to mattersthat are or should be within tlie knowledge of the vendor and, ifrequested by thepurchaser, must provide a copy of that document at least 3 days before settlement.
Release of company charge
The vendor must provide at settlement a release of the property from any registered charge lodgedunder the Corporations Act 2001 (Cth) ifrequested in writing to do so at least 21 days beforesettlement. This obligation does not apply iftlie chargee is the proprietor of a registered mortgageoverthe land. The vendormustpay the registration fee ifeitherparty requires registration of thatrelease.
Builder warranty insurance
The vendor must provide at settlement details of any current builder warranty insurance relating tothe property ifrequested in writing to do so at least 21 days before settlement.
General law land9.
9.1 This general condition only applies ifanypart of the land is not under the operation of theTransfer of Land Act 1958.
9.2 The vendor is taken to be the holder of an unencumbered estate in fee simple in the land ifthere isan unbroken chain of title starting at least 30 years before the Day of Saleproving on the face ofthe documents the ownership of the entire legal and equitable estate withoutthe aid of otherevidence.
The purchaser is entitled to inspectthe vendor's chain of title on request at such place in Victoria asthe vendor nominates.
The purchaser is taken to have accepted the vendor's title it
(a) 21 days have elapsed since the Day of Sale; and
(b) the purchaser has not reasonably objected to the title orreasonably required the vendortoremedy a defect in the title.
The contract will be at an end it9.5
(a) the vendor gives the purchaser a notice that the vendoris unable orunwilling to satisfy tilepurchaser's objection orrequirement and that the contract winend ifthe objection orrequirement is not withdrawn within 14 days of the giving of the notice; and
(b) the objection orrequirementis not withdrawn in that lime
Ifthe contract ends in accordance with general condition 9.5, the deposit must be returned to thepurchaser and neither party has a claim againstthe other in damages,
General condition 10.1 should be read, mrespect of that part of the land which is not under theoperation of the Transfer OILand Act 1958, as ifthe reference to 'registered proprietor'is aref;arerice to 'owner',
9.6
9.7
Minter EMScn I Ref: MEA ANS 30-6684923
t5672795: 8903/99_21ME_944,192_4 IW2003x)
Civic Precinc! Site. Parcel A, Contract of sale I page 8
MONEY
10.
10.1 At settlement:
Settlement
(a) the purchaser must pay the balance; and
(b) the vendormust:
do arithings necessary to enable the purchaser to become the registered proprietor ofthe land; and
(it) give either vacant possession or receipt of rents andprofits maccordance with theparticulars of sale.
10.2 The vendor's obligations under this general condition continue aftersettlement.
10.3 Settlement must be conducted betweenthe hours of 10.00 a. in. and 4.00 p. in, unless the partiesagree otheiwise.
Payment
The purchaser must pay the deposit
(a) to the vendor's licensed estate agent; or
(b) ifthere is no estate agent*to the vendor's legal practitioner or conveyancer; or
(c) ifthe vendor directs, into a special purpose accountin an authorised deposit-takinginstitution in Victoria specified by the vendor in the joint names of the purchaser and thevendor.
2 11the land sold is a lot on an unregistered plan of subdivision, the deposit
(a) must not exceed 10% of the price; and
(b) must be paid:
(i) to the vendor's licensed estate agent or legal practitioner or conveyancer and held bythe estate agent or legal practitioner or conveyancer on trust for the purchaser untiltheregistration of the plan of subdivision; or
(it) ifihe vendor directs, into a special purpose account in an authorised deposit-takinginstitution in Victoria specified by the vendorin the contractin the joint names of thepurchaser and the vendor and held in that account untilthe registration oftlie plan ofsubdivision.
3 The purchaser must pay allmoney other than the deposit
(a) to the vendor, or the vendor's legal practitioner or conveyancer; or
(b) in accordance with a written direction of the vendor orthe vendor's legal practitioner orconveyancer.
11.4 At settlement, payments may be made ortendered:
(a) incash; or
(b) by draft or cheque drawn on an authorised deposit-taking institution; or
(c) ifihe parties agree, by electronically tmnsferring the payment in the fomi of cleared funds.
Mintsr Ellison I Rat MEA ANS 30-6684923
95: 8903/99_21ME_94447t92_4 (w2003x)
Civic Precinct Site, Parcel A. Contract of sale I page 9
1.5 For the purpose of this general condition 'authorised deposit-taking institution' means abodycorporate in relation to which an anthotityundersection 9(3) of the Banking Act 1959 (Cth) is inforce.
1.6 The purchaser must pay bank tees on up to three bank cheqiies at settlement, butthe vendormustpay the bank fees on any additional bank cheques requested by the vendor.
2. Stakeholding
2.1 The deposit must be released to the vendorif:
(a) the vendor provides proof, to the reasonable satisfaction of the purchaser, that either-
(1) there are no debts secured againstthe properly; or
(ii) ifthere are any debts, the total amount of those debts does not exceed 80% of the saleprice; and
(b) at least 28 days have elapsed since the Day of Sale; and
(c) allconditions of the Sale of Land Act 1962 have been satisfied.
12.2 The stakeholder must pay the deposit and any interest to the party entitled when the depositisreleased, the contractis settled, or tile contract is ended.
12.3 The stakeholder may pay the deposit and any interest into court ifitis reasonable to do so.
13. CST
The purchaser does not have to paythe vendorany GST payable by the vendorin respect of ataxable supply made under this contract in addition to the price unless the particulars of sale specifythat the price is'plus GST'. However the purchaser must pay to the vendor any GST payable by thevendor:
(a) solely as a result of any action taken or intended to be taken by the purchaser after the Day ofSale, including a change of use; or
(b) ifthe particulars of sale specify that the supply made under this contractis a fanningbusiness andthe supply does not satisfy the requirements of section 38-480 of the GST Act;
(c) ifthe particulars of sale specify that the supply made under this contractis a going concernand the supply does not satisfy tile requirements of section 38-325 of the GST Act.
13.2 The purchaser must pay to the vendor any GST payable by the vendor in respect of a taxablesupply made under this contract in addition to the price ifthe particulars of sale specify that theprice is 'plus GST'.
13.3 Ifthe purchaser is liable to pay OST, the purchaser is notrequired to make payment untilprovidedwith a tax invoice, unless the margin scheme applies.
13.4 Ifthe particulars of sale specify that the supply made under this contractis a 'fanning business':
(a) the vendorwarrants that the property is land on which a fanning business has been carriedon forthe period of5 years preceding the date of supply; and
(b) the purchaser warrants thattlie purcliaser intends that a fanning business will be carried onalter settlement on the property.
Ifthe particulars of sale specify that the supply made under this contract is a 'going concern'
(a) the parties agree that this contractis forthe supply of a going concern; and
or
IEllison I Ref: MEA ANS 30^684923
t5672795: 8903/99_21ME, 94447t92_4 (W2003x)
Civic Precinct Site. Parcel A, Contract of sal
(b) the purchaser warmits that the purchaser is, orpriorto settlement will be, registered for GST;and
(c) the vendorwarrantsthatthe vendor will carry on the going concern untilthe date of supply
13.6 Ifthe particulars of sale specify that the supply made under this contractis a 'inargin scheme'supply, the parties agree that the margin scheme applies to this contract.
13.7 This general condition will not merge on either settlement orregistration.
13.8 filthis general condition:
(a) 'GST Act' means A New Tax System (Goods and Services Tax) Act1999 (Cth);
(b) 'GST'includes penalties and interest.
