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CONTRACT
FOR THE SALE AND PURCHASE OF LAND
(NON-RESIDENTIAL)
BOWDEN LOT 52, PARK TERRACE
SALE OF LAND CONTRACT Between:
The person/s named in Item 1 of the Schedule (Vendor) - and -
The person/s named in Item 2 of the Schedule (Purchaser)
TERMS
1. On and subject to the terms of this contract, the Vendor agrees to sell to the Purchaser who agrees to purchase from the Vendor the following (Assets) for the amount/s (before adjustments and subject to Part 8 of the Standard Terms for the Sale of Land) stated in Item 7 of the Schedule (Price):
1.1 the estate or interest in land described in Item 3 of the Schedule (Land); and
1.2 any property described in Item 4 of the Schedule (Included Property),
but always excluding any property described in Item 5 of the Schedule (Excluded Property).
2. This contract is comprised of this document and the following documents:
2.1 the Schedule now annexed, and any documents incorporated by reference therein;
2.2 the Standard Terms for the Sale of Land issued by The Law Society of South Australia now annexed; and
2.3 any Annexures now annexed, and any documents incorporated by reference therein.
3. This contract may be executed in any number of counterparts, and by the parties in separate counterparts but, if executed in counterparts, is not effective until each party has executed at least one counterpart and those counterparts have been exchanged or delivered to the other party. An executed counterpart may be delivered by any means this contract allows for the giving of notices. Each counterpart constitutes an original of this contract, but the counterparts together constitute one and the same contract.
4. A person signing this contract on behalf of a party warrants that the person has authority to bind that party for that purpose.
Dated the day of 2017 Vendor/s Purchaser/s Signed for and on behalf of Urban Renewal Authority by its duly Authorised Officer
Executed by ………………….. in accordance with the Corporations Act 2001:
In the presence of:
Signature of Witness Director
Full name of Witness Director/Secretary
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SCHEDULE
ITEM 1: VENDOR/S Name/s: Urban Renewal Authority
ACN / ABN / ARSN (if any): ABN 86 832 349 553
Mailing address: Level 9, West Riverside Centre, North Terrace, Adelaide SA 5000
Ph: Email:
ITEM 2: PURCHASER/S Name/s:
ACN / ABN / ARSN (if any):
Mailing address:
Ph: Email: (If not otherwise stated, any 2 or more Purchasers will be deemed to purchase the Land as joint tenants)
ITEM 3: LAND An estate in fee simple in the whole of the land comprised in the whole of the land comprised in Allotment 52 in the Draft Plan of Division attached in Annexure B being the whole of the land in Certificates of Title Volume 5732 Folio 821, Volume 5807 Folio 476 and Volume 6183 Folio 367 and portion of the land comprised and described in Certificate of Title Volume 5732 Folio 812 Street address (if any): Lot 52, Park Terrace, Bowden SA 5007
ITEM 4: INCLUDED PROPERTY (Personal property included in the Sale) ☐ Floor coverings (fixed) ☐ Light fittings ☐ Window treatments ☐ Air-conditioner ☐ Clothes line ☐ TV antenna / satellite dish ☐ Free-standing spa / pool ☐ Whitegoods ☐ Solar electricity panels ☐ Kerbside rubbish bins ☐
Other – All buildings, structures and any other fixed improvements on and in the Land (subject to Item 5 below)
ITEM 5: EXCLUDED PROPERTY All of the Vendor’s and third parties’ plant, equipment, chattels and other items on or in the Land and any item or asset which is the property of any Authority or service provider.
ITEM 6: TENANCIES, EXCEPTIONS AND RESERVATIONS See Annexure A – Special Conditions
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ITEM 7: PRICE/S Land: $ Included Property: $ GST (if applicable): $ Total: $
ITEM 8: DEPOSIT
ITEM 9: BALANCE (including GST, if applicable)
ITEM 10: DEPOSIT HOLDER Name/s:
ACN / ABN / ARSN (if any):
Mailing address:
Ph: Email:
ITEM 11: DATE FOR SETTLEMENT Subject to the satisfaction or waiver (as the case may be) of the conditions the subject of Special Condition 5.1, settlement under this Contract will occur on the earlier of: a) 15 Business Days from the date that the last of the conditions in Special Condition 5.1
is satisfied or waived; or
b) such other date as mutually agreed between the Vendor and Purchaser in writing.
ITEM 12: WATER ALLOWANCE (Clause 23) $ If nothing stated, $400.00.
ITEM 13: STATUTORY NOTICES (Clause 15) (1) Those to be discharged by the Vendor: Nil (2) Those to be discharged by the Purchaser: Nil
ITEM 14: REGULATORY REQUIREMENTS (Clause 5) (1) To be obtained by the Vendor: See Annexure A – Special Conditions Period within which to be obtained: Not Applicable (2) To be obtained by the Purchaser: See Annexure A – Special Conditions Period within which to be obtained: Not Applicable
ITEM 15: ☒ Annexure A - Special Conditions ☒ Annexure B - Draft Plan of Division ☒ Annexure C - Allotment Control Plan ☒ Annexure D - Developer Site Signage Guidelines ☒ Annexure E - Developer Encumbrance
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☒ Annexure F - Subsequent Building Allotment Encumbrance ☒ Annexure G - Car Parking Agreement ☒ Annexure H - Deed of Guarantee and Indemnity
ITEM 16: GST [Mark only 1 box below as "Yes" Yes (a) is not a taxable supply, as the Vendor is not, and is not required to be,
registered for GST. ☐
(b) is a taxable supply of real property, with the margin scheme under GST Law Division 75 not to apply.
☒
(c) is a taxable supply of real property, to which the margin scheme under GST Law Division 75 applies.
☐
(d) is a taxable supply of commercial residential premises. ☐
(e) is a taxable supply of residential premises to which GST Law section 40-65(2) applies.
☐
(f) is an input taxed supply of residential premises to be used predominantly for residential accommodation to which GST Law section 40-65(1) applies and section 40-65(2) does not apply.
☐
(g) is GST-free as a supply of a going concern under GST Law section 38-325. ☐
(h) is GST-free as a supply of potential residential land subdivided from farm land to which GST Law section 38-475 applies
☐
(i) is GST-free as a supply of farm land supplied for a farming business to which GST Law section 38-480 applies.
☐
(j) is a supply that is partly taxable and partly non-taxable. The GST exclusive values of those respective supplies are as follows:
☐
Taxable Supply Description of Property: GST exclusive value
$
Non-Taxable Supply Description of Property: GST exclusive value
$
Total $
Note – total is to be the same as the total of Price/s in Item 7
ITEM 17: ELECTRONIC CONVEYANCING Subject to Part 12, settlement and lodgement for registration of any transfer of the Land to the Purchaser (together with discharge of any mortgage of the Land this contract requires be discharged and any new mortgage of the Land to be granted by the Purchaser) will be effected electronically in accordance with the Electronic Conveyancing National Law (South Australia): ☐ Yes ☐ No
ITEM 18: ANCILLARY CONTRACT/S (Part 9 – Ancillary Contracts) 1) Those to be assigned by the Vendor:
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2) Those to be held in trust for the Purchaser by the Vendor:
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STANDARD TERMS FOR THE SALE OF LAND
PART 1 – PRELIMINARY
1. DICTIONARY
In this contract:
ADI means an authorised deposit-taking institution (within the meaning of the Banking Act 1959 (Cth))
Ancillary Contract
means, as applicable, any contract to which the Vendor is party or by which the Vendor is bound:
a) for a Tenancy – and includes any guarantee, indemnity or bond held as security for a Tenant's performance;
b) for the hire, lease, hire-purchase or bailment of any goods in Included Property and/or any PPS lease (within the meaning of the Personal Property Securities Act 2009 (Cth)) in respect of that Included Property, but only if such contract is specified in Item 4;
c) for any mortgage, easement, encumbrance or restrictive covenant in relation to the Land (and so far as concerns the Land) that is a Permitted Interest and so not required to be discharged at or before Settlement;
d) in relation to the Land (and so far as concerns the Land) made under section 37A of the Aboriginal Heritage Act 1988, section 50(2), section 57 or section 57A of the Development Act 1993, section 59 of the Environment Protection Act 1993, section 32 of the Heritage Places Act 1993, section 23 of the Native Vegetation Act 1991, or section 58, section 59 or section 61 of the Mining Act 1971 and not required to be discharged at or before Settlement; and
e) any other ancillary contracts specified in Item 18.
Also included is the benefit of any consumer guarantee under the Australian Consumer Law / Australian Consumer Law (SA) in relation to any goods in Included Property or any construction work done to the Land.
Assets mean the following individually and collectively:
a) the Land, and any part of that Land; and
b) the Included Property (if any),
but always excluding any Excluded Property.
Bank Cheque means a cheque drawn by an ADI upon itself.
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Bank Guarantee means an unconditional, irrevocable guarantee or bond by an ADI in favour of the Vendor and with a expiry date not earlier than 30 calendar days after the Date for Settlement and otherwise in a form acceptable to the Vendor acting reasonably.
Business Day means a day other than:
a) a Saturday, Sunday;
b) a day which is a public holiday in South Australia (within the meaning of the Holidays Act 1910); or
c) a day that falls between Christmas Day and the next following New Year's Day.
Business Hours mean the hours between 9:00 am and 5:00 pm (South Australian time) on a Business Day.
Clearance Certificate
means a certificate issued under s14-220 of Schedule 1 of the TA Act which remains current at the Date of Settlement.
Client Authorisation
has the meaning given in section 240A of the RPA.
Conveyancing Transaction, Electronic Workspace, Lodgment Case, Representative, Responsible Subscriber, and Subscriber
have the meaning given in the Participation Rules last determined by the Registrar-General under the EC Law.
Cooling-off Period
means the period on and from the Execution Date to the expiration of the prescribed time (within the meaning given in section 5 of the Land and Business (Sale and Conveyancing) Act 1994).
Date for Settlement
means the date specified in Item 11 or as the parties may agree in writing.
Date of Settlement
means the date Settlement occurs.
Default Rate means at any time 2% per annum above the last published BankSA Variable Business Loan Rate or, if such rate does not exist, 10%.
Deposit means a deposit of the amount stated in Item 8 paid by or on behalf of the Purchaser.
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Deposit Holder means a person named in Item 10 or, if no person is named, means the Vendor.
EC Law means the Electronic Conveyancing National Law (South Australia) as defined in the Electronic Conveyancing National Law (South Australia) Act 2013.
Excluded Property
means individually and collectively any asset specified in Item 5.
Execution Date means the date this contract was executed by the last of the parties.
GST, adjustment, adjustment note, approved valuation, commercial residential purposes, creditable acquisition, enterprise, GST-free, input tax credit, input taxed, margin, margin scheme, new residential premises, residential premises, supply of a going concern, tax invoice, and taxable supply
have the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Law).
Included Property
means individually and collectively:
a) the Vendor's rights and benefits under any Ancillary Contract that remain due to be enjoyed after Settlement;
b) any consent, approval, licence or permit held by the Vendor from government for the occupation, use, enjoyment or development of the Land; and
c) that property (if any) stated in Item 4.
Instrument means, as regards a dealing with the Land this contract requires or allows, an instrument as defined in section 3(1) of the RPA.
Item means an item in the Schedule. If no particulars are stated in an Item, that Item must be read as if 'nil' or 'not applicable' (as the context allows) was stated in that Item.
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Land means the estate or interest in land stated in Item 3, including any:
a) easements, rights, privileges and other appurtenances referred to in the certificate or other muniment of title for that land;
b) improvements or fixtures on that land on the Execution Date to the extent not Excluded Property; and
c) if the Land is sold subject to any Tenancy, the Vendor's right, title, estate and interest under that Tenancy as at and from Settlement.
Lawyer means, as regards a party, a legal practitioner under the Legal Practitioners Act 1981 or a registered conveyancer under the Conveyancers Act 1994 acting for that party in the Sale.
LTO means the Lands Titles Registration Office as constituted under the RPA.
Permitted Interest
means any of the following, as applicable:
a) restrictions under planning, development or heritage legislation;
b) any statutory easement in favour of government or a public utility;
c) any statutory charge or lien to secure payment of rates or taxes, so long as the liability or debt it secures is not overdue;
d) any estate or interest registered on the certificate or other muniment of title to the Land on the Business Day before the Execution Date and any exceptions or reservations referred to therein, and not by the terms of this contract required to be discharged prior to or at Settlement;
e) if the Land is or includes, or will at Settlement include, a unit under the Strata Titles Act 1988 or a lot under the Community Titles Act 1996, easements imported under that legislation as applicable;
f) a matter stated in Item 6;
g) any statutory encumbrance (of the meaning given in section 223LA(1) of the RPA) required to give effect to a dealing with the Land this contract requires or allows;
h) the terms and conditions of any Ancillary Contract to be assigned by the Vendor to the Purchaser under this contract; and
i) any estate or interest created by this contract in favour of the Purchaser.
Price means, in relation to an Asset, the price stated against it in Item 7 including the Deposit but before any GST applicable.
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Purchaser means the person/s named in Item 2 and, if more than 1, means each of them jointly and severally.
Regulatory Requirement
means an approval, certificate, consent, authorisation or permit required to be issued by government or a government instrumentality, such as:
a) a consent by a relevant authority under the Development Act 1993;
b) a consent by a Minister under the Crown Land Management Act 2009 or the Pastoral Land Management and Conservation Act 1989;
c) a division of land under the Community Titles Act 1996, the RPA or the Strata Titles Act 1988;
d) if the Takeovers Act applies to the Purchaser's acquisition of the Land, the grant of an exemption certificate, issue of a no objection notification, or the Treasurer losing power to make an order or decision under Division 2 of Part 3 of the Takeovers Act in relation to the acquisition.
RPA means the Real Property Act 1886.
Sale means the sale and purchase of the Assets this contract contemplates.
Schedule means the schedule immediately preceding these terms or referencing these terms.
Settlement means settlement of the Sale.
Statutory Notice means, as regards the Assets, any:
a) agreement, claim, declaration, demand, direction, notice, order or demand with or issued by a government, government instrumentality or regulatory body that would be required to be disclosed in a Form 1 – Vendor's Statement under section 7 of the Land and Business (Sale and Conveyancing) Act 1994; and / or
b) application made under the Encroachments Act 1944.
TA Act means the Tax Administration Act 1953 (Cth).
Takeovers Act means the Foreign Acquisitions and Takeovers Act 1975 (Cth).
Tenancy means a tenancy, lease or licence to occupy the Land (or part of the Land) specified in Item 6, and Tenant has a corresponding meaning.
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Third Party Interest
means a trust, mortgage or charge, and:
a) in case of the Land, includes a lease, licence to occupy, restrictive covenant, profit à prendre, easement, caveat, decree or order of Court (including a decree or order a memorial of which has been entered against the Land under section 105 of the RPA); and
b) in case of Included Property, includes any lien, pledge and any security interest (within the meaning given in the Personal Property Securities Act 2009 (Cth)).
Vendor means the person/s named in Item 1 and, if more than 1, means each of them jointly and severally.
Withholding Amount
means the amount determined under s14-200(3)(a) of Schedule 1 of the TA Act in respect of the sale, or such lesser amount as may be specified in a variation notice under s14-235 of Schedule 1 of the TA Act, a copy of which notice has been provided to the Purchaser prior to settlement.
Expressions defined elsewhere in this contract have that meaning.
Subject to all the above, expressions in this contract have the same meaning as in a provision of the RPA that deals with the same matter.
2. INTERPRETATION
In this contract: neuter includes masculine and feminine; singular includes plural and vice versa; reference to a person includes a body politic or corporate, an individual and a partnership and vice versa; reference to a party includes a successor to the rights or obligations of that party under this contract; headings do not affect construction; no rule of construction applies to the disadvantage of a party because that party put forward this contract or any portion of it; another grammatical form of a defined word has a corresponding meaning; references to time mean legal time in South Australia; reference to legislation includes the legislation as amended, any substituted legislation, any subordinate legislation under that legislation, and any orders under that legislation; reference to any subordinate legislation includes that subordinate legislation as amended, any substituted subordinate legislation; reference to a section of legislation or a regulation of subordinate legislation includes a section or regulation that substitutes that section or regulation.
3. SEVERANCE
If a provision of this contract would, but for this clause 3, be unenforceable:
3.1 the provision must be read down to the extent necessary to avoid that result; or
3.2 if the provision cannot be read down to that extent, it must be severed without affecting the validity and enforceability of the remainder of this contract.
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PART 2 – THE SALE
4. COOLING-OFF
If the Purchaser rescinds this contract under section 5 of the Land and Business (Sale and Conveyancing) Act 1994, the Vendor may retain from any Deposit paid only the amount section 5(4) of that Act allows.
5. REGULATORY REQUIREMENTS
5.1 A dealing with the Assets the subject of this contract is not effective pending the satisfaction of any Regulatory Requirement without which that dealing would contravene any legislation.
5.2 A party under this contract given responsibility to attempt to satisfy a Regulatory Requirement must use reasonable endeavours to satisfy that Regulatory Requirement within the time this contract may require (or, if no period is specified in Item 14, within 20 Business Days from the Execution Date) and before Settlement.
5.3 Neither party may hinder the satisfaction of a Regulatory Requirement.
5.4 A party who becomes aware that a Regulatory Requirement is satisfied or becomes incapable of being satisfied must, within 2 Business Days, in writing, notify the other party.
5.5 A Regulatory Requirement is not satisfied if:
5.5.1 issued or obtained upon terms and conditions not acceptable to the parties acting reasonably; or
5.5.2 it is the subject of an appeal or judicial review, brought reasonably, and not finally disposed of.
If a Regulatory Requirement is not satisfied within time, a party not in default under clause 5.2 may terminate the Sale upon giving at least 10 Business Days' written notice to the other party, in which case the Sale terminates upon expiry of that notice period unless the Regulatory Requirement is satisfied in the meantime.
6. TERMINATION FOR DEFAULT
6.1 If, before or at Settlement, a party (Party 1) defaults in that party’s observance or performance of this contract, the other party (Party 2) may give a written notice of default (Default Notice) to Party 1.
6.2 A Default Notice:
6.2.1 may be given at any time after the default occurs and before its remedy; 6.2.2 is without prejudice to any other rights or remedies Party 2 may have; 6.2.3 must identify the default (giving reasonable details); 6.2.4 must require Party 1 to remedy the default within 3 Business Days from
the service of the notice for a pre-Settlement default, or within such longer period as Party 2 may specify in the notice;
6.2.5 if the default occurred at Settlement, must appoint a time during Business Hours for Settlement and require Party 1 to settle at the time specified in the notice (it being agreed that, if such time is not less than 14 days after the date of service of such notice, then such period of notice will be deemed fair and reasonable and Party 1 shall be precluded from raising any objection to such period of notice);
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6.2.6 may state that, unless the default is remedied within the period specified in the notice, Party 2 may terminate the Sale by written notice to that effect to Party 1; and
6.2.7 may be given on more than one occasion.
6.3 Party 2 may recover from Party 1 as a debt:
6.3.1 $900 (plus GST) towards the costs of preparing any (each) Default Notice; plus
6.3.2 the reasonable cost of serving any (each) Default Notice, and 6.3.3 Party 1 must pay or credit such sum to Party 2 at Settlement or on
termination of the Sale.
6.4 Time is of the essence in respect of any period of time specified in a Default Notice.
6.5 If the Vendor is Party 2, the Vendor need not first tender a transfer or other conveyance of the Assets to Party 1 before terminating the Sale or before exercising any other rights or remedies of the Vendor.
6.6 If the Vendor terminates the Sale under this clause 6, the Vendor may elect to either:
6.6.1 retain the Assets and sue the Purchaser for damages for breach of contract; or
6.6.2 resell the Assets together or in lots and the deficiency, if any, in price upon the resale together with all reasonable costs and expenses incidental to the resale, any attempted resale and the Purchaser's default must immediately after the resale be made good by the Purchaser; and
(a) in the case of non-payment of the deficiency, costs and expenses, the whole thereof is recoverable by the Vendor as liquidated damages (minus any Deposit paid and forfeited) only if legal proceedings for the recovery are commenced within 12 calendar months after termination of the Sale;
(b) the Vendor is entitled to any increase in price on any resale. 6.6.3 If the Purchaser terminates the Sale under this clause 6, the Purchaser
may sue the Vendor for damages for breach of contract only if legal proceedings for the recovery of the damages are commenced within 12 calendar months after termination of the Sale.
7. UNWINDING THIS CONTRACT
If the Sale terminates before Settlement, within 5 Business Days:
7.1 the Deposit Holder (or failing the Deposit Holder, the Vendor) must repay the Deposit to the Purchaser except that, if the Vendor terminated the Sale under clause 6, the Deposit is forfeited absolutely to the Vendor (despite any rule of common law or principle of equity to the contrary);
7.2 conditional upon repayment of the Deposit to the Purchaser, if repayable to the Purchaser, the Purchaser must cause to be withdrawn any caveat or priority notice the Purchaser or a third party claiming through or under the Purchaser caused to be lodged at the LTO in relation to the Land to protect the Purchaser's rights under this contract or that third party's derivative rights,
and otherwise neither party has further rights against the other in connection with this contract, except in respect of prior default under this contract.
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PART 3 – TITLE
8. THE LAND
The Land, as offered for sale by the Vendor and inspected by the Purchaser, is the same as that described in Item 3.
9. EVIDENCE OF TITLE
9.1 The certificate of title under the RPA or other muniment of title in the name of the Vendor (or the other person named in Item 1 as owner of the Land) is conclusive evidence of title to the Land.