14, Loan
14.1 Ifthe particulars of sale specify that this contractis subject to a loan being approved, tins contractis subject to the lender approving the loan on the securlty of the property by the approval date orany later date allowed by the vendor.
14.2 The purchaser may end the contractifthe loan is not approved by the approval date, but only ifthepurchaser:
(a) immediately applied forthe loan; and
(b) did everything reasonably required to obtain approval of the loan; and
(c) serves written notice ending the contract on the vendor within 2 clearbusiness days after theapproval date or any later date allowed by the vendor; and
(d) is notin default under any other condition of this contract when the notice is given.
14.3 All money must be immediately refunded to the purchaser ifthe contractis ended.
15. Adjustments
15.1 All periodic outgoings payable by the vendor, and any rent and other income received in respect ofthe properly must be apportioned between the parties on the settlement date and any adjustmentspaid and received as appropriate.
15.2 The periodic outgoings and rent and other income must be apportioned on the following basis:
(a) the vendor is liable forthe periodic outgoings and entitled to the rent and other income up toand including the day of settlement; and
(b) the land is treated as the only land of which the vendoris owner(as defined in the Land TaxAct 2005); and
(c) the vendor is taken to own the land as a resident Australian beneficial owner; and
(d) any personalstatutory benefit available to each party is disregarded in calculatingapportionment.
TRANSACTIONAL
16.
16.1 Time is of the essence of this contract.
Time
16.2 Time is extended untilthe next business day ifthe time for perfonning any action falls on aSaturday, Sunday or bank holiday
Minter Elmson I Ref: MEA ANS 30,3684923
t5672795: 8903/99_21ME, 94447i92_4 (W2003")
Civic Precinct Site, Parcel A, Contract of sale
17.
17.1 Ally documentsent by postistaken to have been served on the next business day after posting,unless proved otherwise,
17.2 Ally demand, notice, or document required to be served by or on any party may be served by or onthe legal practitioner or conveyancer for that party. It is sufficiently served itserved on the party oron the legal practitioner or conveyancer:
(a) personally;or
(b) by prepaidpost; or
(c) in any manner authorised by law or the Supreme Court for service of documents.
Service
Nominee
The purchaser may nominate a substitute or additional purchaser, butthe named purchaser remainspersonally liable for the due perlonmance of anthe purchaser's obligations under this contract.
Liability of signatory
Ally signatory for a proprietary limited companypurchaseris personally liable forthe dueperfonnance of the purchaser's obligations as ifthe signatory were the purchaser.
Guarantee
The vendor may require one or more directors of the purchaser to guarantee the purchaser'sperlonnance of this contractifthe purchaser is a proprietary limited company.
Notices
The purchaser is responsible for any notice, order, demand or levy imposing liability on theproperty that is issued or made on or after the Day of Sale that does not relate to periodic outgoings.The purchaser may enter the property to comply with that responsibility where action is requiredbefore settlement
Inspection
The purchaser and/oranother person authorised by the purchaser may inspectthe properly at anyreasonable time during the 7 days preceding and including the settlement day.
23.
23.1 Ifthis is a tenns contract' as defined in the Sale of Land Act 1962:
(a) any mortgage affecting the land sold must be discharged as to that landbefore the purchaserbecomes entitled to possession or to the receipt of rents and profits unless the vendorsatisfies sections 6(I) and 6(2) of 111e Sale of Land Act 1962; and
(b) the deposit and another money payable under the contract(other than any moneypayab!e inexcess of the amountrequired to so discharge the mortgage) must be paid to a legalpractitioner or conveyancer or a licensed estate agentto be applied in ortowards dischargingthe mortgage.
23.2 While any money remains owing each of the following applies:
(a) the purchaser must maintain fundamage and destruction insurance oftlie property andpublic risk insurance noting all parties having an irisurable interest with an insurer approvedin wrttingby the vendor;
Terms contract
Minter Ellicon I Ref: MEA ANS 30-6684923
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Civic Precinct Site. Parcel A. Contract of sale I page 12
(b) the purchaser must deliver copies of the signed insurance application fonns, the policies andthe insurance receipts to tlTe vendor notlessthan 10 days before taking possession of theproperty orbecoming entitled to receipt of the rents andprofits;
(0) the purchaser must deliver copies of any amendments to the policies and the insurancereceipts on each amendment or renewal as evidence of the status of the policies from time totime;
(d) the vendormay pay any renewal premiums ortake outthe insurance ifthe purchaser failstomeetthese obligations;
(e) insurance costs paid by the vendor under paragraph (d) must be refunded by the purchaseron demand without affecting the vendor's other riglits under this contract;
(1) the purchaser must maintain and operate the property in good repair(fairwear and tearexcepted) and keep the property safe, lawful, structuralIy sound, weatherproofand free fromcontaminations and dangerous substances;
(g) the property must not be altered in any way withoutthe written consent of the vendor whichmust not be unreasonably refused or delayed;
(h) the purchaser must observe all obligationsthat affect owners or occupiers of land;
(i) the vendor and/orotherperson authorised by the vendormay enter the property at anyreasonable time to inspect it on giving 7 days written notice, but riot more than twice in ayear.
24. Loss ordainage before settlement
24.1 The vendor carries the risk of loss or damage to the property untilsettlement
24.2 The vendor must deliver the property to the purchaser at settlement in the same condition it was inon the Day of Sale, except for fairwear and tear.
24.3 The purchaser must not delay settlement because one ormore of the goodsis not in the conditionrequired by general condition 24.2, but may claim compensation from the vendor after settlement.
24.4 The purchaser may noininate an amount riot exceeding $5,000 to be held by a stakeholder to beappointed by the parties ifihe property is notinthe condition required by general condition 24.2 atsettlement.
24.5 The nominated amount maybe deducted from the amount due to the vendor at settlement and paidto the stakeholder, but only ifthe purchaser also pays an amount equal to the nominated amount tothe stakeholder.
24.6 The stakeholder must paythe amounts referred to in general condition 24.5 in accordance with thedetennination of the dispute, including any order for payment of the costs of the resolution of thedispute,
Breach
A party who breaches this contract must payto the other party on demand:
(a) compensation for any reasonably foreseeable loss to the other party resulting from the breach;and
(b) any interest due under this contract as a result of the breach.
Minter Ellison I Rat MEA ANS 306684923
15672795: 8903/99_21NE_94447,92_4 my 2003x)
Civic PrecincR Site. Parcel A. Contract of sale I page 13
DEFAULT
26,
interest at a rate of2% per armum plusthe rate forthe time being fixed by section 2 of the PenaltyInterest Rates Act 1983 is payable on anymoney owing under the contract daring the period ofdefault, without affecting any other rights of the offended party.
27. Defaultnotice
27.1 A party is not entitled to exercise any rights arising from the other party's default, other than theright to receive interest and the right to sue formoney owing, untilthe other party is served andfails to comply with a wrttten default notice,
27.2 The default notice must:
Interest
(a) specify the particulars of the default; and
(b) state that it is the offended party's intention to exercise the rights arising from the'defaulunless, within 14 days of service of the notice-
(i) the defaultisremedied; and
the reasonable costs incurred as a result of the default and any interest payable arepaid.
Default not remedied28.
28.1 Allunpaid money under the contract becomes innnediately payable to the vendor ifthe default hasbeen made by the purchaser and is notremedied and the costs and interest are not paid.