9.2 The Purchaser is not entitled to an abstract of title, nor to take any objection thereto nor to make any requisition thereon, and no evidence of the identity of the Land is required other than that afforded by comparison of the description in this contract with that in the certificate of title.
9.3 Any error, omission or improper or imperfect description of the Land:
9.3.1 will not rescind the Sale or affect the obligation of the parties to settle on the Date for Settlement; and
9.3.2 if notified by a party to the other before Settlement, but not afterwards, entitles compensation to be received or paid by one party to the other, as the case may require.
10. VENDOR WARRANTIES AS TO TITLE
The Vendor warrants that, at Settlement, the Vendor will have:
10.1 or be entitled to have, indefeasible title to the Land (if the Land is under the provisions of the RPA); and
10.2 the right to sell and transfer the Assets to the Purchaser under this contract free of any Third Party Interest, disregarding any Permitted Interest.
Except as expressly stated in this contract, the Vendor makes no representation or warranty in connection with the Assets, the Sale or anything else.
11. CAVEAT OR PRIORITY NOTICE
If before Settlement:
11.1 the Purchaser (or a third party claiming through or under the Purchaser) causes to be lodged a caveat or priority notice under the RPA to protect the Purchaser's rights under this contract or that third party's derivative rights; and
11.2 the Vendor so requires by written notice to the Purchaser,
the Purchaser must cause the caveator or third party, in a timely manner and in proper form, to consent to or permit the registration before Settlement of any dealing/s with the Land this contract expressly allows or requires.
PART 4 – RISK
12. CONDITION OF THE ASSETS
The Purchaser accepts the Assets:
12.1 subject to any Permitted Interest; and
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12.2 in that condition and state of repair and subject to any defects (known or unknown) as at the Execution Date, and subject to fair wear and tear.
13. RISK AND USE OF THE LAND
13.1 Subject to clause 13.2, on and from the Execution Date the Assets shall be at risk of the Purchaser.
13.2 If and for so long as between the Execution Date and Settlement the Vendor or a third party occupies or uses any of the Assets, the Vendor must ensure the Vendor or that third party takes reasonable care of such Assets.
13.3 Subject to clause 13.2, if before Settlement there occurs any loss, damage, destruction, dilapidation, infestation or mechanical breakdown of the Assets from any cause:
13.3.1 the Sale is not affected; and 13.3.2 the Purchaser is not entitled to damages or a reduced Price.
13.4 On and from the Execution Date, the Purchaser must indemnify and hold harmless the Vendor against all liability in respect of the Assets, except to the extent caused or contributed to by the Vendor’s wilful act, negligence or default under this contract or failure to take reasonable steps to mitigate such liability. The Purchaser’s indemnity under this clause 13.4 is a continuing obligation, except if this contract is terminated prior to Settlement occurring, in which case the Purchaser’s indemnity under this clause 13.4 ceases on the date of termination.
PART 5 – STATUTORY NOTICES
14. EXISTING STATUTORY NOTICES
14.1 The Vendor warrants that, on the Execution Date, no Statutory Notice exists which has not been fully complied with or which adversely affects the Assets, except any stated in Item 13.
14.2 If a matter is referred to in Item 13(1):
14.2.1 before Settlement, the Vendor must comply with that matter; and 14.2.2 on and from Settlement, as a continuing obligation, the Vendor must
indemnify and hold harmless the Purchaser and the Purchaser’s successors in title against all liability in respect of that matter due to be observed or performed before Settlement.
14.3 If a matter is referred to in Item 13(2):
14.3.1 after Settlement, the Purchaser must comply with that matter; and 14.3.2 on and from Settlement, as a continuing obligation, the Purchaser must
indemnify and hold harmless the Vendor against all liability in respect of that matter due to be observed or performed after Settlement.
15. NEW STATUTORY NOTICES
If, after the Execution Date, a Statutory Notice is given or made:
15.1 before Settlement, the Purchaser must comply with that Statutory Notice;
15.2 and before Settlement the Vendor complies with that Statutory Notice, the Purchaser must reimburse the Vendor upon demand or, if no prior demand is made, at Settlement, all reasonable amounts paid by the Vendor in complying with that Statutory Notice; and
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15.3 on and from Settlement, as a continuing obligation, the Purchaser must indemnify and hold harmless the Vendor against all liability in respect of that Statutory Notice.
PART 6 – DEPOSIT
16. DEPOSIT TO BE PAID
The Purchaser must pay the Deposit to the Deposit Holder at the time stated in Item 8.
17. INVESTMENT OF THE DEPOSIT
17.1 If the Deposit is provided by cheque or in clear funds and the parties so require in writing, pending Settlement the Deposit Holder must invest the Deposit in the joint names of the parties with an ADI at 14-day call at a current rate of interest.
17.2 If the Deposit is to be invested pending Settlement, on or as soon as practicable after the Execution Date each party must provide its Australian tax file number or Australian business number to the Deposit Holder.
17.3 If a party fails to comply with clause 17.2 and the other party becomes entitled to the Deposit, the first party must compensate the other party for any tax deducted from interest earned on the Deposit.
17.4 The Deposit Holder must pay the interest accrued on the Deposit (net of any proper costs or expenses in investing the Deposit):
17.4.1 if a party terminates the Sale under clause 6 - to that party; 17.4.2 if the Deposit is repaid to the Purchaser - to the Purchaser; or 17.4.3 at Settlement – in equal amounts to the Vendor and the Purchaser.
PART 7 – PRICE
18. PRICE ADJUSTMENTS
The Price/s stated in the Schedule are subject to adjustment as this contract requires.
19. ADJUSTMENT FOR INCOME
19.1 Subject to clause 21, all rents, fees and other income arising from the Assets are to be adjusted to midnight on the day before the Date of Settlement.
19.2 Income is taken to accrue on a daily basis.
19.3 If a payment of income includes or would include an amount on account of GST the Vendor was or is liable to pay, only the net amount of such payment of income is to be adjusted.
19.4 If income to be adjusted is not exclusively referable to the Assets, only a portion of that income is to be adjusted as agreed in writing by the parties or, failing such agreement, in the proportion that the Price bears to the total market values of the income-producing properties to which the income is referable.
20. ADJUSTMENT FOR OUTGOINGS
20.1 Subject to clause 21, all outgoings (including any for utilities, State or municipal rates, levies, taxes, charges) in respect of the Assets are to be adjusted to midnight on the day before the Date of Settlement.
20.2 Outgoings are taken to accrue on a daily basis.
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20.3 Any remission of a rate, levy, tax or charge the Vendor received, or is entitled to receive, is to be disregarded.
20.4 Land tax is to be adjusted as if the Land was the only land owned by the Vendor.
20.5 Before or immediately following Settlement, the Vendor must pay and discharge all land tax that has or will become payable in respect of the Land in the rating year in which Settlement occurs and in all previous rating years. Such land tax must be paid whether the tax is then due and payable or not.
20.6 Only outgoings not recoverable from a Tenant are to be adjusted.
20.7 An outgoing to be adjusted must first have deducted any GST input tax credit allowed or allowable to the Vendor in respect of that outgoing.
20.8 If an outgoing to be adjusted is not exclusively referable to the Assets, only a portion of that outgoing is to be adjusted as agreed in writing by the parties or, failing such agreement, in the proportion that the capital value of the Land (within the meaning given in the Valuation of Land Act 1971) bears to the total capital values of the properties to which the outgoing is referable.
20.9 If the quantum of an outgoing has not been determined by the date being 5 Business Days before Settlement, then the parties agree that the relevant adjustment of outgoings will be based on the outgoings quantum for the previous year.
21. ADJUSTMENTS IF SETTLEMENT IS POSTPONED
21.1 If Settlement is postponed only by reason of the Vendor’s default:
21.1.1 income is adjusted to midnight on the day before the Date for Settlement; and
21.1.2 outgoings will be adjusted pursuant to clause 20.
21.2 If Settlement is postponed only by reason of the Purchaser's default:
21.2.1 income will be adjusted pursuant to clause 19; and 21.2.2 outgoings are adjusted to midnight on the day before the Date for
Settlement.
22. WATER CHARGE ADJUSTMENT
The cost or charge for the consumption of water upon the Land is to be adjusted under clause 20.1 as follows:
22.1 where more than 1 official meter reading of water supplied is obtained, the meter reading made on the day nearest to the Date for Settlement is to be used;
22.2 if an official meter reading has not been obtained by either party at least 3 Business Days prior to the Date for Settlement, no later than Settlement the Vendor must instruct the Vendor’s Lawyer to withhold in trust after Settlement the sum stated in Item 12. Upon the official meter reading being obtained:
22.2.1 that Lawyer must pay to the Purchaser the amount, if any, payable by the Vendor to the Purchaser for water consumed, and refund any balance of the trust money to the Vendor; and
22.2.2 if the trust money is less than the amount payable by the Vendor to the Purchaser, the Vendor must pay the deficiency to the Purchaser.
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PART 8 – GST
23. GST TREATMENT
The parties agree that for the purposes of the GST Law, the Sale is as described in Item 16.
24. GENERAL RULE FOR TAXABLE SUPPLIES
Subject to clause 26 (margin scheme) and clause 27 (adjustments), if a party (Party 1) is or becomes liable to pay GST in respect of a taxable supply Party 1 makes to the other party (Party 2) under this contract, then:
24.1 (unless this contract expressly states that the consideration for that taxable supply includes GST) the consideration payable by Party 2 to Party 1 for that taxable supply must be increased by an amount equal to the amount of the GST in respect of that taxable supply (GST Amount);
24.2 Party 1 must give a tax invoice for the taxable supply to Party 2:
24.2.1 if the Sale terminates before Settlement – within 28 days after termination; or
24.2.2 if Settlement occurs and the taxable supply is made prior to or at Settlement - at Settlement; and
24.3 Party 2 must pay the GST Amount to Party 1 at Settlement if the taxable supply occurs at Settlement or otherwise within 5 Business Days of receipt of the tax invoice from Party 1.
25. SUPPLY OF A GOING CONCERN
If in Item 16 the Sale is agreed to be the supply of a going concern, and so GST-free, then:
25.1 the Purchaser warrants that the Purchaser will, at Settlement, be registered or required to be registered under the GST Act; and
25.2 the Vendor warrants that the Vendor, on the Execution Date, carries on, and will at all times until Settlement carry on, the relevant enterprise and will, pursuant to this contract and any other agreement which exists between the Vendor and the Purchaser, supply to the Purchaser at Settlement all of the things which are necessary to carry on the relevant enterprise.
26. MARGIN SCHEME
If in Item 16 the margin scheme is agreed to apply to the sale of the Land, then:
26.1 the Purchaser's obligation to pay or reimburse GST to the Vendor as regards the sale of the Land is based on the margin under the margin scheme;
26.2 the Purchaser must, where a valuation is required under Division 75 of the GST Law:
26.2.1 obtain at its expense, in the name of the Vendor, an approved valuation of the Land using the valuation method approved by the Vendor; and
26.2.2 provide the approved valuation to the Vendor not less than 5 Business Days prior to Settlement;
26.3 as regards the sale of the Land, the Vendor need not provide a tax invoice to the Purchaser at Settlement; and
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26.4 the acquisition of the Land is not a creditable acquisition, and the Purchaser is not entitled to claim an input tax credit.
27. GST ADJUSTMENTS
27.1 If Item 16 states that:
27.1.1 the sale of the Land is an input taxed supply or is GST-free - but the Purchaser uses the Land in a way that makes the sale a taxable supply; or
27.1.2 the sale of the Assets is the supply of a going concern - but the sale is a taxable supply (other than by reason of a breach by the Vendor of clause 25.2),
upon written demand by the Vendor (whether made before or after Settlement) the Purchaser must pay to the Vendor an amount equal to the Vendor’s GST liability together with any interest and / or penalties assessed to the Vendor.
27.2 If Item 16 states that the supply of the Assets is either wholly taxable or wholly non-taxable, and after Settlement the supply is found to be partly taxable and partly non-taxable, then the Purchaser must either pay to the Vendor or be reimbursed by the Vendor (as is appropriate) the amount of the adjustment in the Vendor's GST liability within 20 Business Days of receipt if a tax invoice or adjustment note. The Purchaser must pay to the Vendor any interest and / or penalties associated with any such adjustment provided an adjustment note is provided.
PART 9 – ANCILLARY CONTRACTS
28. PRESERVATION OF ANCILLARY CONTRACTS
As regards an Ancillary Contract, pending Settlement or termination of the Sale, except with the Purchaser's prior written consent (not to be unreasonably withheld, delayed or conditioned) the Vendor must not:
28.1 breach, suspend, modify adversely or terminate the Ancillary Contract or agree to do so; and / or
28.2 if the Ancillary Contract evidences a Tenancy, agree to any market rent to apply for any period after Settlement.
29. ASSIGNMENT OF ANCILLARY CONTRACTS
29.1 Subject to clause 29.2 and clause 29.3, at Settlement, by force of this contract and without need for further writing, the Vendor assigns the Vendor’s rights and benefits under the Ancillary Contract/s as then remain to be enjoyed or performed to the Purchaser, and the Purchaser accepts that assignment.
29.2 If an Ancillary Contract requires a counterparty to that Ancillary Contract to consent to the Vendor assigning that Ancillary Contract to the Purchaser, then:
29.2.1 pending Settlement and in the 20 Business Days after Settlement, the Vendor, with the Purchaser's reasonable assistance, must take reasonable steps to obtain that consent, effective from Settlement. Reasonable assistance and steps do not include paying any money other than that due to a counterparty under the Ancillary Contract; and
29.2.2 assignment of that Ancillary Contract under clause 29.1 is conditional upon that consent being obtained.
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29.3 If an Ancillary Contract is not in law capable of assignment, insofar as it would not be a breach of that Ancillary Contract, at and from Settlement the Vendor holds the same on trust for the Purchaser.
29.4 To avoid doubt, unless otherwise agreed in writing by these present parties, assignment under this clause 29 excludes a right to all rent, fees, costs, expenses or other money (including damages) payable or to become payable to the Vendor under an Ancillary Contract attributable to a period or circumstance before Settlement, whether paid before or after Settlement.
30. CROSS INDEMNITIES FOR ANCILLARY CONTRACTS
On and from Settlement, as regards an Ancillary Contract, as continuing obligations:
30.1 the Vendor must indemnify and hold harmless the Purchaser and the Purchaser’s successors in title against all liability in respect of the Vendor's obligations under that Ancillary Contract due to be observed or performed before Settlement, except to the extent such liability is caused or contributed to by the Purchaser’s wilful act, negligence or default under this contract or failure to take reasonable steps to mitigate such liability; and
30.2 the Purchaser must indemnify and hold harmless the Vendor against all liability in respect of the Vendor's obligations under that Ancillary Contract due to be observed or performed after Settlement, except to the extent such liability is caused or contributed to by the Vendor’s wilful act, negligence or default under this contract or failure to take reasonable steps to mitigate such liability.
31. DEED/S OF ASSIGNMENT OF ANCILLARY CONTRACTS
31.1 At any time before or after Settlement, a party may give written notice to the other party requiring that the parties enter into a deed of assignment of any Ancillary Contract separately to more perfectly assign to the Purchaser the benefit of that Ancillary Contract.
31.2 The deed must be prepared by the Lawyer for the party who gives the notice with the cost of preparation of the deed being payable by the party giving the notice (it being agreed that the parties will each bear their own costs of any negotiation in respect of the deed).
31.3 The parties must execute and deliver the deed:
31.3.1 no later than Settlement, if the notice under clause 31.1 is given not less than 10 Business Days before the Date for Settlement; or
31.3.2 otherwise, within 15 Business Days after the day on which the notice under clause 31.1 was given.
31.4 A failure to give notice or to execute a deed under this clause 31 does not affect the assignment given effect by clause 29 or the indemnities under clause 30.
32. POST-SETTLEMENT ADJUSTMENTS UNDER A TENANCY
32.1 If:
32.1.1 before or after the Date of Settlement a Tenant is or becomes entitled to a refund or credit for an amount of rent or contribution to outgoings under the Tenancy overpaid to the Vendor before the Date of Settlement; and
32.1.2 before Settlement the Vendor does not refund that overpaid amount to the Tenant; and
32.1.3 after Settlement the Purchaser allows, or will allow, such refund or credit to the Tenant,
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the Vendor must pay the overpaid amount to the Purchaser on demand to the extent not previously and expressly taken into account in adjustment to the Price.
32.2 If:
32.2.1 before or after the Date of Settlement a Tenant is or becomes liable to pay an additional amount of rent or contribution to outgoings to the Vendor in respect of a period of time before the Date of Settlement; and
32.2.2 after Settlement the Tenant pays that additional amount to the Purchaser and not the Vendor,
the Purchaser must pay that additional amount to the Vendor on demand to the extent not previously and expressly taken into account in adjustment to the Price.
32.3 If an overpaid or additional amount to which this clause 32 applies relates to a period of time commencing on or before the Date of Settlement and expiring after the Date of Settlement (Pay Period) the amount accounted for under this clause must be determined in the same proportion as the number of days of that Pay Period before the Date of Settlement bears to the whole of that Pay Period.
PART 10 – MATTERS BEFORE SETTLEMENT
33. NOMINEE PURCHASER
If Item 2 states that the Purchaser enters into this contract for the Purchaser named in Item 2 and / or nominee or as agent for an undisclosed principal, the Purchaser now named may not later than 10 Business Days before the Date for Settlement by written notice to the Vendor nominate another person as purchaser under this contract but remains liable (as a principal) to the Vendor for the observance and performance of a purchaser's obligations under this contract.
34. ASSIGNMENT BY THE PURCHASER
Any assignment of any of the Purchaser's benefits or obligations under this contract, with or without the Vendor's consent, does not release the assignor from existing or future obligations under this contract.
35. RETAINER OF LAWYERS / SUBSCRIBERS
A party to this contract (including any Purchaser's nominee or assignee) (Party 1) who retains a Lawyer or gives a Client Authorisation to a Lawyer or Subscriber for the purposes of Settlement, must:
35.1 if not done beforehand, within 2 Business Days cause that Lawyer's / Subscriber's contact details to be made known to the other party to this contract (Party 2) (or, if Party 2 has previously made known Party 2’s own Lawyer's / Subscriber's contact details, to the Lawyer / Subscriber acting for Party 2); and
35.2 if, before Settlement, the retainer of that Lawyer terminates, or that Client Authorisation terminates (without replacement on at least equivalent terms given to the same Lawyer / Subscriber), within 1 Business Day make that fact known to Party 2 or Party 2's Lawyer / Subscriber.
36. EXCLUDED PROPERTY
Before Settlement, the Vendor at the Vendor’s cost must:
36.1 remove from the Land the Excluded Property (other than the property of continuing Tenants) and all personal property and man-made litter other than the Included Property (if any) stated in Item 4; and
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36.2 make good any damage done to the Land as a result of the installation or removal of any Excluded Property.
PART 11 – PAPER DOCUMENT-BASED CONVEYANCING
37. TRANSFER DOCUMENT
37.1 At least 10 Business Days before the Date for Settlement (or within such shorter period as the Vendor may allow), the Purchaser (or the Purchaser’s Lawyer) must deliver to the Vendor (or the Vendor’s Lawyer), for execution by or on behalf of the Vendor, a transfer of the Land duly executed by or on behalf of the Purchaser.
37.2 Failing due delivery of such transfer, the Vendor may at any time thereafter prepare a transfer and recover $500.00 (before any GST) from the Purchaser as a debt on account of the costs so incurred.
37.3 The transfer must be:
37.3.1 in the form section 96 of the RPA requires (if the Land is under the RPA); 37.3.2 to effect transfer of the Land free of all Third Party Interests (disregarding
any Permitted Interests); and 37.3.3 duly executed by or on behalf of the Vendor.
37.4 The Vendor must deliver the executed transfer to the Purchaser's Lawyer before Settlement:
37.4.1 for stamping and payment of registration fees; and 37.4.2 on trust for the Vendor pending Settlement.
37.5 The above provisions of this clause 37 do not apply if and so long as a transfer of the Land is to be effected electronically via an Electronic Workspace.
38. OTHER CONVEYANCE DOCUMENTS
If any Included Property is of a kind that effective transfer of the Vendor's rights in that Included Property requires a document signed by the Vendor, or signed by both the Vendor and the Purchaser, clause 38 applies as if references therein to a transfer were to such document so far as can be made applicable.
39. ADJUSTMENT STATEMENT
39.1 At least 3 Business Days before the Date for Settlement (or within such shorter period as the Purchaser may allow), the Vendor (or the Vendor’s Lawyer) must deliver to the Purchaser (or the Purchaser’s Lawyer) an adjustment statement setting out in reasonable detail the adjustments to the Price this contract requires or allows.
39.2 Failing due delivery of an adjustment statement, the Purchaser may, at any time thereafter, prepare and give an adjustment statement to the Vendor and recover $500.00 (before any GST) as a debt from the Vendor on account of the costs so incurred.
39.3 The above provisions of this clause 39 do not apply if and so long as a transfer of the Land is to be effected electronically via an Electronic Workspace.
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PART 12 – ELECTRONIC CONVEYANCING
40. APPLICATION OF THIS PART
Provisions in this Part 12 apply only if, to the extent and so long as:
40.1 the parties agree (either in Item 17, elsewhere in this contract or separately) that Settlement and lodgement of the Instruments necessary to record a Conveyancing Transaction this contract requires or allows will be conducted electronically in accordance with the EC Law; and
40.2 a party to this contract has not given later notice under clause 41.