28.2 The contractimmediately ends if:
(a) the default notice also states that unless the defaultis remedied and the reasonable costsand interest are paid, the contract will be ended in accordance with tliis general condition;and
the defaultis notremedied and the reasonable costs and interest are not paid by the end ofthe period of the default notice.
28.3 Ifthe contract ends by a default notice given by the purchaser:
(a) the purchaser must be repaid any money paid under the contract and be paid any interest andreasonable costs payable under the contract; and
(b) alithose amounts are a charge on the land untilpayinenl; and
(c) the purchaser may also recover any loss otherwise recoverable.
28.4 Ifthe contract Grids by a default notice given by the vendor:
(a) the depositup to 10% of the price is forfeited to the vendor asthe vendor's absolute property,w!lether the deposit has been paid or not; and
(b) the vendor is entitled to possession of the property; and
(c) in addition to any other remedy, the vendor may within one year of the contract ending either:
(i) retain the property and sue for damages for breach of contract; or
(ii) resellthe property in any manner and recover any deficiency in the price on the resaleand any resulting expenses by way of liquidated damages; and
Minter Ellison I Ref: MEA ANS 30^684923
t5672795: 8903/99_21ME 94447i92_4 IW2003x)
Civic Precinct Site. Parcel A, Contract of sale I page 14
(d) the vendor may retain any part of the price paid untilthe vendor's damages have beendetennined and may apply that money towardsthose damages; and
(6) any detennination of the vendor's damages must take into accounttlie amount forfeited to thevendor.
28.5 The ending of the contract does not affect the rights of the offended party as a consequence of thedefault
Minter Ellison I Ref: MEA ANS 30-6684923
t5672795: 8903/99_21ME_94,47192 4 (WOOD3x)
Civic Precinct Site. Parcel A. Contract of sale I page 15
Special conditions
I.
I .,
Defined terms & interpretationDefined terms
filthese special conditions:
Bankmeans:
(a) an Australian-owned bank;
(b) aForeignSubsidiarybank;or
(c) abranchofaForeignbank,
on the list, current on the Day of Sale, of authorised deposit-taking institutions regulated by theAustralian Prudeniial Regulation Anthorlty.
Corporations Act meansthe Co, porotionsAct2001(Cth)
Crown Grant meansthe CrownGrant fortheLand.
Developer meansthe City of Greater Dandenong,
Development Agreement meansthe development agreement betweentheVendorandtheDeveloper dated 11nsert/.
Due Date means tlie date on which settlement is due to occur.
Ge"eralCo"ditions are the conditionsset outin Eonn 2 in the Schedule to the Est"tertgents(Coniitzct$) Regwlotio"s 2008 (Vic).
Registrable Environmental Agreement means the agreement attached to this contract asAnnexure B,
Registrable General Agreement meansthe agreement attached to this contract as Annexure A.
Goods meansthe goods(ifany) specified in the Particulars of Sale and sold with the Propertyunder this contract.
Insolvency Eve"t, ifthe Purchaser is a corporation* means any of these events:
(a) an application is made to a court for an order, or an order is made,
(i) InatthePurchaserbewoundup;
(ii) appointing a liquidator or provisional liquidatorin respect of the Purchaser, or oneof them is appointed, whether or not under an order;
(b) a resolution is passed to appoint an administratoror an adrninistraioris appointed to thePurchaser;
(c) a receiver or a receiver and manager is appointed to the Purchaser;
(d) the Purchaser enters into, or resolves to enter into, a scheme of arrangement, deed ofcompany arrangement or composition witli, or an assignment forthe benefit of, all or anyclass of its creditors, or it proposes a reorganisation, moratorium or other administrationinvolving any of them;
Minter Ellison I Ref: MEA ANS 30<;684923
95: 8903/99_21ME_94447i92 4 (W2003")
Civic Precinct Site, Parcel A. Contract of sale I page 16
(6) the Purchaser resolves to wind itselfup, orotherwise dissolve itself, or gives notice of anintention to do so oris otherwise woundup or dissolved;
(f) the Purchaser is, orstatesthatitis, insolvent;
(g) as a result of the operation of section 459F(I) of the Corporations Act, the Purchaser istaken to have failed to comply with a statutory demand;
(h) the Purchaser is, or makes a statement from which the Vendormay reasonably concludethat the Purchaser is*the subject of an event described in section 459C(2)(a) to (f)inclusive or section 585 of the Corporations Act;
(1) the Purchaser takes any step to obtainprotection, oris granted protection, from itscreditors under any applicable Law;
O) a mortgagee takes possession of any one of the assets orundertakings of the Purchaser; or
(k) anytliing analogous orhaving a substantially similareffect to any of the events specifiedabove happens under any Law;
and ifthe Purchaser is a natural person, Insolvency Event means any of the following events:
the Purchaser:(1)
""' dies;or
(iv) becomes insolvent under administration, as this tenn is defined in the CorporationsAct;
and, tilthis definition only, the word Purchaser includes:
(in) any corporation which is a Related Body Corporate of the Purchaser; and
(n) eachGuarantor,
but shall riotinclude the amalgamation, reconstruction or restructure of the Purchaser PUTSuant tothe Local Govern, ,lent, ICJ1989 or any other law provided that such amalgamation, reconstructionorrestructure of the Purchaser does not render this contract voidable arthe option of aparty otherthan the Vendor.
Interest means the interest(ifany)that accrues on the depositlessthe taxes, charges and feescharged on, or attracted by, the deposit orby the interest earned on it.
Places Victoria means 111e Urbail Renewal Authority Victoria (trading as Places Victoria).
Property meansthe Land and the improvements on the Land.
Related Body Corporate hasthe meaning given to it in the Corporations Act.
Settlement Date means the dale on which the Purchaser pays the balance and settlement occurs
Special Conditions means these special conditions.
Transfer means the instrument of transfer rel^ITed to in General Condition 6.
Vendor's Estate Agent means the estate agent or estate agents forthe Vendor, ifany, whosedetails are SGI out in the particulars of sale.
Vendor's Solicitors meansthe Vendor's legal practitioner.
Interpretationhithis contract, unless the contrary intention appears:
Minter Ellison I Ref: MEA ANS 30-6684923
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Civic Precinct Site. Parcel A, Contract of sale I page 17
(a) a tenn that is not defined above and which is defined in the Development Agreement hasthe same meaning in this contract;
(b) headings are for ease of reference only and do not affectthe meaning oft}lis contract;
(c) the singular includes the plural andvice versa and words importing a gender include othergenders;
(d) other grammaticalfonns of defined words orexpressionshave corresponding meanings;
(e) a reference to a special condition, schedule or annexure is a reference to a specialcondition of, orschedule oralmexure to, this contract and a ref^Tence to this contractincludes allschedules and annexures;
(1) the meaning of general words is notlimitedby specific examples introduced by including,for example orsimilar expressions;
(g) a reference to As, SA, doriar or $ is a reference to Australian currency;
(h) ifa day on or bywhiclian obligation must be perfomied or an event must occuris not aBusiness Day, the obligation must be perfonned or tlie event must occur on or by the nextBusiness Day; and
(1) a reference to a statute includes regulations and other instruments under it andconsolidations, amendinents, re-enactments or replacements of any of them.
General
(a) Ifa party comprises two ormore persons, the provisions of this contmct binding that partybind those personsjointly and severally, Ally agreement, representation* warranty orindemnity in favour of two or more parties (including where two or more persons areincluded in the same defined terni)is for the benefit of them jointly and severally.
(b) A rule of construction does not apply to the disadvantage of a party because the party wasresponsible for the preparation of this agreement or anypart of it.
(c) A construction of this contractthat results in all of its provisions being enforceable is to bepref;erred to a construction that does not give this result
(d) If, despite the application of special condition 1.3(a), aprovision of this contractis megalorunenforceab!e, then:
ifthe provision would be legal and enforceable ifa word or words were omitted,that word orthose words are severed; and
in any other case, the whole provision is severed,
and the remainder of this contract continues in force,
(6) This contract may onlybe altered in wrtting signed byeach party.
(f) Ally condition of this contract which is capable of taking effect after the Settlement Datewill riot merge in the transfer oftlie Property but will continue in full force and effect.
(g) Time shall remain the essence oftliis contract despite any waiver given or indulgencegranted by a non-defaulting party to the party in default.
(h) This contract and the Development Agreement constitute the entire agreement betweenthe parties aboutthe sale and purchase of the Property. hirelalion 10 that subject matter,this contract and the Development Agreement supersede any prior understanding or
1.3
Minter Ellison I Ref: MEA ANS 30<;684923
15672795: 8903/99_21ME_94447192_4 (W2003x)
Civic Precinct Site, Parcel A, Contract of sale I page 18
agreement between the parties and any prior condition, warranty, indemnity orrepresentation imposed, given or made by or on behalfofa party.
Waiver of any provision or right under this contract:
(i) must be in writing signed by the party entitled to the benefit of that provision orright; and
(Ii) is effective onlyto the extent set out many written waiver.
2. Amendment of General Conditions
General Condition 1.1(b) is amended by adding the words 'exceptions and conditions' after theword 'reservations'.
3.
3.1
Purchaser acknowledgmentDocuments
The Purchaser acknowledges that it received a copy of this contract beforepaying any money orsigning any document in relation to this sale.
No representationsThe Purchaser acknowledges that:
(a) neitlierthe Vendornorany person on behalfofthe Vendor has made any promise to thePurchaser, or to any agent of the Purchaser, about obtaining a loan to deltay some or all ofthe price; and
(b) it has not relied, and does not rely, on any representation or warranty of any nature madeby or on behalfofthe Vendor, the Vendor's Solicitors or the Vendor's Estate Agent otherthan those expressly set outin this contract.
Sale of Land Act a962 (Vic)The Purchaser acknowledges that the Vendoris not bound by the Sale of Land Act 1962 (Vic) andthe Vendoris not obliged to furnish a statement under section 32 of the Sale of Land Act 1962(Vic).
InspectionsThe Purchaser acleriowledges that it
co hasinspectedthe Property andtheGoods(ifany);
has made anthe enquiries witliAuthorltiesthat a prudent and careful person would makebefore entering into this contract; and
(0) enters into this contract on the basis of its inspection and the enquiries it has carried out,and relying o11its ownjudgment.
Condition
The Purchaser acknowledges that:
(a) it buystheProperty:
(i) in its state, repair and condition on the Day of Sale; and
(ii) subject to allLaws imposed or prescribed that restrictthe use or development ofthe Property or otherwise affectthe Properly;
Minter Ellison I Ref: MEA ANS 30-6684923
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Civic Precinct Site, Parcel A, Contract of sale I page 19
(b) no Law constitutes a defectinthe Vendor's title or affectsthe validity of this contract
(c) it purchases and will acceptthe Goods in their state and condition on the Day of Sale, fairwearand tear excepted;
(d) ills responsible for remedying, at its own cost, any failure of the Property to comply onand from the Day of Sale with any Laws affecting the Property. The Purchaserindemnities the Vendor in respect of any loss or damage which the Vendormay incur ormay become liable for as a result of the Purchaser's failure to remedy any such failure.This Special Condition does notlimitthe operation of General Condition 21; and
(6) clause 8.2 of the Development Agreement applies to this contract as though the Vendor isPlaces Victoria and the Purchaser is the Developer forthe purposes of that clause.
No warranty by VendorThe Purchaser acknowledges that the Vendordoes notrepresent, and gives ino warranty orrepresentations:
that improvements on the Land:
(i) are constructed on oritisidetheboundariesoftheLand;
are not owned by thirdparties and encroach onto the Land; or
(in) comply with the tenns of all of the Laws tliat apply to them;
(b) aboutthe condition orfitness for purpose of tile Property or compliance or non-compliance with any Law with respectto the Property; and
(c) aboutthe working order, condition or fitness for purpose of the Goods, or any complianceor non-compliance onhe Goods with anyLaw.
Acceptance of title(a) The Purchaser acknowledges that by executing this contractthe Purchaser has accepted
title.
(b) Ifthe Land is land which is not under the operation of the 77, "NYei, ofL"ridrtc/ 1958 (Vic),then General Conditions 9.4, 9.5 and 9.6 do not apply to this contract.
Purchaser's risk
General Condition 24 is deleted.(a)
(b) The Purchaser carries the risk of loss ordainage to the Property and the Goods from theDay of Sale untilsettlement except otherwise provided by section 34 of the Sale of LandACr 1962 (Vic)
(0) The Vendoris notrequired to keep any existing policy of insurance in force.
(d) The Vendoris notrequired to carry out any repairworks, alterations or improvementstothe Properly fromtlie Day of Sale.
(e) Ifthe Vendor fails to comply with its obligations concerning the Goods, the Purchaser isentitled only to compensation from the Vendor.
No claim or requisitionsThe Purchaser will not make any objection orrequisition, claim any compensation orseek anyreduction in the Price, ask the Vendor to undertake any action or ask the Vendorto incur any cost,rescind this contract, or delay settlement because of any matter referred to in this contract, andparticularly in tliis special condition 3.
er Ellison I Ref: MEA ANS 30-6684923
15672795: 8903/99_21ME_94447192 4 my 2003x)
Civic Precinct Site. Parcel A. Contract of sale I page 2
3.10 Encumbrances
Despite General Condition 1.1(a), 111e Property is sold subject to the encumbrances detailed in theParticulars of Sale.
4. Conditions
(a) Settlement under this contractis conditional upon satisfaction orwaiverofthe conditionscontained in clause 5.2 of the Development Agreement in accordance with theDevelopment Agreement
Withoutlimiting the Vendor's other Tights, ifthe Purchaser has not satisfied the conditionscontained in special condition 4(a) in accordance with the Development Agreement:
(i) the Vendoris not obliged to complete settlement untilthe date that the Purchaserhas satisfied the conditions contained in special condition 4(a) in accordance withthe Development Agreement; and
(ii) the Vendor will be entitled to interest on the Balanceunder special condition 9.3,from tlie Due Date untilthe Settlement Date.
Without limiting the Vendor's other rights, ifthe Purchaser has riotsatisfied the conditionscontained in special condition 4(a)in accordance with the Development Agreement within30 days after the Due Date, the Vendorwill be entitled to immediately tenninate thiscontract by written notice to the Purchaser
5.
5.1
DepositPayment of depositThe Purchaser must pay the deposit to the Vendor's Solicitors, to the Vendor's Estate Agent, to theVendor or otherwise asthe Vendornominateswithin the time required by this contract.