41. ABANDONMENT OF ELECTRONIC CONVEYANCING
If a party reasonably determines that Settlement and lodgement of Instruments under this contract cannot be effected electronically, then that party must immediately:
41.1 if an Electronic Workspace has been established for the purposes of this contract, cause their Representative to post a notice to that effect on the Electronic Workspace; or
41.2 otherwise, give written notice of that determination to the other party.
42. APPOINTMENT OF REPRESENTATIVES
A party must promptly and at least 10 Business Days before the Date for Settlement:
42.1 (if the party itself is not a Subscriber) give a properly completed and signed Client Authorisation to a Subscriber authorising that Subscriber to be the Representative of that party for the purposes of this contract; and
42.2 ensure that all other persons for whom that party is responsible and who are associated with a Conveyancing Transaction this contract requires or allows are or engage a Subscriber.
43. PARTICIPATION RULES
A party who appoints a Representative for the purposes of this contract must, in relation to this contract:
43.1 abide by the Participation Rules under the EC Law;
43.2 on a timely basis, provide such information and instructions as are required for the party’s Representative to comply with the Participation Rules; and
43.3 on a timely basis provide sufficient funds to that party’s financial institution and/or that party’s Representative to enable exchange of such funds to be effected electronically at Settlement via an Electronic Workspace.
44. ELECTRONIC WORKSPACE
44.1 For the purposes of this clause 44, “Vendor” includes the Vendor’s Representative and “Purchaser” includes the Purchaser’s Representative and words and phrases have the same meaning as in the Participation Rules.
44.2 At least 10 Business Days before the Date for Settlement, the Vendor must:
44.2.1 open an Electronic Workspace for the purposes of this contract; 44.2.2 populate the Electronic Workspace with the details of the Land and other
required particulars in relation to the sale of the Land; and Page 24 of 136
44.2.3 invite the Purchaser and the Vendor’s mortgagee (if any) to join the Electronic Workspace.
44.3 The Purchaser must:
44.3.1 accept the invitation to join the Electronic Workspace within 2 Business Days of receipt of the invitation;
44.3.2 populate the Electronic Workspace with the required particulars in relation to the sale of the Land; and
44.3.3 invite the Purchaser’s mortgagee (if any) to join the Electronic Workspace.
44.4 If the Vendor does not comply with paragraph 44.2, the Purchaser may:
44.4.1 open an Electronic Workspace for the purposes of this contract; 44.4.2 populate the Electronic Workspace with the details of the Land and other
required particulars in relation to the sale of the Land; and 44.4.3 invite the Vendor and the Purchaser’s mortgagee (if any) to join the
Electronic Workspace;
and the Vendor must:
44.4.4 accept the Purchaser’s invitation to join the Electronic Workspace within 2 Business Days of receipt of that invitation;
44.4.5 populate the Electronic Workspace with the required particulars in relation to the sale of the Land; and
44.4.6 invite the Vendor’s mortgagee (if any) to join the Electronic Workspace.
44.5 The parties must do all things reasonably necessary and in a timely manner to complete the Electronic Workspace in order to achieve Settlement on the Settlement Day.
44.6 Without limiting paragraph 44.4, to enable the Electronic Workspace to be completed:
44.6.1 the Vendor must provide the Purchaser with the adjustment amounts in accordance with this contract no later than 2 Business Days before the Date for Settlement;
44.6.2 the Vendor must populate the Electronic Workspace with payment details no later than 1 Business Day before the Date for Settlement; and
44.6.3 the parties must, no later than 1 Business Day before the Date for Settlement, ensure that:
(a) all required data has been entered into the Electronic Workspace; (b) any documents requiring a Digital Signature have been Digitally
Signed; and (c) all certifications required by the EC Law are complete.
44.7 At least 5 Business Days before the Date for Settlement, the Vendor (or the Vendor’s Representative) must nominate a time of the day, between the hours of 9.00 am and 4.00 pm, for locking the Electronic Workspace for the purpose of completing Settlement, and must record that nomination on the Electronic Workspace.
45. ELECTRONIC SETTLEMENT
45.1 Unless the respective Representatives of the parties otherwise agree, the Purchaser's Representative will be the Responsible Subscriber for the Lodgment Case that includes the transfer of the Land.
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45.2 Settlement occurs when the Electronic Workspace records that:
45.2.1 (if applicable) the exchange of funds or value between financial institutions in accordance with the instructions of the parties to this contract has occurred; or
45.2.2 if there is no exchange of funds or value, the Instruments necessary to enable the Purchaser to obtain transfer of the Land as this contract requires have been accepted for electronic lodgement.
45.3 If, after the locking of the Electronic Workspace, Settlement in accordance with this clause 45 has not occurred by 5.00 pm on the Date for Settlement, the parties must do everything reasonably necessary to effect Settlement:
45.3.1 electronically on the next Business Day; or 45.3.2 if agreed in writing by the parties, otherwise than electronically as soon
as practicable.
45.4 If, by reason of an electronic or computer system failure of any of the LTO, the Reserve Bank of Australia or the Electronic Lodgment Network Operator, settlement does not occur on the Date for Settlement, the failure to settle will not constitute a breach or default by either party under this contract.
45.5 If and to the extent this contract requires or allows a dealing with the Assets that cannot be effected electronically (such as grant or surrender of a lease / easement / encumbrance / profit à prendre, or delivery of a deed of assignment of an Ancillary Contract):
45.5.1 Settlement must not occur except after, or at the same time as, the parties exchange documents to effect such dealing; and
45.5.2 if, however, Settlement occurs before exchange of those documents, the parties remain liable to exchange those documents on the Date of Settlement.
45.6 Each party must do everything reasonably necessary to assist another party to trace and identify the recipient of any mistaken payment, and to recover the mistaken payment.
PART 13 – SETTLEMENT
46. DATE OF SETTLEMENT
Settlement must occur on the Date for Settlement.
47. PAYMENT OF THE PRICE
At Settlement, the Purchaser must pay the Price (less the Deposit paid), together with any GST applicable, by:
47.1 one or more Bank Cheques (provided that if more than 2 are required, the Vendor bears the costs of issue of the third and later Bank Cheques); or
47.2 one or more deposits of clear funds to an ADI account or accounts,
as the Vendor may in writing direct the Purchaser at least 2 Business Days before Settlement. If no direction is given within time, payment must be by Bank Cheque payable to the Vendor.
The above provisions of this clause 47 do not apply if, to the extent, and so long as funds to be exchanged between the parties will be effected electronically via an Electronic Workspace.
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48. SETTLEMENT DELIVERABLES FROM THE VENDOR
Upon compliance by the Purchaser with the provisions of this contract to be complied with by the Purchaser at or before Settlement, on the Date of Settlement the Vendor (or the Vendor’s Lawyer) must give to the Purchaser (or the Purchaser’s Lawyer) at the LTO (or at such other location as the parties may agree in writing):
48.1 any muniment of title of the Land;
48.2 any declaration, application or certificate which the Vendor may be required to make or give under legislation in order to enable the transfer to be registered;
48.3 any deed/s of assignment submitted within time under clause 31;
48.4 any document/s clause 38 requires;
48.5 anything clause 63 requires;
48.6 (if previously requested in writing by the Purchaser) copies of any "as built" documents, drawings or plans, operating or maintenance manuals, in connection with improvements upon the Land or other Assets as the Vendor may then possess;
48.7 the relevant documentation required effectively to transfer the Land to the Purchaser free of any relevant Third Party Interests (in particular mortgages over the Land and security interests over the Purchaser in respect of the Land); and
48.8 (if not provided beforehand) such originals (or, if the originals are not available, copies) of any Ancillary Contracts in writing or partly in writing as the Vendor may then possess, duly stamped, if required to be stamped.
49. POSSESSION OF THE ASSETS
Subject to any Tenancy, vacant possession of the Land and delivery of the balance of the Assets must be given and taken on Settlement or as the parties may agree in writing.
50. AUTHORITY TO REGISTER
Where, under the RPA, a prescribed person (as defined therein) is required to certify an Instrument, upon written request of the prescribed person, and to the extent requested, each party to this contract required to execute that Instrument must, in a timely manner, provide to that prescribed person credible written evidence of that party's:
50.1 compliance with relevant legislation;
50.2 verification of identity required by section 273A(1) of the RPA;
50.3 verification of authority required by section 273B(1) of the RPA;
50.4 execution requirements of the RPA; and
50.5 any prescribed requirements under section 273(1)(d) of the RPA applicable.
51. PROOF OF AUTHORITY OF AN UNREPRESENTED PARTY
If, at Settlement, the Vendor or the Purchaser is not represented by a Lawyer, at Settlement and for the purpose of section 273AA(1) of the RPA, that party must satisfy the Registrar-General that the party is authorised to enter into the transaction to which an Instrument executed by that party relates.
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52. COMPLIANCE BY A DERIVATIVE PARTY
If performance of this contract requires a mortgagee, lessee, caveator or other person claiming an estate or interest in the Land through or under the Vendor to execute an Instrument, the Vendor must take all reasonable steps to ensure that claimant in relation to itself complies with clause 50 and / or clause 51 as if a party to this contract.
PART 14 – AFTER SETTLEMENT
53. NOTIFICATION OF THE SALE
As soon as practicable after Settlement, the Purchaser must notify the transfer of the Assets so far as relevant to:
53.1 SA Water or other (each) water industry entity that under the Water Industry Act 2012 supplies water or sewage services to the Land;
53.2 the State Government;
53.3 the local or district council in whose area the Land is located; and
53.4 the (each) counterparty to any Ancillary Contract.
Note: If the land is agricultural land and the Vendor or Purchaser is a foreign person (all as defined in the Register of Foreign Ownership of Agricultural Land Act 2015 (Cth)), after Settlement that foreign person should notify the sale of the Land to the Commissioner of Taxation as that Act requires.
54. REQUISITIONS BY THE REGISTRAR-GENERAL
If the Registrar-General, acting under the RPA, raises any requisition/s concerning any dealing with the Land this contract requires or allows, the parties must comply promptly with such requisition/s so far as they are able.
PART 15 – OTHER
55. PAYMENTS
55.1 Subject to the other provisions of this contract, any payment to be made under this contract must be either by Bank Cheque, telegraphic transfer of cleared funds, or a direct credit of cleared funds.
55.2 The receipt of any person paid at the written direction of a party or via an Electronic Workspace is a sufficient discharge to the other party for the amount paid to that person.
56. DEFAULT INTEREST
56.1 If Settlement does not occur on the Date for Settlement only by reason of the Purchaser's default, the Purchaser must pay to the Vendor interest on the Price at the Default Rate computed from the Date for Settlement until either the Date of Settlement or the date of termination of the Sale.
56.2 If Settlement does not occur on the Date for Settlement by reason of the Vendor's default, the Vendor must pay to the Purchaser interest on so much of the Price as has from time to time been paid at the Default Rate computed from the Date for Settlement until either the Date of Settlement or the date on which the money paid by the Purchaser is repaid to the Purchaser.
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57. WARRANTY CLAIMS REDUCE THE PRICE
If the Vendor pays or allows an amount to the Purchaser by reason of an alleged breach by the Vendor of a warranty or representation in this contract, then:
57.1 if the warranty or representation relates to a particular Asset, that amount reduces the Price allocated to that Asset to that extent; and
57.2 otherwise that amount to that extent reduces the Price of all the Assets collectively.
58. REMEDIES NOT EXCLUSIVE
Rights and remedies provided for in this contract are in addition to, and without prejudice to, any other rights or remedies a party may have by reason of any default.
59. NOTICES
59.1 To be effective, a notice or demand under this contract must be in writing in English and signed by or for the party giving notice or demand, by that party’s Lawyer or agent.
59.2 Notice or demand may only be given to a party:
59.2.1 by hand delivery, if the recipient is an individual; 59.2.2 by pre-paid post (air-mail to any address outside Australia) posted in
Australia to the recipient's mailing address stated in this contract or as last notified, and is given on the 3rd Business Day after posting (5 Business Days in case of air-mail) or (if earlier) at the time at which the letter would be delivered in the ordinary course of post;
59.2.3 by a means allowed by the Electronic Transactions Act 2000 (SA) (including by email to the recipient's email address stated in this contract or as last notified), and is given when that Act specifies; or
59.2.4 as permitted by legislation applicable to the recipient.
59.3 Where 2 or more persons comprise a party, notice or demand given to or by 1 is effective notice or demand to all or by all (as the case may be).
60. FURTHER MATTERS
The parties must, at their expense, promptly do all things reasonably necessary to give full effect to this contract and to facilitate the performance of the transactions this contract contemplates.
61. COSTS
Unless stated elsewhere in this contract:
61.1 the Vendor must pay and bear the costs incidental to:
61.1.1 the preparation of this contract; 61.1.2 the discharge, surrender or withdrawal of any Third Party Interest (not a
Permitted Interest) existing in respect of the Assets at Settlement and required to be discharged, surrendered or withdrawn to enable the Vendor to give good title to the Purchaser as this contract requires;
61.2 the Purchaser must pay and bear:
61.2.1 the costs incidental to the preparation of the transfer under clause 37; 61.2.2 the costs incidental to any assignment, mortgage or other document to
be executed pursuant to this contract;
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61.2.3 all stamp duty, registration fees and any other government charge payable in respect of this contract and (subject to clause 61.1.2) any further Instrument or registration this contract requires.
61.3 the parties must pay and bear their own costs of negotiating or executing this contract.
62. FOREIGN PERSONS
Unless otherwise stated in this contract, the Purchaser warrants that the Takeovers Act does not apply, and at Settlement will not apply, to the Purchaser's acquisition of an interest in the Assets under this contract.
63. FOREIGN RESIDENT CAPITAL GAINS WITHHOLDING PAYMENT
63.1 If both the following apply:
63.1.1 the sale of the Land is not an excluded transaction within the meaning of s14-215 of Schedule 1 of the TA Act; and
63.1.2 the Vendor has not given the Purchaser either: (a) a Clearance Certificate for each person comprising the Vendor; or (b) a variation notice under s14-235 of Schedule 1 of the TA Act varying
the Withholding Amount to nil prior to Settlement,
then, notwithstanding any other provision of this Agreement:
63.2 the Purchaser must lodge a Foreign Resident Capital Gains Withholding Purchaser Notification Form with the Australian Taxation Office and give a copy to the Vendor before Settlement;
63.3 the Vendor irrevocably directs the Purchaser to draw a Bank Cheque for the Withholding Amount in favour of the Deputy Commissioner of Taxation and the Purchaser must produce that Bank Cheque at Settlement;
63.4 the Purchaser must pay the Bank Cheque for the Withholding Amount to the Deputy Commissioner of Taxation in accordance with s14-200 of Schedule 1 of the TA Act and give the Vendor evidence that it has done so within 2 Business Days after the Date of Settlement;
63.5 the Vendor cannot refuse to settle if the Purchaser complies with clauses 63.2 and 63.3; and
63.6 compliance by the Purchaser with the Purchaser’s obligations under Schedule 1 of the TA Act to pay the Withholding Amount is a complete discharge of the Purchaser’s obligations under this contract to pay that portion of the Price equal to the Withholding Amount.
64. ANNEXURES
64.1 Any Annexures referred to in Item 15, and any document/s incorporated by reference into any such Annexure, form part of this contract.
64.2 Provisions in an Annexure prevail over the other provisions of this contract to the extent of any inconsistency.
64.3 Unless otherwise stated, expressions used in an Annexure have the same meaning as in this present document.
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65. NO MERGER
Rights and obligations of the parties do not merge on completion of any transaction under this contract. They survive the execution, delivery and registration of any document or Instrument entered into or made for the purpose of implementing any transaction.
66. ENTIRE AGREEMENT
This contract records the entire agreement between all the parties as to its subject so that, subject to its express terms:
66.1 this contract is effective and binding on the parties on execution;
66.2 this contract supersedes any prior contract or obligation between all the parties about its subject, and this contract is effective to release absolutely each party from all claims (in common law, principles of equity or under legislation) another party to this contract might otherwise have in connection with that prior contract or obligation; and
66.3 on the Execution Date, there is no contract between all the parties collateral to this contract.
67. AMENDMENT
67.1 This contract can be amended only by written agreement of all parties.
67.2 Without limiting clause 67.1, a party will not amend the Standard Terms for the Sale of Land issued by The Law Society of South Australia, unless all the amendments are expressly specified in an Annexure.
68. WAIVERS
A party waives a right under this contract only by giving written notice that such party waives that right.
69. GOVERNING LAW AND JURISDICTION
69.1 The laws in force in South Australia govern this contract.
69.2 The courts of South Australia or the Federal Court of Australia (Adelaide Registry) have exclusive jurisdiction in connection with this contract. The parties irrevocably submit to the jurisdiction of those courts, and any courts that have jurisdiction to hear appeals from those courts.
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ANNEXURE A
SPECIAL CONDITIONS
Table of Contents
1. Definitions and Interpretation 36
1.1 Definitions 36
1.2 Interpretation 41
1.3 Inconsistencies 41
2. Purchaser's Acknowledgments 41
2.1 No Warranties 41
2.2 Purchaser’s own inquiries 41
2.3 Land is subject to 42
2.4 Geotechnical suitability 42
2.5 Form 1 42
2.6 Information 42
2.7 Utilities and Services 42
2.8 Encroachments 42
2.9 Boundaries 43
2.10 Planning 43
2.11 Diversity of Housing Outcomes 43
2.12 Location of the Land and Proximity to Other Land Uses 43
2.13 Interests 44
2.14 Changes to the Project 44
2.15 Economic Development Objectives 45
3. Environmental Matters 46
3.1 Reports 46
3.2 Purchaser’s own inquiries 46
3.3 Liability 47
3.4 Disposal of Fill 47
4. Purchaser’s Warranties 47
4.1 Warranties 47
4.2 Default 48
4.3 Indemnity 48
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4.4 Insolvency 48
5. Conditions 48
5.1 Conditions for Settlement 48
5.2 Deposit of the Plan of Division 49
5.3 Approval of Purchaser’s Detailed Concept Plans 51
5.4 Development Plan Consent 54
6. Variations to the Project and/or Urban Design Guidelines 56
6.1 Variations to the Project or the Plans 56
6.2 No Objection 56
6.3 Variation to Purchase Price 57
7. Variations to the Purchaser’s Nominated Consultancy Team 57
8. Encumbrances 57
8.1 Purchaser’s Obligations 57
8.2 Developer Encumbrance 58
8.3 Subsequent Building Allotment Encumbrance 58
8.4 Parking Encumbrance 59
8.5 Purchaser’s Indemnity 59
9. Community Scheme Documents 61
9.1 Community Title Development 61
9.2 Approved Scheme Documents 61
10. Deposit 62
10.1 Amount plus GST 62
10.2 Investment 62
10.3 Withdrawal for settlement 62
10.4 Interest payable to 62
10.5 Documents 62
10.6 Risk 62
11. Bank Guarantee in Lieu of Deposit 62
12. Vendor’s Infrastructure Obligations 64
12.1 Vendor’s Infrastructure Obligations 64
13. Purchaser’s Development Obligations 64
13.1 Purchaser’s Development Obligations 64
13.2 Recycled Water Scheme 65
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14. Sales and Marketing 67
14.1 Background 67
14.2 Purchaser’s Obligations 67
14.3 Purchaser’s Appointment of Vendor’s Sales Agent 67
14.4 Purchaser’s Marketing Material 68
15. Access for Construction and Post-settlement Matters 68
15.1 Continuing Works 68
15.2 Neighbouring Works 68
15.3 Release and Indemnity 69
15.4 Construction and Environmental Management Plan 69
15.5 Damage to Public Infrastructure 70
15.6 Open Space Contribution 70
16. Default and Termination Post Settlement 70
16.1 Termination for Insolvency 70
16.2 Breach of Purchaser’s Obligations 71
16.3 Re-Transfer of Land 71
16.4 Re-purchase Price 72
16.5 Intellectual Property Rights 73
16.6 Survival 74
17. Caveat 74
18. Time of the Essence 74
19. Guarantee 74
20. GST 74
20.1 Interpretation 74
20.2 GST Exclusive Consideration 74
20.3 Payment of GST 74
20.4 Tax Invoice 74
20.5 Clawback 74
20.6 Conclusive evidence 75
20.7 Indemnity 75
20.8 No merger 75
21. Amendment of Standard Conditions 75
21.1 Deletion 75
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21.2 Variation 75
22. General Provisions 76
22.1 Entire agreement 76
22.2 Amendment 76
22.3 Assignment by Purchaser 76
22.4 Assignment by Vendor 76
22.5 No waiver 76
22.6 Further assurances 77
22.7 No merger 77
22.8 Costs and stamp duty 77
22.9 Governing law and jurisdiction 77
22.10 Counterparts 77
22.11 Relationship 77
22.12 Notices 77
23. Confidentiality and Public Announcements 78
24. Disclosure 79
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1. Definitions and Interpretation
1.1 Definitions
In this contract, unless the contrary intention appears:
Affordable Housing Apartment means an apartment constructed, or to be constructed, on the Land that meets the criteria for affordable housing specified in the Notice; Affordable Housing Plan means the plan developed by the Purchaser and approved by the Director in accordance with Special Condition 9 of this contract;
Allotment Control Plan means the building envelope plan and control drawings in respect of the Land, a copy of which plan is attached as Annexure C.