Investment
The Vendor andPurchaserauthorise the Vendor's Solicitors to invest the Depositin a separateinterest-bearing trust account at a Bank and acknowledge that the Vendor's Solicitors will have noresponsibility ifthe amountinvested is lost
Tax file number
Within 7 days after the Day of Sale, the Purchaser must give the Purchaser'stax file number eitherto the Vendor's Solicitors or 10 the Bank. The Purchaser authorises the Vendor's Solicitors to givethe Purchaser's tax file number to the Bank witliwhich the Deposit it to be invested. IfthePurchaser gives its tax file number to the Bank it must, as soon as it has done so, give theVendor's Solicitors verification of this from the Bank. The Purchaser must not make any claim onthe Vendor's Solicitors for any matter arising out of or in connection with special condition 5.2 orthis special condition 5.3.
Entitlement to interest
Interest will belong to the Vendor unless the Purchaser becomes entitled to a refund of the deposit.Iftliis happens then, subject to special condition 5.5, interest will belong to the Purchaser.
Breach
Ifthe Purchaser breaches special condition 5.3, interest will belong to the Vendor even iftheFurcliaserbecomes entitled to a refund of the deposit.
Minter Ellison I Ref MEA ANS 304;684923
15672795: 8903/99_21ME_94447,92_4 (W2003x)
Civic Precinct Site, Parcel A. Contrast 01sale I page 21
Stakeholder
(a) General Condition 12.1 does notapplyto this contract.
(b) The Purchaser releases the Depositto the Vendor on the Day of Sale.
Ifthe Land is notland under the Transfer of LandAct1958 (Vic), and Special Condition3.7 is not effective and tile contract ends in accordance with General Condition 9.5, then
the Deposit and any interest must be returned to the Purchaser and neither party has aclaim againstthe other in damages
(d) When the contractis ended under General Condition 28.2, the stakeholder must pay theDeposit and any interest to the party who gave the notice under General Condition 27.
(6) many circumstance not otherwise covered by this Special Condition 5.6, the stakeholdermay (in its absolute discretion), but is not obliged to, retain the Deposit and any interestpending the outcome of any dispute, pay the Deposit and any Interest to the party whomthe stakeholder considers (acting reasonably) is entitled to the deposit, or into court
The parties hereby appointthe other antheir lawful attorney for undertaking any actionpennitted orrequired under this Special Condition 5.6, and absolve the stakeholder fromany liability for that action.
6.
6.1
Assignment and nominationNo assignmentThe Purchaser must not assign or otherwise deal with this contract or anyriglit under this contractwithoutthe prior written consent of the Vendor.
No nomination
(a) The Purchaser is not entitled to nominate a substitute or additional purchaser under thiscontract,
7.
7.1
(b)
Settlement and transfer
Settlement
The Vendoris not obliged to settle unless allmoney payable under this contract(including thebalance and any other money)is paidby the Purchaser.
Goods
Property in the Goods does not pass to the Purchaser until allmoney payable under this contract(including the balance and any other money)is paid by the Purchaser.
Settlement on Due Date
(a) The Purchaser Inustsettle before 2.00pmontheDue Date.
(b) Ifsettlementtakes place on the Due Date but, through no fault of the Vendor, at ajimelater than 2.00pm:
(1) settlement will be deemed to have takenplace on the next Business Day; and
(ii) withoutliiniting the Vendor's riglits, the Purchaser must, at settlement, pay interestunder special condition 9.3.
General Condition 18 does not apply to this contract.
Minter Ellison I Ref MEA ANS 30,3684923
15672795: 8903/99_21ME_94447t92_4 (W2003x)
Civic Precinct Site, Parcel A, Contract of sale I page 22
Failure to deliver Transfer
Ifthe Purchaser breaches General Condition 6:
(a) the Vendorwillnot be obliged to settle untillO Business Days after the date on whichthePurchaser delivers the Transfer to the Vendor's Solicitors; and
the Purchaser must, on the Settlement Date, pay interest under special condition 9.3 fromthe Due Date,
(b)
Duty documentsThe Vendor will prepare and provide at settlement any document required for assessment of dutyon this transaction relating to mattersthat are within the knowledge of the Vendor. The thirdsentence of General Condition 6 does riot apply to this contract.
Payment(a) Ally payment due under this contract must be made by a draft or cheque drawn by a Bank.
(b) General Condition 11.6 does riot apply to this contract.
8.
8. ,
FIRB approvalWarranty by PurchaserThe Purchaser warrantsto the Vendorthat:
(a) the Purchaser has notbreaclied section 26A of the Fo, ,a^n ACq!!is^t^^n cnd Takeovers Act1975 (Cth) in entering into this contract; and
the Purchaser has obtained(b)
(in) any authority of the Reserve Bank of Australia required under the Bunking(F'ore^gin Exc/, dinge) Reg!, Iuiions (Cth); and
(iv) any other approval required from any Government Agency under any other Law,
to enter into this contract.
Consequences of breachIfany of the warranties in special condition 8.1 are untrue in any way, the Purchaser witl:
(a) hemdefaultunderthiscontract; and
(without!jiniting Special Condition 10)indenimfy the Vendor against alloss mmcludingconsequentialloss) suffered by the Vendor as a result of the Vendor having relied on thewarranty.
9.
9.1
Default
Particular obligationsIf:
(a)
(b)
the Purchaser breaches special condition 5.1;
the Developer terniinates the Development Agreement pursuant to the tenns of theDevelopment Agreement; or
an insolvency Event occurs,(c)
Minte, Ellison I Ref: MEA ANS 30-6684923
95: 8903/99_21ME_94447192_4 (W2003x)
Civic Precinct Site. Parcel A. Contract of sale I page 23
General Condition 27 will not apply to this contract andthe Vendormay tenninate this contractby notice in writing to the Purchaser at any time after the breach or the insolvency Event occurs.
Ifvendorterminates
Ifthe Vendortenninatesthis contract under special condition 9.1, Special Conditionwill apply as ifthe Vendorhad given notice under General Condition 27 and this contmct hadbeentenninated by notice under General Condition 28.2.
Purchaser to pay interestIfthe Purchaser tails to pay an amount due under this contract, it must pay interest on that amountat a rate of2% per armum above the rate fixed from time to time under the Pen"14, /"!e, .esiRoiesAC!1983 (Vic) from the date on which the amount should have been paid untilthe date it is paid.The interest to be paid under this special condition 9.3 must be paid on the Settlement Date.
Time remains of the essence
The Purchaser's obligation to pay interest under special condition 9.3 does not mean that time isnot of the essence forthe pertonnance of the Purchaser's obligations under this contract.
Additional losses and expensesIfthe Purchaser breaches this contract, the Purchaser, in addition to paying interest under specialcondition 9.3, must pay orreimburse the Vendor eacliofthe following on the Settlement Date:
(a) interest, charges and other expenses payable by the Vendorunder any existing mortgage,charge or other encumbrance overthe Property* calculated from the Due Date;
(b) alllegalcosts and expenses incurred by the Vendor;
(c) penalties and any other expenses payable by tlie Vendorthrough any delay in settlementof the Vendor's purchase of another property; and
(d) ifthe Property is registered in the name of the Vendor at midnight on 31 Decemberfollowing the Due Date allofthe landtax assessed charged and levied on the Vendor inrespect of the Property after the Due Date.
The Purchaser acknowledges that each of these losses and expenses is a reasonably foreseeablelossto the Vendor for the purposes of General Condition 25(a).