Authority includes any State or Federal government, any semi or local government, any statutory, public or any other person, authority, instrumentality, court, tribunal or body having jurisdiction over the Land or anything in relation to it.
Bank Guarantee means an enforceable irrevocable and continuing bank guarantee in favour of the Vendor given by a bank approved by the Vendor whereby the bank undertakes unconditionally and on terms satisfactory to the Vendor to pay to the Vendor any sum demanded by the Vendor but not exceeding an amount equal to the Deposit.
Bowden Project means the Vendor’s intended staged development and sale of the Development Site as generally described in the Urban Design Guidelines (as amended from time to time).
Bowden Project Masterplan means the masterplan prepared by or on behalf of the Vendor for the Bowden Project (as varied from time to time), a copy of which is included in the Urban Design Guidelines.
Branding Guidelines means guidelines developed by the Vendor and provided to the Purchaser that relate to the sale and marketing of any aspect of the Bowden Project, including Building Allotments (which guidelines may be amended by the Vendor from time to time).
Building Allotment means any residential, retail, commercial or other premises constructed on the Land (or any part thereof) by or on behalf of the Purchaser following Settlement and includes (where applicable) any allotment created by subsequent division of the Land under the Real Property Act 1886 (SA) or Community Titles Act 1996 (SA) by the Purchaser after Settlement.
Business Day means Monday to Friday excluding public holidays under the Holidays Act 1910 (SA).
Car Parking Agreement means the form of document contained in Annexure G to be entered into by the Purchaser in accordance with Special Condition 8.4.
Claim means any claim, demand, action, cause of action, proceeding, judgement, order, relief, remedy, right, entitlement, damage, loss, expense, cost, compensation, reimbursement or liability incurred, suffered, brought, made or recovered of whatever nature, however arising and whether presently ascertained, immediate, future or contingent and whether arising at law or in equity.
Conditions Satisfaction Dates mean the respective dates specified in Special Condition 5.1.
Confidential Information means any information concerning the affairs of the Vendor or the Purchaser or concerned with the Bowden Project which is not generally available
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to the public and which the Vendor or the Purchaser informs the other in writing is confidential. Confidential Information does not include any information which:
at the time of the first disclosure by a party was already in the recipient’s lawful possession in written form;
is in or comes into the public domain otherwise than by disclosure by a party in breach of this contract;
becomes available to a party from any source other than from another party to this contract and that source is entitled to disclose the information without restriction on the use or disclosure of the information by the recipient; or
is included in this contract including its contents.
Construction Management Plan means the construction management plan submitted by the Purchaser for approval in accordance with Special Condition 16.4 and includes any amendments to that plan approved by the Vendor in accordance with this contract.
Contamination or Contaminated means the existence or presence of any substance including asbestos which is or may be harmful to the environment or to the health or safety of human beings or animals or which may cause damage to any property:
in, on, or under or about the Land and any adjacent or nearby land;
in the Groundwater; and/or
in the Groundwater under any adjacent or nearby land flowing onto or under the Land or into and becoming part of the Groundwater.
Design Advice Sheet means the design advice sheet prepared by the Design Review Panel to assist the Vendor with its review of the Purchaser’s Detailed Concept Plans in accordance with Special Condition 5.2.
Design Review Panel means the panel appointed by the Vendor to provide advice to the Vendor in the Vendor’s assessment of the Purchaser’s proposed development of the Land in accordance with Special Condition 5.2.
Developer Encumbrance means the form of encumbrance contained in Annexure E to be granted by the Purchaser to the Vendor in accordance with Special Condition 8.2.
Developer Site Signage Guidelines means the guidelines identified in Annexure D and as updated from time to time by the Vendor, that the Purchaser must comply with once the Purchaser becomes the registered proprietor of the Land until construction is completed.
Development Site means all of the land owned (now or in the future) by the Vendor which is intended to be developed as part of the Bowden Project.
Development Works means all investigative, monitoring, surveying, engineering, excavation, remediation, removal, construction, civil, infrastructure or other works associated with the development of the Bowden Project and whether undertaken by (or at the request of) the Vendor or by other owners of land within the Development Site from time to time, and includes for avoidance of doubt, the Infrastructure Works.
Dispose means assign, transfer, otherwise dispose of or grant or permit or suffer the grant of any legal or equitable interest (either in whole or in part) whether by sale, lease, declaration or creation of a trust or otherwise.
Draft Plan of Division means the draft plan of division attached as Annexure B.
Eligible Buyer means either:-
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a prospective homeowner listed on the SA Home Purchase Eligibility Register maintained by Renewal SA; or
a registered community housing provider under the Community Housing Providers (National Law) (South Australia) Act 2013 (SA) or a party which is a transitioning housing association or transitioning housing co-operative under that Act; or
South Australian Housing Trust; or
a housing provider that is subject to an Affordable Housing Facilitation Agreement with any Minister, instrumentality or agency of the Crown in the right of the State of South Australia; or
a Person approved to provide affordable rental under the NRAS; or
such other Person as the Minister may from time to time nominate to the Purchaser in writing;
Form 1 Statement means the statements issued by or on behalf of the Vendor to the Purchaser pursuant to the Land and Business (Sale and Conveyancing) Act 1994 (SA).
Form of Offer means the form of offer submitted by the Purchaser to the Vendor, which has resulted in the parties entering into this contract.
Green Star means the environmental rating system administered by the Green Building Council of Australia that evaluates the environmental design and construction of buildings.
Green Star Application Template means the template prepared by the Vendor (as amended from time to time) to assist purchasers of land within the Bowden Project to make an application for Green Star rating for their developments, and which is available from the Vendor at the Purchaser’s request.
Groundwater means the groundwater in or under the Land and any adjacent or nearby land.
Informal Design Meeting means the informal meeting of the Design Review Panel referred to in Special Condition 5.3(a).
Infrastructure Works means those works completed by the Vendor and set out in Special Condition 13.
Insolvency Event means the happening of any of the following events:
in respect of a body corporate:
(i) an application is made to a court for, or an order is made:
(A) appointing a liquidator or provisional liquidator; or
(B) that it be wound up;
(ii) a liquidator, administrator, receiver, receiver and manager or controller is appointed to it, or takes possession in respect of any part of its property;
(iii) it resolves to wind itself up, enters into or resolves to enter into voluntary administration or enters into a deed of company arrangement, a scheme of arrangement or composition with, or assignment for the benefit of all or any class of its creditors;
(iv) it or its directors state that it is unable to pay its debts as and when they become due and payable or is presumed to be insolvent within
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the meaning of section 459C(2) of the Corporations Act 2001 (Cth); or
in respect of a natural person:
(i) becomes bankrupt, executes a deed of assignment or deed of arrangement or enter into a composition with that person’s creditors; or
(ii) dies or becomes mentally incapacitated; or
(i) anything having a substantially similar effect to any of the events specified above happens under any law or any applicable jurisdiction.
Intellectual Property Rights means all rights conferred under statute, common law and equity in and in relation to copyright (including moral rights), designs, patents, patentable rights, trade marks, domain names, confidential information and any other rights generally accepted as falling within the definition or concept of intellectual property, whether registered or unregistered, registrable or unregistrable, and including any application for such rights.
Key Attributes means the area, location and configuration of the Land as set out in the Allotment Control Plan.
Loss means any cost, expense, loss, damage, claim, action, proceeding or other liability (whether in contract, tort or otherwise), however arising (whether or not presently ascertained, immediate, future or contingent) and includes legal costs on a full indemnity basis.
Maximum Price is the maximum sale price for the Affordable Housing Apartment specified in the Notice and is inclusive of GST payable by an Eligible Buyer but excludes stamp duty and registration fees payable by an Eligible Buyer;
Notice means a notice published in the South Australian Government Gazette pursuant to Regulation 4 of the South Australian Housing Trust (General) Regulations 1995 (SA) as amended from time to time;
Person will include a corporate body or other entity;
Plan of Division means the plan of division deposited at the Lands Titles Office to create the allotment comprising the Land.
Practical Completion means reasonably fit for occupation or use notwithstanding any minor omissions or minor defects which do not prevent the building(s) from being used or occupied for its intended purpose.
Project Website means the website developed by the Vendor and which contains information specifically for the Bowden Project, with the web address of http://www.lifemoreinteresting.com.au, or such other website from time to time dedicated to the Bowden Project.
Purchaser’s Nominated Consultancy Team means those architects, builders or other consultants or service providers nominated by the Purchaser in the Form of Offer as being those consultants who will assist the Purchaser develop the Land into residential dwellings in accordance with the Urban Design Guidelines.
Purchaser’s Detailed Concept Plans means the detailed concept plans for the development of the Land, submitted by or on behalf of the Purchaser to the Vendor for approval in accordance with Special Condition 5.3, and for the avoidance of doubt, includes any amendments or variations to those plans approved by the Vendor in accordance with this contract.
Recycled Water Supply Infrastructure has the meaning given to that term in Special Condition 14.2(f).
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Relevant Authority has the meaning given to those words in the Development Act 1993 (SA).
Sales Agent means a registered agent under the Land Agents Act 1994 (SA).
State Government Body means an entity of the Crown in right in the State of South Australia or such other corporation, body, agency or authority of the Government of South Australia.
State of the Land and Groundwater has its natural meaning and includes:
the condition of the Land and Groundwater;
the use to which the Land has been or may be put;
any encroachments onto or from the Land;
any misdescription of the Land in the certificate(s) of title;
any deficiencies or inaccuracy in the area of measurement of the Land in the certificate(s) of title;
any planning, development or other restrictions on or in relation to the Land;
any Contamination of or to or in the Land and/or the Groundwater;
any defects in the Land, patent or latent;
any easements, rights, exceptions and reservations referred to in the certificate of title(s) to the Land;
any other easements, rights, exceptions and reservations, statutory or otherwise, affecting the Land;
any other matter which may adversely affect the use, amenity or value of the Land; and
whether or not any part of the Land has been filled and if so with what.
Statement of Design Intent means a statement setting out how the Purchaser’s Detailed Concept Plans will, as a minimum, comply with the Urban Design Guidelines.
Subsequent Purchaser means any third party who after Settlement, purchases (or is otherwise transferred an interest in) a Building Allotment from the Purchaser.
Subsequent Building Allotment Encumbrance means the form of encumbrance contained in Annexure F in favour of the Vendor to be granted by each Subsequent Purchaser and to be procured by the Purchaser in accordance with Special Condition 8.3.
Substantially Commence means the completion of all site works and the completion of all concrete foundations and footings necessary to support the building(s) approved by the Vendor in accordance with this contract.
Urban Design Guidelines means the urban design guidelines published by the Vendor in respect to the building scheme that has been or will be adopted and implemented within the Bowden Project as amended from time to time a copy of which can be found on the Project Website.
Vendor’s Sale Agent means Urban Projects Australia Pty Ltd ABN 26 158 633 544, trading as Connekt Urban Projects or such other Sales Agent as appointed by the Vendor from time to time.
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Website means the part of the website www.realestate.com.au that is used and maintained by the Vendor for the purposes of listing affordable properties.
1.2 Interpretation
In this contract, unless the contrary intention appears:
a reference to a General Condition is a reference to a provision of the Contract for the Sale and Purchase of Land approved by the Law Society of South Australia, to which this Annexure A is attached;
a reference to a Special Condition is a reference to a provision of this Annexure A;
a reference to dollars and $ is to Australian currency;
the meaning of general words is not limited to specific examples introduced by including, or for example, or similar expressions; and
1.3 Inconsistencies
If there is any inconsistency between these Special Conditions and the General Conditions, these Special Conditions will prevail.
2. Purchaser's Acknowledgments
2.1 No Warranties
The Purchaser acknowledges and agrees that:
this contract contains all the conditions and warranties pertaining to the sale and purchase of the Land;
the Vendor, the Vendor’s Sales Agent or anyone else on behalf of the Vendor, has not (other than as are contained in this contract and the Form 1 Statement) made any warranties or representations to the Purchaser about anything in relation to the State of the Land and/or the Groundwater; and
the only warranties and representations that the Purchaser has relied upon are those contained in this contract.
2.2 Purchaser’s own inquiries
The Purchaser acknowledges and agrees that:
it has had the opportunity to make its own inquiries and investigations into and about:
(i) the State of the Land and/or the Groundwater; and
(ii) the location of the Land and its ambience, including its proximity to a range of commercial, industrial, road and transport, entertainment and other uses; and
it is in any event deemed to have made and relied upon its own inquiries and investigations into and about:
(i) the location of the Land and its ambience; and
(ii) the State of the Land and/or the Groundwater.
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2.3 Land is subject to
The Purchaser acknowledges and agrees that the Purchaser purchases the Land subject to the State of the Land and/or the Groundwater, and may not sue the Vendor in relation to any Loss suffered or incurred by the Purchaser as a result of or in connection with the State of the Land and/or the Groundwater.
2.4 Geotechnical suitability
Without limitation to anything contained in this Special Condition 2, the Purchaser acknowledges and agrees that it is deemed to have made and relied upon its own inquiries and investigations regarding the geotechnical condition of the Land.
The Vendor makes no representation or warranty about whether the Land is geotechnically suitable for the Purchaser's proposed development of the Land and is under no obligation to undertake any works to make the Land geotechnically suitable for the Purchaser's proposed development of the Land or under any other liability in respect of the geotechnical condition of the Land.
2.5 Form 1
The Purchaser acknowledges the contents of and disclosures made in the Form 1 Statement issued by or on behalf of the Vendor to the Purchaser and acknowledges and agrees that the contents of the same shall, for the purposes of disclosure to the Purchaser, form part of this contract.
2.6 Information
The Purchaser acknowledges and agrees that the contents of and disclosures made in all sales and marketing materials prepared by or on behalf of the Vendor and any supplements, addendums or additions to it issued by or on behalf of the Vendor (or any party acting on behalf of the Vendor) to the Purchaser:
have been made for the Purchaser’s information only to assist the Purchaser to determine whether the Purchaser was sufficiently interested in the Land to make an offer to purchase the Land;
have not been relied upon by the Purchaser or any party acting on behalf of the Purchaser; and
do not form part of this contract and/or do not form a separate or collateral agreement with the Vendor.
2.7 Utilities and Services
The Purchaser acknowledges and agrees that the Purchaser has inspected and investigated the method by which services and utilities are supplied to the Land and the manner in which the Purchaser will be charged (or are intended to be charged) for the connection, supply and use of those services and utilities and the Purchaser will not make any claim or demand nor shall the Purchaser have any recourse against the Vendor in respect of such matters.
2.8 Encroachments
The Purchaser acknowledges and agrees that no warranty is given that the infrastructure and/or services (if any) on the Land does not encroach on any land adjoining the Land or that any improvements and/or services (if any) on any adjoining land do not encroach on the Land or that any infrastructure and/or services (if any) situated on the Land are on the true boundaries of the Land or that the infrastructure
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and/or services (if any) on the Land does not encroach on any right of way noted on the Certificates of Title for the Land (and if it should subsequently be found that there is any such encroachment issue, then the Purchaser shall have no claim whatsoever against the Vendor in respect of any or all of these matters).
2.9 Boundaries
The Purchaser acknowledges and agrees that the Purchaser must not make any requisition or claim any compensation for any alleged misdescription of the Land or any deficiency in its area or measurements or call on the Vendor to amend Title or to bear all or any part of the costs of so doing.
2.10 Planning
The Purchaser acknowledges and agrees that:
the Purchaser buys subject to any restrictions imposed by and to the provisions of the Development Act 1993 (SA) and the Vendor makes no warranty as to any uses permitted on the Land; and
the Purchaser has made its own enquiries in relation to the use of the Land and as to the existence or otherwise of any requisite approvals and permits and as to the conditions (if any) contained in any such approvals and permits and if it should subsequently be found that all appropriate permits and approvals have not been obtained, the Purchaser will not have any claim against the Vendor.
2.11 Diversity of Housing Outcomes
The Purchaser acknowledges that:
when completed, there may be in excess of 15% of all dwellings within the Development Site that will be designed to meet the affordable housing price points as determined from time to time in accordance with the South Australian Government’s Affordable Housing Innovations Program; and
the Purchaser shall not delay or refuse settlement or have any other claim whatsoever against the Vendor in respect of these matters.
2.12 Location of the Land and Proximity to Other Land Uses
The Purchaser acknowledges and agrees that:
the Land is located within the vicinity of a range of commercial, industrial, transport, entertainment and other uses, including road, rail and light rail corridors;
the Land is located in the vicinity of the South Australian Brewing Company's Thebarton brewery and the Bowden Conroys smallgood facility;
because of the matters referred to in (a) and (b) above, the Land may at various times be subject to noise, traffic and odour or emission impacts and light spill associated with those activities;
the Purchaser has made the Purchaser's own inquiries and investigations in respect of these matters and:
(i) is satisfied with the results and findings of those inquiries and investigations; and
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(ii) has made the Purchaser's own judgment about whether the Purchaser's circumstances are compatible with the ambient environment;
the Purchaser will not refuse or delay settlement, or make any complaint to the Vendor or any other party or make any Claim whatsoever against the Vendor in relation to or arising howsoever from the matters referred to in (a), (b) and (c) above; and
this Special Condition will survive Settlement.
2.13 Interests
The Purchaser buys subject to any easements, rights, exceptions and reservations referred to in the Certificates of Title for the Land to be created upon deposit of the Plan of Division and any other easement which may affect the Land (including any other easements or rights vested in or claimed by any statutory authorities) in respect of which the Vendor, on or prior to the Date for Settlement has notified the Purchaser in writing.
2.14 Changes to the Project
Without limiting Special Condition 6.1, the Purchaser acknowledges and agrees that:
the Bowden Project is a long term project, and accordingly as the project progresses changes may be made to aspects of the project from those which are presently intended and which are depicted in the Urban Design Guidelines, in the Bowden Project Masterplan or in other material provided by the Vendor;
the changes to the Bowden Project referred to in Special Condition 2.14(a) may include changes to:
(i) the layout of the project and the location of various features or infrastructure;
(ii) the inclusion, addition or omission of some areas, features or infrastructure from the project; or
(iii) the timing for the delivery or completion of various features or infrastructure;
for the avoidance of doubt, the changes referred to in Special Conditions 2.14(a) and (b) above include changes to any stages or development comprising the Bowden Project;
these changes may occur for various reasons, such as to meet market demand or reflect changing economic conditions or as a result of design requirements or to meet the requirements of Authorities or for any other reason the Vendor deems desirable in its discretion;
the Vendor is not obliged, whether before or after Settlement, to commence or complete construction of the remainder of the Bowden Project in any manner contemplated under this contract, the Urban Design Guidelines, the Bowden Project Masterplan or in other material provided by the Vendor; and
the Purchaser will not make any objection, requisition or claim for compensation against the Vendor nor rescind or terminate this contract, nor delay or refuse to settle by reason of any delay, non-completion or changes to the Bowden Project contemplated in this Special Condition 2.14.
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2.15 Economic Development Objectives
The Purchaser acknowledges and agrees that:
a key objective of the Bowden Project is to stimulate local economic and community development. The Vendor is working collaboratively with the City of Charles Sturt and the local community to identify and develop these opportunities;
to assist in the facilitation of these objectives the Purchaser must (or must procure its project partners to):
(i) provide at least 4 work experience placements, each of not less than one week duration, within its (or its project partners’) organisation (Placement(s)); and
(ii) use its best endeavours to provide at least 2 newly created paid employment placements during the development of the Land within its (or its project partners') organisation (Employment Position(s));
all work Placements and Employment Positions must be filled by persons who are residents of the Bowden Project and/or the City of Charles Sturt in the Western Adelaide region and be directly arranged and coordinated through and in consultation with the Vendor’s Training and Employment Manager who will arrange each person undertaking a relevant Placement via State and/or Commonwealth government training schemes;
the Purchaser must, in relation to each Placement, ensure that the following insurances are in place in relation to the person undertaking the relevant Placement from time to time:
(i) Public Liability Insurance for loss of or damage or property and the death of or injury to any person for an amount in respect of any one occurrence of not less than $10,000,000.00;
(ii) Workers Compensation Insurance, which shall cover all persons participating in a Placement; and
(iii) Products Liability Insurance;
the Vendor’s Training and Employment Manager will assist the Purchaser in complying with Special Condition (d) above by liaising with the relevant State and/or Commonwealth government training scheme through which the person undertaking the relevant Placement has been sourced to ensure that appropriate insurances are in place;
the Purchaser will at all times provide all things and take all measures necessary to protect Placement participants and shall comply with the requirements of all relevant laws, Acts and regulations relating to occupational health and safety, including all applicable requirements of the Work Health and Safety Act 2012 (SA) and its associated Regulations and will ensure that any person providing a Placement complies in a like manner;
a person employed in an Employment Position will be the employee of (and the responsibility in all respects of) the Purchaser (or its project partner or partners, as appropriate); and
to the extent not prohibited by law, the Purchaser indemnifies and forever indemnifies the Vendor against any damage, expense, loss or liability suffered or incurred arising out of or in connection with the failure of the Purchaser (or its employees, agents, consultants or subcontractors) to comply with and/or discharge its obligations under this Special Condition 2.15.
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3. Environmental Matters
3.1 Reports
The Vendor has disclosed in the Form 1 Statement and/or will make available to the Purchaser the environmental reports when they become available including the interim site audit advice referred to in (c) below and the site contamination audit statement referred to in (d) below (Vendor’s Environmental Report).
The Vendor does not warrant or represent that the Vendor’s Environmental Report:
(i) will be correct, accurate or complete;
(ii) will disclose all matters relating to the State of the Land and Groundwater; or
(iii) will disclose completely and accurately the type, extent and nature of any Contamination.
The Vendor discloses to the Purchaser that it will obtain prior to Settlement under this contract Interim Site Audit Advice in relation to the Land stating that the Land will be suitable for medium to high density residential with no access to soils.
The Vendor discloses to the Purchaser that prior to construction commencement that it has or will carry out or cause to be carried out certain remediation work and will obtain a site contamination audit statement which certifies the suitability of the Land for medium to high density residential with no access to soils.
The Purchaser acknowledges and agrees that apart from the disclosure of the existence of the Vendor’s Environmental Reports, the Vendor makes no other representations or warranties about the State of the Land and Groundwater or remediation works undertaken on the Land.
3.2 Purchaser’s own inquiries
Without limiting the provisions of Special Condition 2 of this contract, the Purchaser acknowledges and agrees that:
it has had sufficient opportunity to make its own inquiries and investigations about:
(i) the State of the Land and Groundwater;
(ii) the remediation works disclosed to the Purchaser in the Vendor’s Environmental Reports; and
(iii) the location and nature of any existing services,
and is satisfied with the results and findings of those inquiries and investigations; and
where it has not made (or otherwise procured or commissioned the making of) any inquiries or investigations about the State of the Land and Groundwater, then the Purchaser:
(i) has determined of its own volition (and without reliance upon any statement(s) or representation(s) made by or on behalf of the Vendor) that such inquiries and investigations are unnecessary; and
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(ii) is satisfied (or is otherwise deemed to be satisfied) with the State of the Land and Groundwater.
3.3 Liability
The Purchaser will as and from the Date of Settlement under this contract:
assume all responsibility for the State of the Land and Groundwater including compliance with all relevant legislation and the requirements of any authority in respect of the State of the Land and Groundwater and in this regard the Purchaser must, at its own cost and expense (and without any contribution from the Vendor), undertake such remediation and other works as may be necessary or required;
comply with any orders or directions issued from time to time by the Environment Protection Authority or any other relevant authority in relation to the State of the Land and Groundwater;
have no claim whatsoever against the Vendor in relation to or arising howsoever from the State of the Land and Groundwater or the undertaking of any such remediation or other works or any statement or representation in the Vendor's Environmental Reports and the Purchaser further expressly acknowledges and agrees that the Vendor is not liable for any Loss suffered by the Purchaser or any claims against or incurred by the Purchaser relating to the State of the Land and Groundwater or loss or damage to any property or death of or injury to any person arising out of any activity carried on or in connection with the Land whether prior to or after Settlement;
indemnify the Vendor and keep the Vendor indemnified against all liability against all Claims resulting in any way from the State of the Land and Groundwater (including actions based on injury or damage to any person corporation or property) where the event giving rise to the Claim arises from and after the Date of Settlement under this contract; and
this Special Condition will survive Settlement and the indemnity in this Special Condition continues in full force and effect even after the Purchaser disposes of the Land.
3.4 Disposal of Fill
Notwithstanding any other provision of this contract, the Purchaser acknowledges and agrees that it is responsible for all excavation works associated with the Purchaser's development of the Land including, but not limited to, the disposal of any fill arising from those excavation works and must in all respects comply with EPA information sheet 'Current criteria for the classification of waste―including Industrial and Commercial Waste (Listed) and Waste Soil' dated March 2010.
4. Purchaser’s Warranties
4.1 Warranties
The Purchaser warrants that:
it has full power and authority to enter into and perform its obligations under this contract;
it has taken all necessary action to authorise the execution, delivery and performance of this contract in accordance with its terms;
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it is not the trustee of any trust and if it is, the Purchaser is in any event:
(i) duly authorised under the terms of the trust to enter into this contract;
(ii) entitled to be indemnified out of the assets of the trust in respect of its liabilities and obligations under this contract and those assets are sufficient to meet those liabilities and obligations; and
(iii) liable personally and as trustee of the trust in respect of all its liabilities and obligations under this contract;
this contract constitutes legal, valid and binding obligations upon the Purchaser and, subject to stamping, is enforceable against the Purchaser in accordance with its terms.
4.2 Default
A breach of any of these warranties constitutes a default by the Purchaser under clause 6 of the General Conditions.
4.3 Indemnity
The Purchaser indemnifies the Vendor its employees, agents and contractors against all Loss suffered or incurred by the Vendor as a result of or in connection with any breach of the warranties the subject of Special Condition 4.1.
4.4 Insolvency
Without limiting the Vendor's remedies under this contract and at law, the occurrence of an Insolvency Event (whether before or after the Execution Date) in relation to the Purchaser is deemed to be a breach by the Purchaser of its obligations under this contract which entitles the Vendor to give a notice of default to the Purchaser and otherwise exercise its rights under clause 6 of the General Conditions.
5. Conditions
5.1 Conditions for Settlement
Conditions Satisfaction Dates
The Vendor and the Purchaser acknowledge and agree that the obligation upon the Vendor and the Purchaser to effect Settlement under this contract is subject to the satisfaction of the following conditions by the date noted in that condition (or such later date as agreed in writing between the Vendor and the Purchaser):
(i) in accordance with Special Condition 5.2, the deposit of the Plan of Division by the Registrar General of the Lands Titles Office on or before the date falling six (6) months from the Execution Date (Division Plan Condition Date); and
(ii) in accordance with Special Condition 5.3, the Purchaser obtaining the Vendor’s approval of the Purchaser’s Detailed Concept Plans on or before the date falling 3 months from the Execution Date;
(iii) the Purchaser paying the required registration and certification fees for a 5 star Green Star ‘design and as built’ rating for the development to be undertaken on the Land to the Green Building Council of Australia and providing evidence of payment to the Vendor within 6 months from obtaining the Vendor’s approval of the Purchaser’s Detailed Concept Plans.
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Best endeavours
(i) The Vendor agrees to use its best endeavours to ensure that the condition the subject of Special Condition 5.1(a)(i) is satisfied in accordance with these Special Conditions
(ii) The Purchaser agrees to use its best endeavours to ensure that the condition the subject of Special Conditions 5.1(a)(ii) and 5.1(a)(iii)are satisfied in accordance with the terms of these Special Conditions.
Assist
The Vendor and Purchaser shall give each other all necessary assistance to achieve satisfaction of the conditions the subject of this Special Condition 5 and both the Vendor and Purchaser will execute all documents and do all things reasonably necessary to achieve the same.
Benefit
(i) The condition the subject of Special Condition 5.1(a)(i) is for the benefit of both parties and may not be waived by the Vendor or the Purchaser unless they so agree in writing.
(ii) The conditions the subject of Special Conditions 5.1(a)(ii) and 5.1(a)(iii) are for the benefit of the Vendor and if the time for the compliance of that condition has expired, then the Vendor may by a written notice to the Purchaser: (A) waive the compliance with that condition; (B) extend the time for compliance with that condition; or (C) terminate this contract.
Non satisfaction
Subject to Special Condition 5.2(f), if any of the conditions the subject of Special Condition 5 are not satisfied on or before the relevant Conditions Satisfaction Date or such date as:
(i) has been agreed in writing between the Vendor and the Purchaser; or
(ii) has been set out in the said Special Condition; or
(iii) has been extended pursuant to Special Condition 5.1(d)(ii)(B), then either the Vendor or the Purchaser may by written notice given to the other terminate this contract and all monies paid by the Purchaser to the Vendor under this contract (including any interest accrued on the Deposit) shall be returned to the Purchaser within seven (7) days of such notice.
If Subject to conditions
If any consent or approval the subject of this Special Condition 5 is provided subject to conditions, then both parties agree to act reasonably in their assessment of whether such conditions are acceptable to it.
5.2 Deposit of the Plan of Division
Preparation and approval of the Plan of Division
Subject to Special Condition 6, the Vendor will:
(i) prepare the Plan of Division under the Real Property Act 1886 to create the Land as allotments for the purposes of that Act;
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(ii) promptly lodge with the appropriate authorities and persons all necessary applications to obtain such consents, approvals and certificates as may be necessary, including any required under the Development Act 1993 to enable the Plan of Division for the Land to be deposited at the Lands Titles Registration Office on or before the Division Plan Condition Date; and
(iii) take all reasonable steps to obtain the matters referred to in Special Condition 5.2(a)(ii) and the deposit of the Plan of Division for the Land,
and the Vendor will keep the Purchaser informed as to progress being made to obtain the deposit of the Plan of Division.
Purchaser’s Acknowledgment
For the avoidance of doubt the Purchaser acknowledges that Settlement is conditional upon the deposit of the Plan of Division to create the Land as an allotment for the purposes of the Real Property Act 1886 and accordingly, the Purchaser must not delay or refuse to complete this contract if any other allotments have not been created within the Bowden Project at Settlement.
Amendment to Plan of Division
Subject to Special Condition 6, if having made all necessary applications under Special Condition 5.2(a)(ii) and taken all reasonable steps under Special Condition 5.2(a)(iii), the Vendor is unable to obtain the deposit of the Plan of Division for the Land on or before the Division Plan Condition Date, then the Parties shall negotiate in good faith during a period of not more than one (1) month, with a view to making such adjustments to the Plan of Division for the Land and such consequential adjustments to this contract as may be reasonably required in order to obtain the deposit of an adjusted Plan of Division and the parties shall otherwise co-operate fully with each other. The Vendor shall bear the cost of the preparation and lodging of any adjusted Plan of Division and each party shall bear their own costs of and incidental to the negotiations.
Best Endeavours
The Vendor will use its best endeavours to:
(i) seek and obtain all necessary and desirable authorisations, consents and approvals required at law in relation to the Plan of Division to enable its deposit; and
(ii) obtain the grant of development approval in respect to the Plan of Division from the relevant authority.
Purchaser to Assist
The Purchaser must give the Vendor all necessary assistance to achieve satisfaction of the conditions the subject of Special Condition 5.1(a)(i) and will execute all documents and do all things reasonably necessary to obtain all approvals and deposit of the Plan of Division, including the grant of development approval in respect to the Plan of Division from the relevant authority.
Sunset Date for Deposit
If after three (3) months of the Division Plan Condition Date the Vendor has been unable to obtain the deposit of the Plan of Division, or the Deposit of an adjusted Plan of Division under Special Condition 5.2(c) then either party may terminate this contract by giving written notice of termination to the other and
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neither party shall have any claim against the other on account of the termination or the loss or damage which may be caused to a party by the termination.
No obligation to Settle
Despite this Special Condition 5.2 or any other provision of this contract, until there has been a deposit of the Plan of Division or the adjusted Plan of Division for the Land, the Purchaser shall be under no obligation to settle on this contract.
No Certificate of Title at Settlement
(i) The Purchaser acknowledges that on the Date of Settlement, no separate Certificate(s) of Title for the Land may have issued or be available for presentation to the Purchaser. If that is the case, the Purchaser must not refuse to settle on that account.
(ii) The Purchaser agrees that the Vendor has complied with the Vendor’s obligations under this contract if the Memorandum of Transfer signed by the Vendor for the transfer of the Land to the Purchaser refers to the Land as a lot(s) in a deposited plan.
5.3 Approval of Purchaser’s Detailed Concept Plans
Informal Design Meeting
Prior to submitting the Purchaser's Detailed Concept Plans in accordance with Special Condition 5.3(b) the Purchaser is required to undertake a concept design review at an informal meeting of the Design Review Panel, to ensure that the design fundamentals are addressed and consistent with the Allotment Control Plan and the Urban Design Guidelines. The Informal Design Meeting is additional to any other meeting of the Design Review Panel referred to in this Special Condition 5.3.
Preparation and approval of the Purchaser’s Detailed Concept Plans
Prior to constructing any improvements on the Land and in any event within 30 Business Days of the Purchaser executing this contract, the Purchaser will prepare and submit to the Vendor for approval by the Vendor the Purchaser’s Detailed Concept Plans evidencing how the Purchaser intends to develop the Land into residential dwellings in accordance with the Urban Design Guidelines.
Urban Design Guidelines
(i) The Purchaser acknowledges and agrees that the Urban Design Guidelines:
(A) are not intended to be prescriptive but are intended to encourage exceptional and innovative design outcomes;
(B) provide for certain minimum mandatory design elements which the Vendor considers must be satisfied in respect of any development to be undertaken on the Land; and
(C) specify other matters, the inclusion of which the Vendor considers are desirable in any development undertaken on the Land.
(ii) The Purchaser further acknowledges and agrees that as between the Vendor and the Purchaser, and notwithstanding any other provision of this contract, the Vendor alone has the sole discretion in determining whether any proposed development in respect of the
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Land meets the requisite design standards intended by the Urban Design Guidelines
Green Star Requirements
The Purchaser acknowledges and agrees that any proposed development on the Land must meet the Green Star ‘design and as built’ minimum of 5 star Green Star requirements as set out in the Urban Design Guidelines.
Requirements of Purchaser’s Detailed Concept Plan
The Purchaser’s Detailed Concept Plans submitted by the Purchaser to the Vendor must be in a form sufficient for the Purchaser to lodge for provisional development plan consent and must include the following:
(i) detailed floor plans at the scale of 1:100 at A1 and drawings of the proposed building(s) showing the internal building layout including furniture layout, and the external appearance, façade, style and character;
(ii) a Statement of Design Intent;
(iii) details of the external materials and finishes to be used on the proposed building(s);
(iv) a building plan drawn to scale which shows northern, eastern, southern and western elevations;
(v) cross sections plans which include dimensions, natural ground level, floor level, ceiling height and maximum height of the building;
(vi) a site plan drawn to scale which shows the location of the building(s) (and other improvements the Purchaser intends to construct) on the Land as well as the intended location of any common areas, the driveway cross over and any other access points to and from the Land;
(vii) a three dimensional (3D) physical model at the scale of 1:200 of the proposed building(s) within the context the surrounding development;
(viii) colour perspectives and elevation drawings (i.e. streetscape view) of the proposed building(s) façade in context of the existing and/or approved adjacent building(s).
(ix) a “crime prevention through environmental design” statement (CPTED) outlining how the proposal responds to CPTED principles;
(x) shadow diagrams indicating the extent of overshadowing of the proposed building(s) on adjoining properties on the winter solstice (21 June) at the times of 9.00 am, 12.00 noon and 3.00 pm.
(xi) a plan of the proposed storm water drainage system;
(xii) a plan of any proposed earthworks or grading;
(xiii) a detailed landscaping plan;
(xiv) an indicative construction management plan outlining:
(A) waste management strategy for the Land (both during construction and when the development is complete);
(B) access and parking arrangements during construction;
(C) construction methodology; and
(D) site branding.
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(xv) all other necessary details to prove that the building(s) will be constructed (and the Land will be developed) in a manner which complies with the Urban Design Guidelines and Allotment Control Plan;
(xvi) a site plan detailing all internal and external service connection points including gas, Recycled Water, electricity and optical fibre;
(xvii) a plan of the proposed Purple Pipe Infrastructure, as defined in Special Condition 13.2(f); and
(xviii) a preliminary version of the Green Star Application Template, completed with as much information as is reasonably known and/or available to the Purchaser at that time.
Review and Approval of the Purchaser’s Detailed Concept Plans
(i) Upon receiving the Purchaser’s Detailed Concept Plans, the Vendor will, with the assistance of the Design Review Panel (if sought by the Vendor), as soon as is practicable for the Vendor to do so, but in any event within 10 Business Days, review and assess them against the Urban Design Guidelines and this contract.
(ii) If after review of the Purchaser’s Detailed Concept Plans, the Vendor does not approve them, the Vendor must with the assistance of the Design Review Panel (if sought by the Vendor) respond in writing to the Purchaser notifying the Purchaser of this fact (First Response Notice). This First Response Notice may include the reason(s) why the Vendor has withheld its approval and may provide suggestions or advice as to how the Vendor believes the Purchaser’s proposal may be improved.
First Opportunity to Amend Detailed Concept Plans
(i) In the event that the Vendor does not approve the Purchaser’s Detailed Concept Plans in accordance with paragraph (f)(ii) above, the Purchaser may amend and re-submit the Purchaser’s Detailed Concept Plans (Re-submitted Plans) for approval by the Vendor.
(ii) Notwithstanding paragraph (g)(i) above, the Purchaser is under no obligation to make any amendments to the Purchaser’s Detailed Concept Plans, however if the Purchaser does not provide the Re-submitted Plans for approval within 10 Business Days of the Vendor providing the Purchaser with the First Response Notice, then the Vendor may terminate this contract by a further notice in writing to the Purchaser.
Review of Re-submitted Plans
Within 10 Business Days of the Vendor receiving the Re-submitted Plans the Vendor will, with the assistance of the Design Review Panel (if sought by the Vendor), review the Re-submitted Plans in accordance with Special Condition 5.3(f)(i) and provide the Purchaser with notice in writing (Second Response Notice) that the Vendor has:
(i) Approved the Purchaser’s Re-submitted Plans; or
(ii) Requires further amendments to the Re-submitted Plans;
Final Opportunity to Amend Detailed Concept Plans
(i) If the Vendor provides a Second Response Notice to the Purchaser in accordance with Special Condition 5.3(h)(ii) above, then the Purchaser may within 10 Business Days of receiving the Second Response
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Notice, amend and re-submit its plans one last time (Final Re-submitted Plans) for approval by the Vendor.
(ii) The Purchaser is under no obligation to make any amendments to the Purchaser’s Re-submitted Plans, however if the Purchaser does not provide the Final Re-submitted Plans for approval by the Vendor within 10 Business Days of the Vendor providing the Purchaser with a Second Response Notice pursuant to Special Condition 5.3(h)(ii), then the Vendor may terminate this contract by notice in writing to the Purchaser.
Notice of Approval or Termination
If the Purchaser provides Final Re-submitted Plans for approval by the Vendor in accordance with Special Condition 5.3(i)(i), the Vendor will, within 15 Business Days of the Vendor receiving the Final Re-submitted Plans, with the assistance of the Design Review Panel (if sought by the Vendor), review the Final Re-submitted Plans in accordance with Special Condition 5.3(f)(i) and provide the Purchaser with notice in writing (Final Response Notice) that the Vendor has either:
(i) approved the Purchaser’s Final Re-submitted Plans; or (ii) terminated this contract.
Acknowledgement
The Purchaser acknowledges and agrees that:
(i) notwithstanding any other provision of this contract, the Vendor may give or refuse its approval of the Purchaser’s Detailed Concept Plans (including any subsequent submitted plans) at its absolute discretion and without the need to provide any reasons for giving or refusing its approval;
(ii) notwithstanding the Vendor’s approval of the Purchaser’s Detailed Concept Plans (including any subsequent submitted plans), nothing in this Special Condition relieves the Purchaser of its duty or responsibility to obtain council or any other necessary statutory consents to the proposed construction of the building(s) on the Land;
(iii) Any approval of the Vendor obtained pursuant to this Special Condition 5.3 shall, unless extended by the Vendor in writing, lapse upon the expiration of a period of one (1) year commencing on the date of the approval in writing if the works to which the approval relates are not in the opinion of the Vendor Substantially Commenced within that period; and
(iv) Notwithstanding any other provision of this contract, the approval by the Vendor of the Purchaser’s Detailed Concept Plans may be provided at any time by the Vendor providing the Purchaser with notice in writing to that effect.
5.4 Development Plan Consent
If the Vendor approves the Purchaser’s Detailed Concept Plans in accordance with Special Condition 5.3:
Within 30 Business Days of the Vendor providing the Purchaser with notice approving the Purchaser’s Detailed Concept Plans, the Purchaser must lodge for approval with the relevant authority in accordance with the Development Act 1993 (SA), an application for development plan consent which reflects the Purchaser’s Detailed Concept Plans (as approved by the Vendor) in all material respects (Development Application).
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The Purchaser agrees to use its best endeavours to obtain development plan consent within six (6) months from the Execution Date.
The Purchaser acknowledges and agrees that:
(i) the Vendor may provide the Design Advice Sheet to the relevant authority and that the Design Advice Sheet may otherwise be made public; and
(ii) the Purchaser releases and holds harmless the Vendor from all Loss arising howsoever from the Design Advice Sheet being provided to the relevant authority and/or otherwise being made public.
The Vendor:
(i) consents to the Purchaser making the application for development plan consent in accordance with Special Condition 5.4(a); and
(ii) agrees to give the Purchaser all necessary assistance to achieve satisfaction of the condition the subject of Special Condition 5.4(a) and will execute all documents and do all things reasonably necessary for the Purchaser to obtain the grant of development plan consent in respect to the proposed development the subject of the Purchaser’s Detailed Concept Plans (as approved by the Vendor).
The Purchaser must immediately notify the Vendor in writing if the Development Application is:
(i) not approved and the Purchaser elects to appeal the decision; (ii) approved but made subject to conditions which have the effect of
changing or varying the Purchaser’s Detailed Concept Plan as approved by the Vendor;
(iii) approved but made subject to conditions not satisfactory to the Purchaser and the Purchaser elects to appeal against that part of the decision which is not satisfactory to the Purchaser;
(iv) approved and some other person lawfully institutes an appeal against the development consent;
(v) not decided by the relevant authority (within the meaning of the Development Act 1993) prior to the date being six (6) months from the Execution Date (or any extension of that date pursuant to paragraph (c).
The Vendor may, upon receiving a notice from the Purchaser in accordance with paragraph (e) above, respond to the Purchaser in writing with such comments and suggestions as the Vendor reasonably believes necessary to ensure that the plans and specifications the subject of the Development Application reflect the requirements of the Urban Design Guidelines and materially reflect at all times the Purchaser’s Detailed Concept Plans as approved by the Vendor.