Other rights unaffectedNothing in this special condition 9 limits the rights of the Vendorifthe Purchaser defaults underthis contract,
9.2
9.3
10. IndemnityThe Purchaser indemnities the Vendor against allexpenses, losses, damages and costs (on asolicitor and own client basis and whether incurred by orawarded againstthe Vendor)thattlieVendor may sustain or incur as a result, whether directly or indirectly, of any breacli of thiscontract by the Purchaser including, but notlimited to, a breach in respect of which the Vendorexercises a rightto tenninate this coniract.
I I . Registrable AgreementsThe Purchaser winexecute and deliver to the Vendor notlatertlian 7 days before the Due Date,the Registrable General Agreement and the Registrable Environmental Agreement and thePurchaser acknowledges that the Vendor will arrange for registration of these agreements on theLand and may arrange registration before the Settlement Date at its option
er Ellison I Ref: MEA ANS 30,3684923
t5672795: 8903/99_21ME_94447t92_4 (W2003x)
Civic Precinci Site. Parcel A. Contract of sale I page 2
Signing pageEXECUTEDasaDeed
The official seal of Urban Renewal
Authority Victoria is affixed in accordancewith the Urban Renewal Authority VictoriaAct2003 in the presence of:
Signature of Chief Executive Officer
Name of Chief Executive Officer(print)
The official seal of The City of GreaterDandenong is affixed in the presence of:
Signature of Authorised Officer
Name of Authorised Officer(print)
<-Signature of Secretary
Name of Secretary (print)
<-Signature of Authorised Officer
Name of Authorised Officer(print)
<--
Mimer Ellison I Rat MEA ANS 306684923
<-
t5672795: 8903/99_21ME_94447i92_4 IW2003x)
Civic Precinct Site. Parcel A. Contract of sale I page 25
AnnexureA
Registrable General Agreement
Contract of Sale
Minter EMSon I Ref: MEA ANS 30-6684923
15672795: 8903/99_21ME_94447i92 4 (W2003xj
Civic Precinct Site, Parcel A, Contract of sale I page 26
Registrable generalagreement
Urban Renewal Authority Victoria(Places Victoria)
(Owner)rise
Minter Ellison I Ref: MEA ANS 30-6684923
15672795: 890440, _21ME_94532379_s(w2003")
RCD Development Agreement - Civic Precinct Site I I page 82
Information table
Date
Parties
Name
Short form name
Notice details
Name
ABN
Short form name
Notice details
Urban Renewal Authority VictoriaPlaces Victoria
710 Collins Street, Docklands, Victoria, Australia, 3008Facsimile: (03) 8317 3666Attention: ChiefExecutive Officer
Background
nap to
Ni foblOwner
egg or
Facsimile:
Attention:
The Owner is or is entitled to be registered as proprietor of the Land.
The Owner is a party to the Development Agi. eement, under which it has agreed to enter into thisDeed.
This Deed is ariagreement under section 49 of the Urban Renewal Awlhorio, Pictoriortci2003.
The parties intend that Places Victoria may, in its discretion, register this Deed with the Registrarof Titles in accordance with section 181 of the Actso that the Owner's covenants referred to in
this Deed run with the Land.
need' IPIF efev,,,,,,, fo in icets'co
or
Minter Ellison I Ref: MEA ANS 30-6684923
15672795: 890,401_21ME_94532379_s (w2003")
RCD Development Agreement -Civic Precinct Site I I page 83
Agreed terms
I.
, .,
Defined terms and interpretation
Defined terms
In this Deed:
Act meansthe Planm^g andE, Iviro?, meritAct1987(Vic).
Deed meansthis deed and any appendices orschedules.
Developer means
Development Agreement meansthe development agreement entered into b Places Victoria andthe Developer dated toe tort forthedevelopmentoftheareaknownas[ ]of whichtheLand forms part.
Land meansthe land contained in [^!]-Owner includes any person who from time to time becomes registered or is entitled to beregistered asthe proprietor of the Land or any part of the Land.
Planning Scheme hasthe same meaning as in the Development Agreement.
Project^ocuments has the same meaning as in the Development Agreement.
State meansthe Crown in right of the State of Victoria.
InterpretationIn this Deed unless the contrary intention appears:
(a) areforenceto any statute, regulation, proclamation, ordinance, planning scheme, by-lawor local law includes all statutes, regulations, proclamations, ordinances, planningschemes, by-laws or local laws varying, consolidating orreplacing them and a reference toa statute includes allregulations, proclamations, ordinances, planning schemes, by-lawsand 1000/1aws issued under that statute;
(b) the singular includes the plural and vice versa and words importing a gender include othergenders
(c) words and expressions importing natural persons include partnerships, bodies corporate,associations, governments and governmental and local authorities and agencies;
(d) a covenant or agreement on the part of two or more persons will bind them jointly andindividually;
(e) headings are for ease of reference only and do not affectthe meaning of this Deed;
(1) other grammatical forms of defined words orexpressions have corresponding meanings;and
(g) a reference to Places Victoria includes its successors and assigns (including its successorsas responsible authority under the Act).
Minter Ellison I Ref MEA ANS 30.6684923
15672795: 890440, _21ME_945323,9_5 my2003^)
RCD Development Agreement - Civic PrecindSite I I page 84
2.
2.1
Registered agreement
Purpose of this DeedThis agreement is made under section 49 of the Urban Renewal Anthority/ICt 2003 with the intentthat the burden of the Owner's covenants run with the Land.
Places Victoria may registerPlaces Victoria, in its discretion, may apply to the Registrar of Truesto have this Deed registeredin accordance with section 181 of the Act.
Covenants Run with Land
The Owner acknowledges and agrees that any obligation imposed on the Owner under this Deedtakes effect as a covenant which is annexed to the Land and runs at Law and in equity with theLand. These obligations bindthe Owner, its successors, assigns and transferees and the registeredproprietor forthe time being of the whole or any part of the Land.
3. Commencement
This agreement will come into force and effect from the date of this Deed,
4. Ending of agreementThis agreement will end as set out in the Development Agreement, or earlier by agreement inwriting between the parties.
5.
5.1
Owner's covenants
Owner covenants
The Owner will:
(a) comply orprocure compliancewiththe Developer's obligations under the ProjectDocuments including (withoutlimitation)the obligation in the Development Agreement toretransferthe Land to Places Victoria in the eventthe Development Agreement isterminated; and
(b) not sell, transfer, dispose of, assign or otherwise part with ownership of allor part of thatLand unless and untilthe transferee has entered into an agreement with Places Victoria onsubstantially the same terms and conditions as the torrns and conditions contained in theDevelopment Agreement amended to the extent necessary to make them applicable to theinterest transferred by the Owner and any other arrangement necessary to give effecttotheintent of the parties under the Development Agreement or otherwise as agreed by theparties.
Successors in title
The Owner will riotsell, transfer, dispose of, assign, mortgage or otherwise part with possessionof all or part of the Land after execution of this Deed and before its registration at the Land TitlesOffice without first disclosing to its successorsthe existence and nature of this Deed,
RegistrationThe Owner agrees to do anthings necessary to enable Places Victoria, in its discretion, to registerthis Deed with the Registrar of Titles in accordance with section 181 of the Act.