To allow the Vendor the opportunity to respond in accordance with paragraph (f) above, the Purchaser agrees that it will not respond to the relevant authority or commence any appeal process within 10 Business Days of providing the Vendor with a notice in accordance with paragraph (e).
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6. Variations to the Project and/or Urban Design Guidelines
6.1 Variations to the Project or the Plans
The Vendor may:
(i) procure any alteration or variation of or to the Land, and/or the Plan of Division and/or the Urban Design Guidelines and/or the Bowden Project Masterplan to comply with the lawful requirements of any Authority;
(ii) procure any alteration or variation of or to the Land, and/or the Plan of Division and/or the Urban Design Guidelines and/or the Bowden Project Masterplan that the Vendor requires or deems desirable in its discretion,
without any necessity for the Vendor to obtain the consent of or to consult with the Purchaser in respect of any such alteration variation or substitution and the Purchaser will have no claim upon or recourse against the Vendor or in respect of any such alteration variation or substitution nor delay or refuse to settle by reason of any alteration variation or substitution including any:
(iii) order of staging or sequencing in the construction of the Bowden Project;
(iv) addition or deletion of areas of land from the Bowden Project,
(v) increase or reduction in the number of or change to the type, size, configuration, characteristic or other attributes of the lots in the Bowden Project;
(vi) increase or reduction in the number of buildings, reserves, parks, car parks, roads and other improvements that are intended to be constructed as part of the Bowden Project or change to the type, size, configuration, characteristic or other attributes of any such improvements,
PROVIDED THAT all such alterations or variations do not have a material or substantial impact on the Key Attributes of the Land.
Notwithstanding paragraph (a) above, the Vendor will endeavour to inform the Purchaser of any alteration or variation to the Land, and/or the Plan of Division and/or the Urban Design Guidelines as soon as is reasonably practicable for the Vendor to do so, having regard to the nature of the alteration(s) or variation(s) and the relevant circumstances.
6.2 No Objection
For the purposes of Special Condition 6.1 and this contract generally, the Purchaser agrees that:
it will not make any objection, requisition or claim for compensation against the Vendor nor rescind or terminate this contract, nor delay or refuse to settle by reason of any alterations or variations to the Land, the Plan of Division and/or the Allotment Control Plan and/or the Draft Plan of Division and/or the Bowden Project that do not have a material or substantial impact on the Key Attributes of the Land.
any variation to the size of the Land of 5% or less shall be deemed a non-material variation and/or a variation that does not substantially alter the size of the Land or the Key Attributes of the Land and/or a variation that does not have a material or substantial impact on the Key Attributes of the Land.
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6.3 Variation to Purchase Price
The Purchaser acknowledges and agrees:
that where any alteration or variation effected in accordance with Special Condition 6.1 results in a change to the area of the Land from that area shown on the Draft Plan of Division and/or the Allotment Control Plan, the Purchase Price will be increased or reduced (as the case may be) in proportion with any increase or reduction in the area of the Land,
the amount by which the Purchase Price will be increased or reduced (as the case may be) will be determined by multiplying the difference in the area of the Land shown on the Draft Plan of Division and/or the Allotment Control Plan from the area of the Land shown on the Plan of Division multiplied by the Per Square Metre Rate (as defined hereinafter).
the Vendor will notify the Purchaser of any increase or reduction (as the case may be) in the Purchase Price as soon as reasonably practicable, but in any event not less than 10 Business Days prior to the Date for Settlement and the amended Purchase Price will be payable by the Purchaser to the Vendor at Settlement in accordance with the terms of this contract.
for the Purpose of this Special Condition 6.3 “Per Square Metre Rate” means that dollar amount calculated by dividing the Purchase Price by the area of the Land (expressed in square meters) as determined by reference to the Allotment Control Plan.
7. Variations to the Purchaser’s Nominated Consultancy Team
The Purchaser acknowledges and agrees that:
the composition of the Purchaser’s Nominated Design Team identified in the Form of Offer was a material factor in the Vendor’s decision to accept the Purchaser’s offer to purchase the Land;
it will not without the prior written consent of the Vendor:
(i) remove any consultants or service providers from the Purchaser’s Nominated Consultancy Team; or
(ii) engage any additional consultants or service providers to the Purchaser’s Nominated Consultancy Team; and
the Vendor may in its absolute discretion:
(i) refuse its consent (without having to provide any reasons); or (ii) give its consent (with or without conditions), to any request made in writing by the Purchaser for approval to change the Purchaser’s Nominated Consultancy Team.
8. Encumbrances
8.1 Purchaser’s Obligations
The Purchaser acknowledges and agrees that the Vendor requires the Purchaser:
to grant to the Vendor the Developer Encumbrance immediately after Settlement to ensure the Purchaser complies with its obligations under this contract and the Urban Design Guidelines;
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to cause any Subsequent Purchaser of a Building Allotment to grant to the Vendor an encumbrance over the Building Allotment substantially in the form of the Subsequent Building Allotment Encumbrance, imposing certain restrictive covenants relating to the basis of future development of that Building Allotment; and
to enter into the Car Parking Agreement immediately after Settlement to ensure the Purchaser complies with its obligations to provide public parking on the Land as required by this contract.
8.2 Developer Encumbrance
The Purchaser agrees:
to grant to the Vendor, effective from the time of Settlement, an encumbrance over the whole of the Land being:
(i) the Developer Encumbrance, which encumbrance:
(A) will be partially released by the Vendor in respect of either the Land or a portion of the Land immediately prior to the transfer of a Building Allotment by the Purchaser to a Subsequent Purchaser in respect of the Land or the relevant portion (as the case might require) provided that at the time that the Purchaser requests that it be released the Vendor is satisfied that the Purchaser has complied with the terms of the Developer Encumbrance and this contract in respect of the Land; and
(B) will require the Purchaser when subsequently disposing of its interest in a Building Allotment(s) to a Subsequent Purchaser, to procure that the Subsequent Purchaser grants an encumbrance over the Building Allotment in favour of the Vendor being the Subsequent Building Allotment Encumbrance;
the Purchaser must execute the Developer Encumbrance over the Land prior to the Date for Settlement;
the Developer Encumbrance will be prepared by the Vendor’s solicitor and lodged for registration over the Land immediately after registration of the Memorandum of Transfer of the Land and in priority to all other instruments, at the sole cost and expense of the Purchaser;
that the Vendor may, prior to Settlement, complete any blank details or make any reasonable amendments to the Developer Encumbrance to ensure it is in registrable form; and
that while the Developer Encumbrance is entered into for the purposes of the Vendor’s concept for the Bowden Project, this does not mean that the Vendor is under any obligation to enforce the Developer Encumbrance.
8.3 Subsequent Building Allotment Encumbrance
The Purchaser (at the Purchaser’s sole cost and expense, but which cost may be passed on to Subsequent Purchasers) must procure each Subsequent Purchaser to grant and execute the Subsequent Building Allotment Encumbrance over the Building Allotment prior to settlement of the sale by the Purchaser of the Building Allotment to the Subsequent Purchaser, in respect of which:
the Purchaser must procure the preparation of the Subsequent Building Allotment Encumbrance over the Building Allotment and execution of the Subsequent Building Allotment Encumbrance, by the Subsequent Purchaser in
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favour of the Vendor, prior to settlement of the disposal of the Building Allotment to the Subsequent Purchaser; and
the Purchaser must procure the Subsequent Building Allotment Encumbrance over the Building Allotment to be lodged for registration on the certificate of title for the Building Allotment immediately after registration of the Memorandum of Transfer of the Building Allotment from the Purchaser to the Subsequent Purchaser and in priority to all other instruments.
8.4 Car Parking Agreement
The Purchaser agrees to enter the Car Parking Agreement governing the Purchaser’s use of the Land and securing the obligations of the Purchaser pursuant to Special Condition 14.1(b) of this contract.
8.5 Purchaser’s Indemnity
The Purchaser indemnifies the Vendor and keeps the Vendor fully indemnified at all times hereafter, from and against any and all claims, demands, losses, expenses, costs and damages which the Vendor may suffer or sustain arising from a breach by the Purchaser of its obligations under this Special Condition 8 including (without limitation), a failure to:
procure from a Subsequent Purchaser and/or relevant community corporation (as the case may be), the Subsequent Building Allotment Encumbrance; and/or
register the Subsequent Building Allotment Encumbrance on the certificate of title for the Building Allotment immediately after the registration of the Memorandum of Transfer of the Building Allotment from the Purchaser to the Subsequent Purchaser.
9. Affordable Housing Outcomes
9.1 The Purchaser must develop and offer for sale as Affordable Housing Apartments not less than fifteen per cent (15%) of the total number of dwellings to be created on the Land (the “Outcomes”).
9.2 The Purchaser must prepare an Affordable Housing Plan for approval by the Vendor.
9.3 The Affordable Housing Plan must specify the number, type and floor level within the building or buildings that the Affordable Housing Apartments that are to be offered for sale.
9.4 An Affordable Housing Plan can be amended from time to time by the Purchaser, provided that:
the Outcomes are delivered in the amended Affordable Housing Plan; and
the amended Affordable Housing Plan is approved by the Vendor within fourteen (14) days of the amendment being made.
9.5 The Purchaser must ensure that all Affordable Housing Apartments are developed and offered for sale in accordance with the approved Affordable Housing Plan (subject to any amendments agreed pursuant to Special Condition 9.4) and in accordance with
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any development authorisation received in respect of the application for the development of the Land.
9.6 The Purchaser must ensure that:
Affordable Housing Apartments are well integrated and complementary in design and appearance to other dwellings within the development;
in the event that the Purchaser is to develop the Land in stages, then the staging of the development must provide for the development of Affordable Housing Apartments concurrently with the development of other land and dwellings;
Affordable Housing Apartments are equivalent to other dwellings in the development in their energy efficiency, insulation, water conservation mechanisms, and solar access rating; and
the exterior appearance of Affordable Housing Apartments are reasonably similar to other dwellings built on the Land in the nature and quality of exterior building materials and finishes.
9.7 Subject to Special Condition 9.9 and 9.14, the Purchaser must not:
advertise Affordable Housing Apartments, or
sell Affordable Housing Apartments,
at a price greater than the Maximum Price.
9.8 The parties acknowledge and agree that the Purchaser may apply to the Minister in accordance with the Affordable Housing Gazette notice (Determination of Criteria for the Purposes of the Concept of Affordable Housing, Regulation 4 of Development Act 1993) for a variance to the Maximum Price of up to 15% where certain criteria are met in relation to environmental inclusions, unique finance options, location to public transport and dual occupancy.
9.9 If the Purchaser makes an application to the Minister pursuant to Special Condition 9.8 of this contract for a price variation which application is approved by the Minister (Price Variation) the Maximum Price for the purposes of this contract will vary according to the price variation.
9.10 The Purchaser must take reasonable steps to market Affordable Housing Apartments to Eligible Buyers.
9.11 The Purchaser must not sell an Affordable Housing Apartment to any person other than an Eligible Buyer unless and until the Purchaser has advertised the Affordable Housing Apartment through the Website (and any other marketing mediums that the Purchaser and the Vendor agree) continuously for at least thirty (30) days after development plan consent has been granted for the Affordable Housing Apartment.
9.12 If any Affordable Housing Apartment remains unsold after the 30 day advertising period specified in Special Condition 9.11 then that Affordable Housing Apartment may be offered for sale on the open market, provided that if any Affordable Housing Apartment
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still remains unsold at Practical Completion, a further period of fourteen (14) days of continuous advertising through the Website is required.
9.13 In the event that no Eligible Buyer makes an offer during the which complies with the above conditions within the periods specified in the above conditions, then the Purchaser may sell the Affordable Housing Apartment to any person.
9.14 The Purchaser may sell Affordable Housing Apartment at a price higher than the Maximum Price if:
the Eligible Buyer is of the class set out in clause 2(2)(b,c,d,e) of the Notice; or
the “Dwelling”, as that term is defined in the Notice:
(i) complies with clause 2(3) of the Notice; (ii) any approval to a variation in the price is approved by the Chief
Executive Renewal SA (or their delegate) pursuant to clause 2(3) of the Notice.
10. Community Scheme Documents
10.1 Community Title Development
In accordance with the Urban Design Guidelines and this contract, the Land will be developed by the Purchaser as a community title scheme and divided into community lots under the Community Titles Act 1996 (SA).
10.2 Approved Scheme Documents
The Purchaser acknowledges and agrees that:
it will not lodge for registration with the Lands Titles Office the by-laws of and scheme description (Scheme Documents) of the relevant community corporation under the Community Titles Act 1996 (SA), without the Vendor providing its prior written approval to the Scheme Documents, which approval the Vendor will not unreasonably withhold;
the Vendor may reasonably refuse to give its approval if the relevant Scheme Documents:
(i) are not in the reasonable opinion of the Vendor consistent with the Urban Design Guidelines and the Purchaser’s Detailed Concept Plans as approved by the Vendor;
(ii) do not provide that each community lot must be used in a manner consistent with the Urban Design Guidelines and Subsequent Building Allotment Encumbrance;
(iii) do not provide that any development on the common property controlled by the relevant community corporation must be first approved by the Vendor in writing, as if the common property was subject to the Subsequent Building Allotment Encumbrance;
(iv) do not prohibit the development of any dwelling, storage shed, garage or carport on the common property; or
(v) do not provide that the clauses in relevant Scheme Documents which comply with paragraphs (ii), (iii) and (iv) cannot be altered by the community corporation without the prior written consent of the Vendor.
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The Purchaser must attach a copy of the Subsequent Building Allotment Encumbrance to the by-laws.
The Purchaser must, if requested by the Vendor, attach a copy of the Urban Design Guidelines to the Scheme Documents.
11. Deposit
11.1 Amount plus GST
The Purchaser shall pay to the Vendor (or as the Vendor directs) the Deposit plus an amount equal to the GST payable in respect of the Deposit.
11.2 Investment
At the Vendor’s sole determination, the Deposit Holder will, if requested by the Vendor, invest the deposit in the name of the Vendor in an interest bearing deposit account at 24 hour call with a financial institution nominated by the Vendor.
11.3 Withdrawal for settlement
Not more than 5 business days before settlement, the Deposit Holder may withdraw the deposit together with any interest (less any taxes, bank charges and other expenses) and pay those moneys into the Deposit Holder’s trust account in readiness for settlement.
11.4 Interest payable to
The Deposit Holder must pay all interest earned on the investment of the deposit (less any taxes, bank charges and other expenses):
to the Vendor at Settlement; or
to the Vendor, if this contract is terminated due to the Purchaser’s default; or
to the Purchaser, if this contract is validly terminated by the Purchaser due to the Vendor’s default.
11.5 Documents
The Vendor and the Purchaser must execute any forms, authorisations and other documents and provide any information required by the Deposit Holder (including their tax file numbers) to enable the Deposit Holder to deal with the Deposit as contemplated by this Special Condition.
11.6 Risk
The Deposit is at the risk of the Purchaser. The Purchaser may not sue the Vendor or the Deposit Holder for any Loss suffered or incurred by the Purchaser in relation to or in connection with the Deposit.
12. Bank Guarantee in Lieu of Deposit
In lieu of payment of the Deposit under clause 16 of the General Conditions, the Purchaser may at the Purchaser’s discretion, deliver to the Vendor:
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a Bank Guarantee in favour and for the benefit of the Vendor on the following terms:
(i) the Bank Guarantee will be an irrevocable and continuing bank guarantee payable on demand, for the amount equal to the Deposit;
(ii) the Bank Guarantee must be continuously in existence during the period commencing on its delivery and expiring on the date the Purchaser is entitled to a release or re-delivery of the Bank Guarantee pursuant to Special Condition 12(b); and
(iii) the Bank Guarantee will entitle the Vendor to make demand on the Bank for payment of any part of or the entire sum under the Bank Guarantee if at any time during the term of the Bank Guarantee there has been a failure by the Purchaser to pay any money at the time specified for such payment under this contract and the Vendor would be entitled to forfeit or retain the Deposit, without any need for the Bank to give notice to or seek permission from the Purchaser;
the Purchaser will not be entitled to a re-delivery or release of the Bank Guarantee until:
(i) Settlement and the Purchaser has paid in full the purchase price pursuant to clause 6 of the General Conditions and all other money payable to the Vendor under this contract, or
(ii) this contract is terminated by the Purchaser as a result of the Vendor’s breach of its obligations under this contract; or
(iii) this contract is terminated because the requirements in Special Condition 5 were not satisfied;
notwithstanding anything to the contrary in this contract the Bank Guarantee in the possession of the Vendor or the Deposit Holder shall be delivered to the Purchaser immediately after this contract is terminated if the termination is other than as a result of the Purchaser’s breach of its obligations under this contract;
the Purchaser acknowledges and agrees that:
(i) if any Bank Guarantee is delivered by the Purchaser or by anyone else purporting to act on behalf of the Purchaser to the Vendor, the Deposit Holder or the Vendor’s Sales Agent and the Bank Guarantee names the Purchaser incorrectly or does not name the Purchaser or names another person or entity as the purchaser or refers to the Land purchased by the Purchaser incorrectly or does not refer to the Land or refers to the incorrect amount or refers to any other detail incorrectly or not at all, the Vendor , the Deposit Holder or the Vendor’s Sales Agent may nevertheless accept the delivery of such Bank Guarantee as a Bank Guarantee delivered by the Purchaser pursuant to this Special Condition; and
(ii) the Purchaser may not object or take any action or make any claim against the Vendor in respect of the exercise of any of its rights to call for payment or otherwise in relation to such Bank Guarantee and further indemnifies the Vendor against all costs, claims and liability that the Vendor may suffer or incur in relation to the exercise of any of its rights to call for payment or otherwise in relation to such Bank Guarantee; and
the provisions of this Special Condition 12 will not in any way limit, restrict or prejudice the rights of the Vendor to exercise such additional rights, remedies and powers as the Vendor may consider appropriate as a result of the
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Purchaser’s default (including without limiting the generality of the foregoing, the Vendor’s rights under clause 6 of the General Conditions.
13. Vendor’s Infrastructure Obligations
13.1 Vendor’s Infrastructure Obligations
The Vendor will use its reasonable endeavours to procure the construction and installation of the following access to services:
(i) An electrical services pit outside the boundary of Land;
(ii) A potable and non-potable water service connection point;
(iii) A sewer connection point;
(iv) An NBN Co broadband connection point;
(v) A stormwater connection point, on or before Settlement. If the infrastructure is not constructed on or before Settlement, the Vendor will procure that it is constructed as soon as practicable thereafter.
Notwithstanding anything herein contained, the Purchaser acknowledges and agrees as follows:
(i) a natural gas main is available in Third Street for connection by the Purchaser;
(ii) the Park Terrace frontage of the Land currently incorporates 66KV power lines which may further impact the setback for the Land (being in addition to the requirements of the urban design guidelines). The Purchaser acknowledges that these power lines will remain in their current location and must assume that undergrounding of the power lines will not occur;
(iii) the Purchaser must pay all costs of all electrical infrastructure (including, but not limited to, one or more transformers) and augmentation charges required to service any demand for electricity arising from any building (including dwellings) to be erected on the Land;
(iv) the Purchaser has made its own investigations and enquiries regarding the nature and extent of all infrastructure and services (including, but not limited to, electricity) servicing the Land and will be responsible for all costs associated with any additional infrastructure or services required as a result of the Purchaser's development of the Land and for liaising with all relevant authorities in relation to those servicing requirements;
(v) the construction and installation of the Infrastructure Works is the extent of the Vendor's contribution to any service infrastructure required to service the Purchaser's development on the Land; and
(vi) any services, and the location of any services, and public realm infrastructure shown on the Allotment Control Plan are indicative only.
14. Purchaser’s Development Obligations
14.1 Purchaser’s Development Obligations
The Purchaser agrees that it will:
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(i) within 6 (six) months of Settlement (or such further time as the Vendor in its absolute discretion may agree in writing with the Purchaser) Substantially Commence development on the Land; and
(ii) continuously proceed with and complete the construction of the development on the Land such that the building(s) and all other improvements and landscaping on the Land achieve Practical Completion within 12 (twelve) months (or such further time as the Vendor in its absolute discretion may agree in writing with the Purchaser) of when construction first commenced.
The Purchaser will ensure that the development to be undertaken on the Land incorporates a minimum of 120 public car parking spaces that are available to the public for the general benefit of surrounding retail and commercial uses including, but not limited to the businesses operating from the properties known as Plant 3 (CT6176/3) and Plant 4 (CT6183/364) and for these public car parks the first hour must be offered to the public free of charge. The Purchaser will enter into the Car Parking Agreement to ensure that this obligation is a continuing obligation restricting the use of the Land by all future owners.
The Vendor, in conjunction with other stakeholders including the City of Charles Sturt intends to establish a Retailer’s Main Street Association governing the Bowden retail precinct for the purpose of creating opportunities to benefit the retailers and local community. It is the Vendor’s expectation that the owner/s of the retail or commercial space and their tenants would participate in the Retailer’s Main Street Association. The association is likely to have a levy or membership fee to facilitate opportunities to benefit the retail and commercial activity of the area.
The Purchaser must ensure that all building and construction works on the Land are undertaken in accordance with:
(i) the Purchaser’s Detailed Concept Plans approved by the Vendor and which has development plan consent from the relevant authority;
(ii) the Urban Design Guidelines;
(iii) the Purchaser’s Green Star certification;
(iv) the Construction Management Plan;
(v) the Developer’s Encumbrance;
(vi) the Car Parking Agreement;
(vii) the law and the requirements of any relevant Authority; and
(viii) such further requirements as are set out in this contract.
14.2 Recycled Water Scheme
The Vendor will install the necessary Recycled Water Supply Infrastructure to supply Recycled Water to the Land and the Purchaser agrees that it will install and plumb the Purple Pipe Infrastructure to enable the on-supply of Recycled Water to each Building Allotment.
The Purchaser will, at its cost, be responsible for the installation and connection of a Recycled Water Meter to each Building Allotment and for installing and connecting and plumbing the Purple Pipe Infrastructure. The Purchaser must pay (or procure the payment of) all water connection fees for each Building Allotment.
The Purchaser must at its cost acquire, install and plumb the necessary Purple Pipe Infrastructure in accordance with:
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(i) the Recycled Water Plumbing Guide published and amended by SA Water from time to time;
(ii) all relevant regulations, codes, planning authorisations and consents;
(iii) the Urban Design Guidelines; and
(iv) the terms of this contract.
The Purchaser acknowledges and agrees that:
(i) the Purchaser will be solely responsible for the costs of all Recycled Water supplied to the Land; and
(ii) the Vendor does not warrant or guarantee the quality, volume, pressure or uninterrupted supply or cost of Recycled Water to the Land; and
(iii) the Purchaser is responsible for all the costs of the supply, installation, maintenance and repair of the Purple Pipe Infrastructure and Recycled Water Meter and any audit and any final fix commissioning fees in respect of the Purple Pipe Infrastructure.
The Purchaser will release and hold the Vendor harmless for any costs the Purchaser incurs or any loss or damage suffered by the Purchaser arising directly or indirectly as a result of:
(i) the supply of Recycled Water to the Land; or (ii) the Vendor not supplying Recycled Water to the Land.
For the purposes of this Special Condition 14.2 the following definitions apply:
(i) Purple Pipe Infrastructure means the pipes, Recycled Water Meter and all other infrastructure necessary, including but without limitation the acquisition and installation of a Recycled Water Meter, to enable the Building Allotment to be connected to the Recycled Water Supply Infrastructure and to all toilets and those restricted number of taps, in any dwelling constructed on the Building Allotment as are required to be plumbed to the Recycled Water system in accordance with the Urban Design Guidelines;
(ii) Recycled Water means non-potable, reclaimed, recycled or reused water, including without limitation recycled stormwater, recycled effluent, native groundwater, potable water or rain water, or any combination of these and may include any combination of these with potable water or rainwater, provided that the quality of such Recycled Water will not be less than Class A as classified by the South Australian Reclaimed Water Guidelines;
(iii) Recycled Water Meter means the water meter installed on the Land or Building Allotment (as the case may be) which is or will be connected to the Recycled Water Supply Infrastructure and which measures the volume of Recycled Water which passes from the Recycled Water Supply Infrastructure and is used on the Land or in the Building Allotment (as the case may be);
(iv) Reclaimed Water Guidelines means the South Australian Reclaimed Water Guidelines published by the Environment Protection Authority and the Department of Human Services;
(v) Recycled Water Supply Infrastructure means the Recycled Water mains supply network and other infrastructure which will facilitate the delivery of Recycled Water to the Recycled Water Meter for supply of Recycled Water to the Land.
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15. Sales and Marketing
15.1 Background
As the Vendor requires a consistent approach to the sale and marketing of Building Allotments in the Bowden Project and to preserve the value of the Vendor’s Bowden Project “brand”, the Vendor has set out certain obligations within the Branding Guidelines in respect of these matters.
15.2 Purchaser’s Obligations
The Purchaser acknowledges and agrees that it will:
observe and comply with the relevant Branding Guidelines relating to the sale, marketing and branding of Building Allotments within the Bowden Project;
procure any Sales Agent it may appoint to market and sell Building Allotments from time to time to observe and comply with the relevant Branding Guidelines relating to the sale, marketing and branding of Building Allotments within the Bowden Project; and
not less than 14 days before any expected public sales release of Building Allotments constructed (or to be constructed) on the Land, provide to the Vendor (or such person authorised by the Vendor) such information relating to the Building Allotments that may be relevant to enable the Vendor (or such person authorised by the Vendor) to produce marketing information and material including (but not limited to), the expected date of release and the number, type and location of the Building Allotments that are to be released for sale.
15.3 Purchaser’s Appointment of Vendor’s Sales Agent
To assist in maintaining the consistency of style and approach to the sale of Building Allotments desired by the Vendor throughout the Bowden Project and to preserve the Vendor’s Bowden Project “brand”, Purchaser may engage the Vendor’s Sale Agent to exclusively undertake the marketing and sale of Building Allotments to potential third party purchasers.
The Purchaser is under no obligation to engage the Vendor’s Sale Agent, however in the event that the Purchaser elects to exclusively appoint the Vendor’s Sale Agent for the purpose of marketing and selling Building Allotments, the Purchaser will through the Vendor’s Sale Agent and subject to paragraph (c) below, have access to:
(i) the Vendor’s sales and marketing database, which contains details of all persons who have expressed interest to the Vendor in purchasing completed dwellings in the Bowden Project or other future stages of the development; and
(ii) the Information and Sales Centre (to the extent that it continues to exist) established by the Vendor for the purposes of marketing the Bowden Project to the public.
All access rights and incentives provided to the Purchaser under Special Condition 15.3(b) shall be provided on such terms as may be determined by the Vendor in its absolute discretion from time to time.
The Purchaser acknowledges and agrees that the Vendor gives no warranty or commitment that there will continue to be at any time or from time to time during the course of the Purchaser's proposed project:
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(i) a Sales Agent appointed by the Vendor; or
(ii) a marketing and sales manager appointed by the Vendor; or
(iii) an Information and Sales Centre (and if there is a Information and Sales Centre, the location, size or design of the Information and Sales Centre)
and that it is currently intended that the Information and Sales Centre will not exist beyond 30 June 2019.
15.4 Purchaser’s Marketing Material
The Purchaser acknowledges and agrees that all sales, advertising and marketing material it intends to publish, distribute, disseminate, broadcast or otherwise produce for the purpose of marketing for sale any Building Allotments, must be submitted for prior approval by the Vendor’s marketing and sales manager not less than 5 clear Business Days beforehand.
The Vendor agrees that it will:
(i) respond in writing (including by email) to the Purchaser within 3 clear Business Days of receiving a request for approval; and
(ii) not unreasonably withhold its approval;
The parties agree that it will be reasonable for the Vendor to withhold its consent where the relevant material is not, in the reasonable opinion of the Vendor, consistent with the quality of the branding that has been developed by the Vendor for the Bowden Project.
The Purchaser will provide the Vendor with a copy of any final and approved sales, advertising and marketing material at least one (1) business day before the intended release (or publication) of such marketing material to the public.
16. Access for Construction and Post-settlement Matters
16.1 Continuing Works
The Purchaser acknowledges and agrees that:
(i) there may be continuing Development Works on or about the Development Site, after the Date of Settlement; and
(ii) the Vendor, including its contractors and authorised agents may need access to the Land after the Date of Settlement to carry out Development Works and the Purchaser grants the Vendor, a right to access the Land after Date of Settlement for those purposes.
The Vendor will, other than in the case of an emergency, provide the Purchaser with prior reasonable notice of its intention to access the Land.
16.2 Neighbouring Works
The Purchaser acknowledges and agrees that:
there may be a need for an owner of land adjacent to or in the immediate vicinity of the Land, including its contractors and authorised agents (Neighbouring Owner) to access the Land for the purpose of undertaking development on the Neighbouring Owner’s land.
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it will not unreasonably withhold its consent to any request from a Neighbouring Owner to access the Land for such purpose PROVIDED THAT such request is made in writing and (except in the case of an emergency) provides the Purchaser with reasonable notice of the Neighbouring Owner’s intention to access the Land.
16.3 Release and Indemnity
If the Vendor after the Date of Settlement carries out or causes to be carried out any Development Works in relation to any remaining portions of the Development Site (whether at the one time or in stages) the Purchaser:
(i) is aware that by reason of the physical proximity of the Land to the other portions of the development that there exists the possibility that there will be interference disturbance disruption or inconvenience suffered sustained or incurred by the Purchaser during the carrying out of such works;
(ii) will not make any claim or demand or any objection or requisition or bring any claim or action, injunctive proceedings or any other proceedings of any description against the Vendor, or any other person as a consequence of anything connected with any interference disturbance disruption and/or inconvenience occasioned to the Purchaser in the use and/or enjoyment of the Land during the carrying out of such works; and
(iii) does hereby absolutely and forever free release and discharge the Vendor from any action claim proceeding demand cost expense loss or damage which the Purchaser may have or claim against the Vendor by reason of any such interference disturbance disruption and/or inconvenience.
If the Purchaser sells the Land and/or assigns its rights and interests under this contract, the Purchaser must ensure that the assignee(s) confer upon the Vendor, the respective rights conferred on it in this Special Condition 16.
The Purchaser indemnifies the Vendor against all claims, costs, expenses, loss, damage and liability that any one or more of them may suffer or incur arising out of a breach of any of the provisions of Special Condition 16 by the Purchaser.
The Purchaser acknowledges that the Vendor holds the benefit of Special Condition 16 for itself and on trust for its contractors and authorised agents with the intent that any one or more of them will be able to enforce those provisions against the Purchaser in their own name.
16.4 Construction and Environmental Management Plan
The Purchaser must provide to the Vendor a Construction Management Plan for the development of the Land which must include details of the Purchaser’s proposed site signage, traffic management and construction access and environmental management activities during construction (based on the indicative construction management plan provided by the Purchaser as part of the Purchaser’s Detailed Concept Plans) no later than 60 days before the commencement of the construction of the development on the Land.
The Vendor has 21 days to respond to the Purchaser advising whether or not the final Construction Management Plan is approved by the Vendor. The Purchaser must not commence construction on the land until the Construction Management Plan is approved by the Vendor. The Vendor will not withhold its consent to the final Construction Management Plan if it is not materially
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different from the indicative construction management plan provided by the Purchaser as part of the Purchaser’s Detailed Concept Plans.
The Purchaser acknowledges that all construction works and associated activities must be undertaken within the Land including the provision of facilities during construction such as site offices, lunch rooms, toilets, bins and cranes. The Purchaser is not permitted to use any neighbouring land for these purposes without seeking the approval of the registered proprietor of the relevant land. The registered proprietor of the neighbouring land (including the Vendor, where relevant) is under no obligation to grant approval for access to the neighbouring land.
The Purchaser acknowledges and agrees that it will observe and comply, and will procure its contractors and employees to observe and comply at all times with the Construction Management Plan and all reasonable requests and directions made by the Vendor (or its appointed project manager) in relation to access to and from the Development Site and/or the Land.
The Purchaser must comply with the Developer Site Signage Guidelines whilst carrying out Development Works on the Land.
16.5 Damage to Public Infrastructure
The Purchaser acknowledges and agrees that:
in undertaking any development on the Land it shall (and will procure is contractor and employees to) exercise all reasonable care to avoid damage to, or destruction of any public infrastructure within the Development Site, including roads, kerbing and traffic furniture; and
it is liable to the Vendor and/or council or other such relevant authority for all damage or destruction reasonably thought to be caused by it (or its contractors and/or employee) to such public infrastructure, and indemnifies the Vendor against all Loss suffered or incurred by the Vendor as a result of or in connection with any such damage or destruction.
16.6 Open Space Contribution
The Vendor acknowledges and agrees that there will be no open space contribution required under section 50 of the Development Act 1993 (SA) in respect of any subsequent residential development undertaken on the Land in accordance with this contract (Open Space Contribution).
The Vendor indemnifies and will keep indemnified the Purchaser against any claim for payment of an Open Space Contribution made by the Development Assessment Commission or such other relevant authority in respect to the Purchaser’s subsequent development of the Land.
17. Default and Termination Post Settlement
17.1 Termination for Insolvency
Following the Purchaser completing the purchase of the Land under this contract, and prior to the Purchaser selling or otherwise disposing of its entire interest in the Land:
the Vendor may, by service of written notice on the Purchaser terminate this contract upon the occurrence of an Insolvency Event in relation to the Purchaser; and
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upon such termination, the Purchaser shall have no Claim against the Vendor under any of this contract, and the Purchaser shall not be entitled to any form of compensation from the Vendor in this regard.
17.2 Breach of Purchaser’s Obligations
If following Settlement, the Purchaser is in breach of any term of this contract then the Vendor may do either of the following:
(i) serve a written notice on the Purchaser asking the Purchaser to explain within fourteen (14) days with reasonable accuracy why the Purchaser is in breach of this contract, or
(ii) serve a written notice on the Purchaser requiring the Purchaser to remedy that breach within thirty (30) days of service of the notice or such other reasonable time (as specified in the notice) to be determined by the Vendor having regard to the nature and circumstances of the breach.
If the Purchaser does not remedy the breach within the time specified in the notice under Special Condition 17.2(a), or such other time as shall be agreed in writing by the parties, then without limiting the Vendor’s rights at law, the Vendor may:
(iii) immediately terminate this contract by service of written notice on the Purchaser; and
(iv) subject to the provisions of this Special Condition 17.2(c), upon such termination the Purchaser shall have no Claim against the Vendor except for any Claim relating to any previous or existing breach of this contract;
If this contract is terminated by the Vendor in accordance with Special Condition 17.1 or 17.2, the Purchaser must (if required by the Vendor) re-transfer the whole or any part of the Land to the Vendor which have been transferred to the Purchaser from the Vendor pursuant to this contract at a price determined in accordance with Special Condition 17.4 following notice from the Vendor (Option Notice), less any costs of the Vendor in doing so, and without limiting any other rights the Vendor has against the Purchaser in respect to the Purchaser’s breach of this contract.
17.3 Re-Transfer of Land
The following provisions apply to any transfer of the Land pursuant to Special Condition 17.2:
The price paid by the Vendor to the Purchaser will (unless otherwise agreed in writing) be the re-purchase price determined in accordance with clause 17.4;
settlement of the transfer of the Land will be effected within one calendar month from the date of the Vendor’s termination of this contract (subject to the reasonable time required to obtain a valuation of any works completed or not completed in accordance with this contract);
the re-purchase price must be paid on settlement of the transfer of the Land;
rates and taxes and all other outgoings in respect of the Land will be adjusted to the date of settlement;
all costs associated with the transfer will be borne by the Purchaser; and
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otherwise be on the terms and conditions of the standard Law Society of South Australia Contract for the Sale and Purchase of Land.
17.4 Re-purchase Price
If at the time of the Vendor’s Option Notice no improvements have been undertaken on the Land by the Purchaser, the re-purchase price of the Land payable by the Vendor to the Purchaser pursuant to Special Condition 17.3 shall be the lesser of the amounts determined pursuant to Special Conditions 17.4(a)(i) and 17.4(a)(ii):
(i) the amount determined in accordance with the following formula:
$A = [B - C] x 0.9
Where:
A is the amount calculated pursuant to this Special Condition 17.4;
B is the amount of the payment paid by the Purchaser to the Vendor for the Land as specified in this contract between the Vendor (as vendor) and the Purchaser (as purchaser);
C is the total of the costs, stamp duty and registration fees payable by the Vendor to re-purchase the Land; or
(ii) the Current Market Value of the Land (as at the date of the Option Notice) less the total of the costs, stamp duty and registration fees payable by the Vendor pursuant to Special Condition 17.3.
If at the time of the Option Notice the Purchaser has undertaken the whole or some portion of the physical construction work relating to the improvement of the Land or if the Purchaser has transferred a part of the relevant Land to another party, the re-purchase price of the relevant land payable by the Vendor to the Purchaser shall be the amount determined in accordance with the following formula, namely:
$A = [D - E] x 0.9
Where:
A is the amount to be paid to the Purchaser pursuant to this clause 17.4(b);
D is the Current Market Value of the Land (as at the date of the service of the Option Notice); and
E is the total of the costs stamp duty and registration fees payable by the Vendor to repurchase the relevant land;
For the Purposes of this Special Condition 17.4:
(i) Current Market Value of the Land means the amount determined by a Valuer that can reasonably be obtained for the relevant land in an open market in its then current condition between a willing buyer and a willing seller and in an arms length transaction after proper marketing wherein the parties had each acted knowledgeably, prudently and without compulsion, and taking into account:
(A) the extent of the construction work undertaken on the relevant land as at the date of the Option Notice issued in accordance with Special Condition 17.2 (but disregarding any builders' plant and equipment, office and site sheds and
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any materials which are on the relevant land but not then fixed); and
(B) the Completion Costs in respect of the uncompleted portion of the construction works;
(ii) Completion Costs means all of the costs and expenses required to be incurred to complete the construction works commenced by the Purchaser to the standard and specifications required by the relevant approvals, as determined by a Quantity Surveyor, in respect of which:
(A) the Quantity Surveyor is an expert and not an arbitrator;
(B) the Quantity Surveyor must seek, accept and give due consideration to written submissions from or on behalf of the Vendor or Purchaser;
(C) the Quantity Surveyor must determine the Completion Costs as at the date on which the Vendor requested the transfer;
(D) the Purchaser will pay the Quantity Surveyor’s fees and expenses and costs of determination;
(E) the Quantity Surveyor must provide the determination to the parties in writing, with reasons for the determination, within 30 days of appointment;
(F) the provisions of the Commercial Arbitration Act 2011 (SA) do not apply to the appointed Quantity Surveyor’s determination; and
(G) the determination of the Quantity Surveyor is final and binding on the parties;
(iii) Valuer means a valuer who is registered to practice in South Australia and has not less than 5 years relevant experience immediately prior to the appointment appointed by agreement between the parties and failing agreement, appointed at the request of the Vendor by the person for the time being holding or acting in the office of President of the Australian Property Institute (SA Division) Inc; and
(iv) Quantity Surveyor means a quantity surveyor who is registered to practice in South Australia and who has not less than 5 years relevant experience immediately prior to the appointment, appointed by agreement between the parties and failing agreement, appointed at the request of the Vendor by the person for the time being holding or acting in the office of President of the South Australian Chapter of the Australian Institute of Quantity Surveyors.
17.5 Intellectual Property Rights
If this contract is terminated, the Purchaser will sell to the Vendor:
all plans, models, designs and documents relating to any construction works within or affecting any of the Land including the Purchaser’s Detailed Concept Plans for the sum of one dollar ($1.00) (if demanded) immediately upon termination in order that the Vendor at its election may continue with the construction of any improvements commenced (or planned to be commenced) on the Land; and
the sale of plans, models, designs and documents under paragraph (a) shall confer on the Vendor such Intellectual Property Rights the Purchaser has in those items and where the Purchaser is not the owner of the Intellectual Property Rights the Purchaser shall indemnify the Vendor against any Claims made against the Vendor in respect of the Vendor’s use of such items.
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17.6 Survival
This Special Condition 17 will survive Settlement.
18. Caveat
The Purchaser must not lodge any caveat over the Land in respect of its interest under this contract except a caveat that expressly allows other dealings that are expressed to be subject to the Purchaser’s interest under this contract to be registered over the Land.
19. Time of the Essence
Time is of the essence with regard to all the Purchaser's obligations under this contract, including in any notice served on the Purchaser pursuant to this contract.
20. Guarantee
If the Purchaser is a body corporate (except for a company listed on the Australian Stock Exchange) the Purchaser must cause each of its directors to execute a deed of guarantee and indemnity in the form of the document forming Annexure H contemporaneously with the execution of this contract by the Purchaser.
21. GST
21.1 Interpretation
Unless the contrary intention appears the terms and phrases used in this Special Condition have the meanings given to those terms and phrases in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
21.2 GST Exclusive Consideration
Unless otherwise specified in this contract, the consideration expressed in this contract for any taxable supply made under this contract does not include GST (GST exclusive consideration).
21.3 Payment of GST
The recipient of a taxable supply under this contract must in addition to and at the same time as the GST exclusive consideration is payable under this contract, pay to the supplier of the taxable supply, an amount equal to the amount of GST imposed by GST law from time to time on the taxable supply.
21.4 Tax Invoice
The supplier of a taxable supply under this contract must deliver to the recipient of the taxable supply, a tax invoice in respect of the taxable supply, at the same time that payment for the taxable supply is required from the recipient.
21.5 Clawback
If this contract provides that the sale of the Land is not a taxable supply but for any reason whatsoever the sale of the Land (or any part of it) is at law a taxable supply, Special Conditions 21.1 to 21.4 will apply with the effect that:
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the purchase price for the Land will be increased by the amount necessary to include the GST payable (GST amount) on the taxable supply; and
the Purchaser must pay the GST amount to the Vendor within 14 days of receipt of a notice from the Vendor under Special Condition 21.6, even though the Purchaser may only receive the notice after settlement or after the GST exclusive purchase price has been paid.
This Special Condition 21.5 applies notwithstanding any contrary provision in this contract or any warranty (whether express or implied) by the Vendor that the sale of the Land is not a taxable supply.
21.6 Conclusive evidence
A notice from the Vendor to the Purchaser that the supply of the Land (or any part of it) under this contract is a taxable supply is deemed to be correct and may not be disputed by the Purchaser unless the Purchaser produces to the Vendor a private ruling which states that the supply of the property under this contract is GST-free, in a form which is binding on the Commissioner of Taxation under the Taxation Administration Act 1953 (Cth). For the sake of certainty, the Purchaser acknowledges that it may not refuse to comply with Special Condition 21.5 on the grounds that it is waiting for a private ruling to that effect.