5.3
Minter Ellison I Rat MEA ANS 30-6684923
15672795: 8904401_21ME 9453z379_s (w2003*)
RCD Development Agreement- Civic Precinct Site I I page 85
WarrantyThe Owner warrants that:
(a) it is (or is entitled to be)the registered proprietor of the Land and the beneficial owner ofthe Land;
other than as referred to in this Deed, or disclosed by the usual searches, ordisclosed inwriting to Places Victoria priorto the execution of this Deed, no other person has anyinterest either legal or equitable in the Land; and
it has obtained allnecessary authorities and consentsto bind allpersons who may haveany legal or equitable interest in the Land.
(b)
(c)
5.5 Trust
Ifthe Owner is registered proprietor of the Land as trustee of any trust, the Owner agrees that forthe purpose of this Deed it would be deemed to include each beneficiary of the trust and theOwner bindsthe trust for which it acts as trustee. The Owner warrants that it is authorised to
enter into this Deed by the tenns of the trust deed and that it has any necessary authorities orconsents forthis purpose.
Responsible Authority's covenantAs soon as reasonably practicable after the ending of this Deed Places Victoria will makeapplication to the Registrar of Titles under section 183(2) of the Act to cancelthe recording of thisDeed on the Register.
7.
7.1
General
Proper lawThis agreement is governed by and the parties submitto the jurisdiction of the Law of the State ofVictoria.
General acknowledgmentThe parties acknowledge that any obligation imposed upon Places Victoria under this Deed doesnot fetter the future exercise of any statutory discretion by Places Victoria and the provisions ofthis Deed must be read accordingly.
Further documents
The parties agree to do allthings and prepare and sign allftirther documents necessary to giveeffectto this Deed.
Dispute resolutionThe parties agree and acknowledge that section 149A of the Act applies to any dispute ordifference in anything required under this Deed to be done to the satisfaction of Places Victoria.
Notice
Any notice or document may be served on a party by:
(a) being left at or posted by prepaid letter addressed to the party at its address stated at thecommencement of this Deed (or any other address which is notified from time to time)and is conclusive Iy regarded as having been served at the expiration of 48 hours from thetime of posting; or
Minter Ellison I Rel: MEA ANS 30,6684923
15672795: 890440, _21ME 94532379_s(w2003x)
RCD Development Agreement -Civic Precincl Site I I page 86
by sending it by facsimile provided that it must be confirmed immediately in writing bythe sending party by hand delivery or prepaid post and is deemed served on the nextfollowing Business Day unlessthe receiving party has requested retransmission before theend of that Business Day.
Reading down and severabilityParlor all of any provision of this Deed that is illegal or unenforceable may be severed from thisDeed and the remaining provisions of this Deed continue in force.
No waiver
The failure of aparty at anytime to require pertonnance of any obligation under this Deed is not awaiver of that party's right:
(a) to insist on perfonnance of, or claim damages for breach of, that obligation unlessthatparty acknowledges in writing that the foilure is a waiver; and
(b) at any other time to require performance of that or any other obligations under this Deed.
8. Costs
The Owner agrees to pay the reasonable costs of Places Victoria of and incidental to this Deedand its registration. Ifa dispute arises in relation to these costs, it may be referred to the costingservice of the Law Institute of Victoriaat the parties' cost. The parties agree to be bound by thecosts as detennined under this clause.
Minter Ellison I Ref: MEA ANS 30-6684923
t5672795: 8904401_21ME_9453z379, s(w2003x)
RCD Development Agreement- Civic Precinct Site I I page 87
Signing pageEXECUTEDasadeed
The official sealof The City of GreaterDandenong is affixed in the presence of:
Signature of Authorised Officer
Name of Authorised oncer(print)
The official seal of Urban Renewal
Authority Victoria is affixed in accordancewith the Urban Renewal Authority Act 2003in the presence of:
Signature of Chief Executive Officer
<-
Name of Chief Executive Officer (print)
Signature of Authorised Officer
Name of Authorised Officer (print)
<--Signature of Secretary
Name of Secretary (print)
Minter Ellison I Rel: MEA ANS 30-6684923
15672795: 890440, _21ME_9,532379_5 N2O03")
<-
RCD Development Agreement- Civic Precinct SIIe 11 page 88
Annexure B
Registrable Environmental Agreement
Contract of Sale
Mintsr Ellison I Rel: MEA ANS 30-6684923
t5672795: 8903/99_21NE_94447i92_a IW2003x)
Civic Precinct Site, Parcel A. Contract of sale I page 27
Registrableenvironmental
agreement
Urban Renewal Authority Victoria (Places Victoria)
(Owner)
Mintsr Ellison I Ref: MEA ANS 30-6684923
t5672795: 8904401_21ME_9,532379 s UV2003")
RCD Development Agreement - Civic PrecinclSite I I page 90
Information table
Date
Parties
Name
Shortform name
Notice details
Name
ABN
Shortform name
Notice details
Urban Renewal Authority VictoriaPlaces Victoria
710 Collins Street, Docklands, Victoria, Australia, 3008
Facsimile: (03) 83 17 3666Attention: ChiefExecutive Officer
Emailaddress:
18Owner
eQft ess r, , e@
Facsimile: cribr fuel'D v @Attention: s to e
Emailaddress:
Background
go
A
K
bl
The Owner is or is entitled to be registered as proprietor of the Land.
The Owner is a party to the Development Agreement, under which it has agreed to enter into thisDeed.
The Land has been (or is to be)reinediated by the Owner.
A statement of certificate of environmental audit has been issued (or must be obtained by theOwner) forthe Land.
This agreement is an agreement under section 49 of the Urban Renewal Awlhorio, Victoriartc!2003,
The parties intend that Places Victoria may, in its discretion, register this Deed with the Registrarof Titles in accordance with section 181 of the Act so that the Owner's covenants referred to in
this Deed run with the Land.
CN@
L
M
e, @
N
o
DeP
Minler Elmson I Rat MEA ANS 30-66B4923
15672795: 890440, _21ME_94532379_5 N2O03*)
RCD Development Agreement- Civic Precinct Site I I page 91
Agreed terms
I.
I. ,
Defined terms and interpretationDefined terms
In this Deed:
Act meansthe Planning andE"17ironmen!der 1987(Vic).
Deed meansthis deed and any appendices or schedules.
Developer means us
Development Agreement meansthe development agreement entered into by Places Victoria andthe Developer dated r, forthedevelopmentoftheareaknownast e of whichtheLand forms part.
Land means the land contained in
Owner includes any personwho from time to time becomes registered or is entitled to beregistered asthe proprietor of the Land or any part of the Land.
Planning Scheme hasthe same meaning as in the Development Agreement.
Project Documents hasthe same meaning as in the Development Agreement.
State meansthe Crown in right of the State of Victoria.
InterpretationIn this Deed unless the contrary intention appears:
(a) areforenceto any statute, regulation, proclamation, ordinance, planning scheme, by-lawor local law includes all statutes, regulations, proclamations, ordinances, planningschemes, by-laws or local laws varying, consolidating or replacing them and a reference toa statute includes allregulations, proclamations, ordinances, planariing schemes, by-lawsand local laws issued under that statute;
(b) the singular includes the plural and vice versa and words importing a gender include othergenders;
(c) words and expressionsimportingnaturalpersons include partnerships, bodies corporate,associations, governments and governmental and local authorities and agencies;
(d) a covenant or agreement on the part of two or more persons will bind them jointly andindividually;
(6) headings are for ease of reference only and do not affectthe meaning of this Deed;
(f) other grammaticalfonns of defined words orexpressions have corresponding meanings;and
(g) a reference to Places Victoria includes its successors and assigns (including its successorsas responsible authority under the Act).