21.7 Indemnity
The Purchaser indemnifies the Vendor against all Loss (including any GST, fines, interest or penalties imposed under GST law) arising out of or in connection with the Purchaser’s failure to comply with this Special Condition 21).
21.8 No merger
The provisions of this Special Condition 21 do not merge on settlement.
22. Amendment of Standard Conditions
22.1 Deletion
Clauses 17, 36.2 and part 8 of the General Conditions are deleted.
22.2 Variation
Clause 13(1) is deleted and replaced with the following new clause 13(1):
“13 (1) The Vendor warrants that to the best of its knowledge and belief and except as disclosed to the Purchaser in writing and/or in Item 13, that as at the Execution Date, no Statutory Notice exists which has not been fully complied with or which adversely affects the Assets.”
Clause 13 of the Standard Conditions is deleted and replaced with the following new clause 13:
“The Land shall remain at the risk of the Vendor until settlement under this contract.”
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23. General Provisions
23.1 Entire agreement
This contract contains the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it.
23.2 Amendment
No amendment or variation of this contract is valid or binding on a party unless made in writing executed by all parties.
23.3 Assignment by Purchaser
The rights and obligations of the Purchaser under this contract are personal and cannot be Disposed of or otherwise dealt with without the prior written consent of the Vendor.
The Vendor's consent may be withheld in its absolute discretion.
The Purchaser in any event remains liable for all its obligations under this contract after any Disposal of those obligations.
If Item 2 of the Schedule refers to “and/or nominee” (or any other words to that effect) and either:
(i) the person and/or body corporate named in Item 2 of the Schedule as Purchaser is the nominee of another person regarding the purchase of the Land under this contract; or
(ii) the person and/or body corporate named in Item 2 of the Schedule as Purchaser novates this contract with the consent of the Vendor; or
(iii) the person and/or body corporate named in Item 2 of the Schedule as Purchaser assigns this contract with the consent of the Vendor,
THEN in any event is not freed released or discharged from and remains liable for, and for performance of, all the obligations under this contract.
23.4 Assignment by Vendor
The Vendor may assign or transfer any of its rights or obligations under this contract to:
an assignee, transferee or successor of its title in the Land which is a State Government Body without the consent of the Purchaser; or
to any other person with the prior written consent of the Purchaser which is not to be unreasonably withheld and provided such assignee or transferee covenants in favour of the Purchaser to be bound by the provisions of this contract.
23.5 No waiver
No failure to exercise nor any delay in exercising any right, power or remedy by a party operates as a waiver.
A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
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A waiver is not valid or binding on the party granting that waiver unless made in writing.
23.6 Further assurances
Each party agrees to do all things and sign all documents necessary or desirable to give full effect to the provisions of this contract and the transactions contemplated by it.
23.7 No merger
The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this contract.
They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.
23.8 Costs and stamp duty
Each party must bear its own costs arising out of the negotiation, preparation and execution of this contract.
All stamp duty (including fines, penalties and interest) that may be payable on or in connection with this contract and any instrument executed under this contract must be borne by the Purchaser.
The Purchaser must indemnify the Vendor on demand against any liability for that stamp duty.
23.9 Governing law and jurisdiction
This contract is governed by the laws of South Australia.
Each party submits to the non-exclusive jurisdiction of the courts of South Australia.
23.10 Counterparts
This contract and any amendment may be executed in any number of counterparts.
Counterparts may be exchanged by facsimile.
All counterparts when exchanged will be taken to constitute one document.
23.11 Relationship
The relationship between the parties is that of independent contractors.
The parties are not partners, joint venturers or principal and agent.
23.12 Notices
A notice to a party must be in writing and may be served in the following manner:
(i) delivering it personally to that party; or
(ii) addressing it to that Party and either leaving it at, delivering it by courier (expenses prepaid) or mailing it by registered mail (return receipt requested) to:
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(A) the address of that party appearing in this Special Condition 23.12; or
(B) any other address in South Australia nominated in writing by that party from time to time; or
(iii) sending a facsimile copy of the notice to the facsimile copier number specified in this Special Condition 23.12 or to any other numbering nominated in writing by that party.
A notice given in accordance with this Special Condition 23.12 will be deemed to be received as follows:
(i) in the case of personal delivery or by courier, when delivered;
(ii) in the case of service by leaving the notice at an address specified in this Special Condition 23.12, when left at that address, unless the time of leaving the notice is not on a Business Day or is after 5.00pm on a Business Day, in which case it shall be deemed to be given, made or received on the next Business Day;
(iii) in the case of service by mail, on the second Business Day following the date of posting;
(iv) in the case of service by facsimile, when transmitted, as evidenced by a transmission report produced by the sender’s facsimile machine that the notice was sent to the addressee’s facsimile number, unless the time of transmission is not on a Business Day or is after 5.00pm on a Business Day, in which case it will be deemed to be given, made or received on the next Business Day.
A notice given or served pursuant to this contract by a party may be signed by a duly authorised employee, agent or delegate of the serving party. Notices may be served at the following addresses and facsimile number:-
(i) to the Vendor:
Project Director - Bowden, Renewal SA Level 9, West Riverside Centre North Terrace ADELAIDE SA 5000 Facsimile: 08 8207 1301; and
(ii) to the Purchaser:
[INSERT DETAILS]
A party may modify its address or facsimile number from time to time by a written notice served on the other party.
24. Confidentiality and Public Announcements
Neither party may use any Confidential Information of the other party except as genuinely and necessarily required for the purposes of this contract.
Neither party may disclose any Confidential Information of the other party except:
(i) with the prior written consent of the party who supplied the Confidential Information;
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(ii) to an employee or agent of that party, on a “need to know” basis where that disclosure is necessary to enable that employee/agent to perform their obligations under this contract and that employee/agent is made aware of the confidential nature of the Confidential Information and is required to treat it confidentially;
(iii) as required by the law or a court order or by regulation of the Australian Stock Exchange Limited; and
(iv) in the case of the Vendor in accordance with parliamentary or constitutional convention including (without limitation) to the Minister for Housing and Urban Development, the Treasurer and to the Crown in right of the State of South Australia in its executive capacity acting through Cabinet.
Each party must promptly notify the other if it becomes aware of any actual or threatened disclosure of any Confidential Information of that party, and must provide all reasonable assistance to that party to protect and enforce the confidentiality of Confidential Information.
The Purchaser shall not make, issue or permit to be made any public announcement concerning any matter relating or incidental to entering into this contract or its contents or the undertaking of the Bowden Project unless first approved by the Vendor in writing. For the purposes of this Special Condition a “public announcement” includes without limitation any one of the following:
(i) a media release or any other information release to the public;
(ii) a response to a media query; or
(iii) the publication of an article or other information on a website accessible to the public.
The obligations under this Special Condition 24 shall continue notwithstanding the completion of the Bowden Project or the sooner termination of this contract.
25. Disclosure
The Vendor is a statutory corporation established under the Housing and Urban Development (Administrative Arrangements) Act 1995 (SA) and may disclose information in relation to this contract to the public or to a particular person as a result of a specific request in accordance with Department of Premier and Cabinet Circular 27 (PC027) as amended from time to time, a copy of which is available at www.premcab.sa.gov.au.
Nothing in this Special Condition derogates from:
(i) the Vendor’s obligation under any other provision of this contract; or
(ii) the provisions of the Freedom of Information Act 1991 (SA).
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ANNEXURE B
DRAFT PLAN OF DIVISION
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ANNEXURE C
ALLOTMENT CONTROL PLAN
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ANNEXURE D
DEVELOPER SITE SIGNAGE GUIDELINES
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ANNEXURE E
DEVELOPER ENCUMBRANCE
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ANNEXURE F
SUBSEQUENT BUILDING ALLOTMENT ENCUMBRANCE
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ANNEXURE G
CAR PARKING AGREEMENT
[Form of agreement to be determined following selection of successful Purchaser]
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ANNEXURE H
GUARANTEE & INDEMNITY
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Guarantee and Indemnity
given by
The person(s) named in Item 1 of the Schedule
in favour of
The person(s) specified in Item 2 of the Schedule
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Date
Parties
1. The person(s) named in Item 1 of the Schedule (Guarantor); and
2. The person(s) specified in Item 2 of the Schedule (Vendor).
Recitals
The Vendor is the registered proprietor of the land described in Item 4 of the Schedule (Land).
The Vendor has at the Guarantor’s request entered into the agreement described in Item 5 of the Schedule (Contract) to sell the Land to the person specified in Item 3 of the Schedule (Purchaser).
The Guarantor guarantees the obligations of the Purchaser under the Contract by virtue of this deed.
It is agreed as follows.
1. Preliminary
1.1 Definitions
In this deed:
Authority means any statutory, public, governmental, semi-governmental, municipal or other public entity.
Business Day means a day other than a Saturday, Sunday or public holiday in South Australia.
Contract means the agreement to sell the Land described in Item 5 of the Schedule.
Contractual Obligations means all:
terms and conditions of the Contract to be observed and performed by the Purchaser whether express or implied, positive or negative, personal or running with the land; and
amounts payable by the Purchaser to the Vendor under and in connection with the Contract or any transaction or matter contemplated by the Contract whether present or future, actual or prospective, contingent or otherwise.
Dispose means assign, transfer, otherwise dispose of or grant or permit or suffer the grant of any legal or equitable interest (either in whole or in part) whether by sale, lease, declaration or creation of a trust or otherwise.
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Encumbrance means any bill of sale, mortgage, charge, lien, pledge, trust or other interest or power by way of security for the payment of any debt or other monetary obligation, or the performance of any other obligations and whether existing or agreed to be granted or created.
Insolvent means any of the following:
being unable to pay one’s debts as they fall due and payable;
becoming insolvent within the meaning of section 922 of the Corporations Act 2001 (Cth).
anything having a substantially similar effect to any of the events specified above under any law or any applicable jurisdiction.
Land means the land described in Item 4 of the Schedule.
Purchaser means the person specified in Item 3 of the Schedule.
Loss means any cost, expense, loss, damage, claim, action, proceeding or other liability (whether in contract, tort or otherwise), however arising (whether or not presently ascertained, immediate, future or contingent) and includes legal costs on a full indemnity basis.
1.2 Interpretation
In this deed, unless it is stated to the contrary;
the singular includes the plural and conversely;
a gender includes all genders;
if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them;
a reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or annexure to, this deed;
a reference to an agreement or document (including this deed) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this deed or that other agreement or document;
a reference to writing includes any method of representing or reproducing words, figures, drawings, or symbols in a visible form but excludes any communication using electronic mail;
a reference to a party to this deed or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives);
a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
a reference to conduct includes, an omission, statement or undertaking, whether or not in writing;
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a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing;
a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind;
a reference to dollars and $ is to Australian currency;
a reference to a right or obligation of any two or more persons confers that right, or imposes that obligation, as the case may be, jointly and severally;
the meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions;
references to agree, approve or consent are references to agreement, approval or consent (as the case may be) in writing; and
nothing in this deed is to be interpreted against a party solely on the ground that the party put forward this deed or any part of it.
1.3 Headings
Headings do not affect the interpretation of this deed.
1.4 Schedules and annexures
Schedules and annexures form part of this deed.
1.5 Recitals
The recitals are correct and form part of this deed.
2. Guarantee and Indemnity
2.1 Guarantee
The Guarantor unconditionally and irrevocably guarantees to the Vendor the strict performance and observance by the Purchaser of all Contractual Obligations.
2.2 Indemnity
As a separate, independent and additional covenant, the Guarantor agrees to indemnify and keep the Vendor indemnified against all Loss which the Vendor may suffer or incur by reason of or in connection with:
the Purchaser not complying with any Contractual Obligations; and
the Contract or any of the Contractual Obligations being invalid, unenforceable, void or voidable for any reason whatsoever.
3. Payment on Demand
The Guarantor must pay any money payable by it and perform any obligations to be performed by it under this deed immediately on demand.
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4. Continuing Guarantee
The Guarantor's obligations under this deed remain in full force and effect until the Contractual Obligations have been fully discharged and satisfied. They will not be abated, suspended, abrogated, varied or affected by any matter or thing whatsoever including:
the termination of the Contract for whatever cause and whether by the Vendor or the Purchaser;
the Vendor granting to the Purchaser any waiver, concession or other indulgence in respect of the performance of the Contractual Obligations;
the Vendor delaying or postponing the exercise of any right, power or remedy conferred upon the Vendor;
any variation in the respective obligations and liabilities of the Vendor and the Purchaser under the Contract whether made with or without the knowledge or consent of the Guarantor and whether or not to the Guarantor's prejudice or detriment;
any Disposal or grant of any Encumbrance in respect of the Purchaser's estate or interest in the Contract (including any part of such estate or interest);
any payment by the Purchaser or the Guarantor being void or voidable or liable to be disgorged or repaid;
either one or both of the Purchaser and any Guarantor becoming insolvent;
either one or both of the Purchaser and any Guarantor, being a natural person dying or becoming of unsound mind or his estate being liable to be dealt with in any way under the laws relating to mental health;
the release or loss of any security held by the Vendor in respect of the Contract;
the Vendor discharging or releasing any Guarantor;
the Contract not being signed or properly signed by the Vendor or the Purchaser or this deed not being signed or properly signed by the Vendor or any Guarantor;
the liability or obligations of any Guarantor under this deed being invalid, void, voidable or unenforceable for any reason whatsoever;
any other matter, event, thing or occurrence which results in prejudice or detriment to the Guarantor or which but for this clause would have abated, suspended, abrogated, varied or detrimentally affected the Guarantor's liability under this deed.
5. Negative Obligations
5.1 Purchaser’s assets
The Guarantor must not prove for or claim any dividend out of the assets of the Purchaser in the event of the Purchaser being unable to pay its creditors in full in competition with the Vendor or so as to diminish the dividends to which but for such proof or claim the Vendor would or might be entitled.
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5.2 Set-off
The Guarantor must not raise any defence, set-off or counterclaim against the Vendor available to itself or the Purchaser against the Vendor in reduction of its liability under this deed until all of the Contractual Obligations have been discharged and performed in full.
6. Primary Obligations
6.1 Principal debt
The Guarantor covenants and agrees that it shall be liable to the Vendor as principal and primary debtor for the performance of all Contractual Obligations and hereby waives and relinquishes all rights of suretyship whether legal, equitable, statutory or otherwise that are inconsistent with the provisions of this deed.
6.2 No obligation to pursue others
The Vendor shall not be bound to pursue any claims or to exercise any remedy against the Purchaser or any other person before making any claim or demand or otherwise exercising its rights under this deed.
7. Trustee Guarantor
If the Guarantor is a trustee of any trust (Trust) whether or not the Vendor is aware of the Trust:
the Guarantor enters into this deed both as trustee of the Trust and in its personal capacity;
the Guarantor is personally liable for the performance and observance of the Guarantor's obligations under this deed;
the Guarantor must take all necessary steps and proceedings to ensure that the assets of the Trust are made available for the purpose of rectifying any breach of the Guarantor's obligations under this deed;
the Guarantor must assign to the Vendor upon demand all rights of indemnity which the Guarantor may have against the assets of the Trust; and
the Guarantor warrants that the Guarantor has power and authority to enter into and execute this deed under the terms of the Trust and that the entering into of this deed by the Guarantor is in the due and proper administration of the Trust.
8. Certificate
Any document signed by or on behalf of the Vendor stating the amount of money payable by the Guarantor under this deed is deemed to be conclusive evidence of the amount payable by the Guarantor under this deed.
9. Notices
9.1 Manner of giving
Any notice given under this deed must be in writing and signed by or for the sender.
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9.2 Manner of delivery
Notices may be delivered:
by post or hand to the address(es) of the Guarantor specified in Item 1 of the Schedule; and
by facsimile to the Guarantor at the number(s) specified in Item 6 of the Schedule.
9.3 When delivered
Notices will be deemed to be duly given, if given in accordance with Special Condition 9.2:
(i) in the case of delivery in person, when delivered;
(ii) in the case of delivery by post, 2 Business Days after the date of posting (if posted to an address in the same country) or 7 Business Days after the date of posting (if posted to an address in another country); and
(iii) in the case of fax, on receipt by the sender of a transmission control report from the despatching machine showing the relevant number of pages and the correct destination fax machine number or name of recipient and indicating that the transmission has been made without error.
If the result under Special Condition 9.3(a) is that a notice would be taken to be given on a day that is not a Business Day in the place to which the notice is sent, then it will be taken to have been given on the next Business Day in that place.
10. Goods and Services Tax
10.1 GST amount
The Guarantor shall pay to the Vendor in addition to all other amounts payable by the Guarantor to the Vendor under or pursuant to this deed an amount as advised by the Vendor (GST Amount) equivalent to all GST payable on or in respect of any taxable supply by the Vendor under or pursuant to the Contract or this deed (or both).
10.2 On demand
The GST Amount shall be paid to the Vendor on demand or when the liability for GST is incurred by or in relation to the Vendor whichever occurs first.
10.3 Payment
The GST Amount shall be paid by the Guarantor:
if and to the extent that any taxable supply is not expressly quoted or stated by the Vendor to be GST inclusive or GST free; and
as an increase to the amount payable under this deed if the Vendor so elects and notifies the Guarantor whereupon the amount payable under this deed shall be increased accordingly.
10.4 Interpretation
Expressions used in this Special Condition 10 that are also used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended from time to time) shall have the same meanings as in that Act.
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11. General Provisions
11.1 Amendment
No amendment or variation of this deed is valid or binding on the Vendor unless made in writing executed by the Vendor.
11.2 Assignment by Guarantor
The obligations of the Guarantor under this deed are personal.
They cannot be Disposed of, Encumbered or otherwise dealt with and the Guarantor shall not attempt, or purport, to do so without the prior written consent of the Vendor.
11.3 Assignment by Vendor
The Vendor may assign its rights under this deed to any person at any time without the need for the Guarantor's prior consent or need to notify the Guarantor.
11.4 Binding on signatories
This deed binds each of the signatories to the fullest extent contemplated by this deed in favour of the Vendor even though it is not executed by the Vendor and even if any one or more of the persons named as Guarantor do not or never execute this deed or the execution by any one or more persons named as Guarantor is or may be invalid, void or voidable.
11.5 No waiver
No failure to exercise nor any delay in exercising any right, power or remedy by the Vendor operates as a waiver.
A single or partial exercise of any right, power or remedy by the Vendor does not preclude any other or further exercise of that or any other right, power or remedy by the Vendor.
A purported or alleged waiver is not valid or binding on the Vendor unless made in writing.
11.6 Further assurances
The Guarantor agrees to do all things and sign all documents necessary or desirable to give full effect to the provisions of this deed and the rights of the Vendor under it including a further deed in the same terms as this deed save for such modifications as the Vendor’s solicitors consider appropriate in respect of every assignment, transfer, novation or variation of the Contract or any new agreement entered into place of the Contract.
11.7 No moratorium
To the fullest extent permissible, any laws, statutory or otherwise which has the effect of prejudicing, reducing or otherwise detrimentally affecting the Vendor's rights, powers and remedies under this deed are negated and do not apply to this deed.
11.8 No merger
The rights of the Vendor and the obligations of the Guarantor will not merge in or prejudicially affect or be prejudicially affected by any security or other guarantee which is now held or to be held by the Vendor in respect of the Contract.
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The rights of the Vendor and the obligations of the Guarantor will not merge, cease, come to an end or be prejudicially affected by any judgment obtained against the Purchaser or any other person by the Vendor in respect of the Contractual Obligations.
11.9 Costs
The Guarantor indemnifies the Vendor against and must pay on demand all costs (including solicitor's costs on a full indemnity basis), duties, expenses and taxes payable by the Vendor in relation to the creation of the Vendor's rights under this deed and the negotiation, preparation, completion and stamping of this deed and also all expenses and other costs and charges which may be incurred by the Vendor in respect of obtaining legal advice concerning this deed and the enforcement or performance of any obligations of the Guarantor under this deed.
11.10 Governing law and jurisdiction
This deed is governed by the laws of South Australia.
Each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning this agreement.
11.11 Counterparts
This deed and any amendment may be executed in any number of counterparts.
Counterparts may be exchanged or delivered by facsimile.
All counterparts when exchanged or delivered will be taken to constitute one document.
11.12 Severability
If any term or condition of this deed is invalid or unenforceable, the remaining terms and conditions will not be affected and remains valid and enforceable to the fullest extent permitted by law.
11.13 Relationship
The relationship between the parties is that of independent contractors.
The parties are not partners, joint venturers or principal and agent.
11.14 Deed
Notwithstanding anything to the contrary in this document, the Guarantor executes and intends this document to operate as a deed.
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Executed as a deed.
Executed by
_________________________
Director
_________________________
Director/Secretary
Executed by
__________________________
Director
__________________________
Director/Secretary
Signed by
in the presence of:
_________________________
Witness
_________________________
Name of witness
)
)
)
_________________________
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Signed by
in the presence of:
_________________________
Witness
_________________________
Name of witness
)
)
)
_________________________
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SCHEDULE
Item 1 Guarantor
Item 2 Vendor
Urban Renewal Authority ABN 86 832 349 553 of Level 9, West Riverside Centre, North Terrace, Adelaide SA 5000
Item 3 Purchaser
Item 4 Land
Item 5 Contract
Contract for Sale and Purchase of Land dated on or about the date of this deed between the Vendor and the Purchaser in relation to the Land
Item 6 Fax number for service
Page 11 of 136
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