I. 2
,
Minter EUison I Ref: MEA ANS 30-6684923
t5672795: 890440, _21ME_94532379 5 (W2003, )
RCD Development Agreement - Civic Precinctsite I I page 92
2.
2.1
Registered agreement
Purpose of this DeedThis agreement is made under section 49 of the Urban Renewal/I"Ihorio? PIbioria, 4ct 2003 withthe intentthatthe burden of the Owner's covenants run with the Land,
Places Victoria may registerPlaces Victoria, in its discretion, may apply to the Registrar of Titles to have this Deed registeredin accordance with section 181 of the Act.
Covenants Run with Land
The Owner acknowledges and agrees that any obligation imposed on the Owner under this Deedtakes effect as a covenantwhich is annexed to the Land and runs at Law and in equity with theLand. These obligations bindthe Owiier, its successors, assigns and transferees and the registeredproprietor forthe time being of the whole or any part of the Land.
3. Commencement
This agreement will come into force and effectftom the date of this Deed.
4. Ending of agreementThis agreement runs with the Land with no limitation as to time.
5.
5.1
Ownerscovenants
Successors in title
The Owner will riotsell, transfer, dispose of; assign, mortgage or otherwise partwith possessionof all or part of the Land after execution of this Deed and before its registration at the Land TitlesOffice without first disclosing to its successors the existence and nature of this Deed.
RegistrationThe Owner agrees to do anthings necessary to enable Places Victoria, in its discretion, to registerthis Deed with the Registrar of Titles in accordance with section 181 of the Act.
Reinediation
(a) The Owner agrees that if, as part of any development on or of the Land, it is required ordirected to undertake clean up orremediation measures including but notlimited toremoving, dispensing, destroying, disposing of; abating, neutralismg ortreating anypollutant, Contaminant, waste, substance or environmental hazard in relation to the Land,or any part of it, it will do so at its own cost and:
(i) it will not make any claim or demand on the State in any of its capacities or PlacesVictoria, its officers and agents in relation to any of the Owner's costs, expenses orlosses incurred in taking the clean up orremediation measures; and
(ii) it will indemnify the State in allofits capacities and Places Victoria its officersand agents against any claims or demands made by any person relating to thecosts, expenses or losses of any such clean up or reinediation measures,
Mintsr Ellison I Rel; MEA ANS 30-6684923
15672795: 8904401_21ME_9,532379_s (\v2003")
RCD Development Agreement- Civic PrecinclSite I I page 93
Clause 5.3(a) does not apply to the extentthatthe presence of any pollutant, Contaminant,waste, substance or environmental hazard referred to in clause 5.3(a) was caused orcontributed to by Places Victoria after the date of this Deed.
WarrantyThe Owner warrantsthat:
(a) it is (oris entitled to be)the registered proprietorofthe Land and the beneficial owner ofthe Land;
(b) other than as referred to in this Deed, or disclosed by the usual searches, ordisclosed inwriting to Places Victoria priorto the execution of this Deed, no other person has anyinterest either legal or equitable in the Land; and
(0) it has obtained all necessary authorities and consents to bind allpersons who may haveany legal or equitable interest in the Land.
Trust
Ifthe Owner is registered proprietor of the Land as trustee of anytrust, the Owner agrees that forthe purpose of this Deed it would be deemed to include each beneficiary of the trust and theOwner binds the trust for which it acts astrustee, The Owner warrants that it is authorised to
enter into this Deed by the terms of the trust deed and that it has any necessary authorities orconsents forthis purpose.
6.
6.1
General
Proper lawThis agreement is governed by and the parties submitto the jurisdiction of the Law of the State ofVictoria.
General acknowledgmentThe parties acknowledge that any obligation imposed upon Places Victoria under this Deed doesnot fetter the future exercise of any statutory discretion by Places Victoria and the provisions ofthis Deed must be read accordingly.
Further documents
The parties agreeto do allthings and prepare and sign all further documents necessary to giveeffect to this Deed.
Dispute resolutionThe parties agree and acknowledge that section 149A of the Act applies to any dispute ordifference in anything required under this Deed to be done to the satisfaction of Places Victoria.
Notice
Any notice or document may be served on a party by:
(a) being left at or posted by prepaid letter addressed to the party at its address stated at thecommencement of this Deed (or any other address which is notified from time to time)and is conclusiveIy regarded as having been served at the expiration of 48 hours from thetime of posting; or
(b) by sending it by facsimile provided that it must be confinned immediately in writing bythe sending party by hand delivery or prepaid post and is deemed served on the next
6.5
Minter EUison I Rel: MEA ANS 30-6684923
15672795: 890440, _21ME_9,532379_s (w2003")
RCD Development Agreement - Civic Precinct Site 11 page 94
following Business Day unless the receiving party has requested retransmission before theend of that Business Day.
Reading down and severebilityPart or all of any provision of this Deed that is illegal or unenfbrceab!e may be severed from thisDeed and the remaining provisions of this Deed continue in force.
No waiver
The failure of a party at anytime to require pertonnance of any obligation under this Deed is not awaiver of that party's right:
(a) to insist on perfomiance of, or claim damages for breach of, that obligation unlessthatparty acknowledges in writing that the failure is a waiver; and
(b) at any other time to require perforrnance of that or any other obligations under this Deed.
6.6
Costs
The Owner agrees to pay the reasonable costs of Places Victoria of and incidental to this Deedand its registration. Ifa dispute arises in relation to these costs, it may be referred to the costingservice of the Law Institute of Victoria at the parties' cost. The parties agree to be bound by thecosts as deterrnined under this clause.
Minter Ellison I Ref: MEA ANS 30,668,923
15672795: 8904401_21ME_9,532379_5 (W2003")
RCD Development Agreement- Civic Precinct Site I I page 95
Signing pageEXECUTEDasadeed
The official seal of The City of GreaterDandenong is affixed in the presence of:
Signature of Authorised Officer
Name of Authorised Officer(print)
The officialseal of Urban Renewal
Authority Victoria is affixed in accordancewith the Urban Renewal Authon'tyAct 2003in the presence of:
Signature of Chief Executive Officer
Name of Chief Executive Officer (print)
<-Signature of Secretary
Name of Secretary (print)
Minter Ellison I Rat MEA ANS 30-6684923
15672795: 8904401_21ME, 94532379, s(w2003")
<-
RCD Development Agreement- Civic Precinct Site I I page 96
Schedule 8 - RCD Urban Master Plan
A copy of the VicUrbanMaster Plan 010vember2007)is available for viewing on the RevitalisingDandenong Website:
WWW. revitalisingcentraldandenong. coin. au
Minter Ellison I Ref: MEA ANS 30-668,923
t5672795: 8904401_21ME 9453237Q S IW2003xjRCD Development Agreement - Civic Precinct Site I I page 79
Schedule 9
INSURED SUM:
Public Liability
Workers' Compensation
Professional indemnity
MotorVehicle Liabilities
^ Insurance
Each insured sum must be increased by the amount ofGST payable by the insured on the settlement ofany claim.
$20 million
Asrequired by law
$10 million
Third party cover and replacement value
Mintsr Ellison I Rat MEA ANS 30-6684923
t5672795: 8904401_21ME 9453z379 5 Iw2003"IRCD Development Agreement- Civic Precinct Site I I page 80
