Carpark Patrol Agreement:Cherrybrook Village Shopping Centre

Level 14, Australia Square
264-278 George Street

SYDNEYNSW2000
DX 129 SYDNEY
ABN 37 246 549 189

Tel:†††††††† (02) 9334 8555

Fax:††††††† 1300 369 656

Ref:††††† BSO:87425

 

 


 

 

 

 

BNY Trust Company of Australia Limited

and

The Council of the Shire of Hornsby

 


Hornsby Shire Council

Attachment to Report No. WK66/08 Page 1

 

Carpark Patrol Agreement: Cherrybrook Village Shopping Centre

 

Date

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† 2008

Parties

 

 

BNY Trust Company of Australia Limited (ACN 050 294 052) of Level 2, 35 Clarence Street, Sydney New South Wales

(Owner)

 

The Council of the Shire of Hornsby of 296 Pacific Highway, Hornsby, New South Wales

(Council)

 

 

Background

 

A.†††††

The Owner owns the land described in Item 1 of the First Schedule (Land).

B.†††††

The shopping centre described in Item 2 of the First Schedule is erected on the Land ("Centre").

C.†††††

The part of the Centre (being the area edged in red on the attached plan marked ďAĒ) has been set aside as a free parking area ("Carpark") and the Owner operates and manages the Carpark as a free parking area as defined in the Local Government Act, 1993.

D.†††††

The Council has agreed at the request of the Owner to patrol and police the Carpark including issuing parking infringement notices on the terms and conditions contained in this deed.

 

 

 

 

IT IS AGREED as follows:

1.†††††††† Operation of Deed

1.1††††††† The operation of this deed shall commence on the date of this deed and shall continue until the earlier of:

†††††††††††† (a)†††††††† the date of expiration of the period specified in Item 3 of the First Schedule; or

†††††††††††† (b)†††††††† the date on which this deed is terminated in accordance with this deed.

1.2††††††† This deed may be terminated by:

†††††††††††† (a)†††††††† either party hereto by giving of six (6) months written notice to the other party, which notice may be given at any time and expire on any day;

†††††††††††† (b)†††††††† the Council by written notice to the Owner if the Owner breaches any of the Owner's obligations under this deed and such breach continues for fourteen (14) days after the Council gives written notice to the Owner to remedy such breach; or

†††††††††††† (c)†††††††† the Owner by giving one (1) months written notice to the Council if the Owner sells or otherwise transfers its interest in the Land (which notice may expire on any day).

1.3††††††† This deed does not confer upon the Council any estate or interest in the Land or the Carpark and the legal possession of the Land and operation, management and control of the Carpark shall at all times remain vested in the Owner.

1.4††††††† The Council may by written notice to the Owner require any variation of this deed to reflect any change in law.

2.†††††††† Council's Obligations

2.1††††††† The Council must:

†††††††††††† (a)†††††††† at its expense, cause the Council's parking rangers to patrol and police the Carpark as a free parking area in accordance with the provisions of the Local Government Act, 1993 and the rules set out in the Second Schedule (Rules) but the Council itself shall not be liable to the Owner in respect of any failure on the part of any member of the public to observe the Rules;

(b)†††††††† not use the Carpark for any purpose other than the purpose provided in clause 2.1(a) without the written consent of the Owner;

(c)†††††††† use all reasonable endeavours to ensure the effective patrol and policing of the Carpark including having at least one (1) traffic enforcement officer conduct at least two (2) patrols three (3) times a week except on Saturdays, Sundays and Public Holidays;

(d)†††††††† not without the written consent of the Owner, erect or cause or suffer to be erected any structure on the Land;

(e)†††††††† not assign the Council's interest under this deed;

(f)††††††††† at all times keep the Owner promptly informed of any matters which may affect the intended operation of this deed; and

(g)†††††††† make available to the Owner, on reasonable request, reports on the frequency of attendance of the Councilís traffic enforcement officer at the Carpark.

3.†††††††† Unfettered Regulatory and Enforcement Activities

3.1††††††† Notwithstanding anything to the contrary contained or implied in this deed, the resources utilised by the Council in patrolling and policing the Carpark and performing regulatory and law enforcement activities at the Carpark from time to time shall be at Councilís absolute discretion.

4.†††††††† Infringement Notices and Fines

4.1††††††† All infringement notices are to be issued at the direction of the Council's parking rangers but no employee of the Council can be compelled to issue any infringement notice.

4.2††††††† All fines received by the Council as a result of the issue of parking infringement notices in relation to the Carpark shall be retained by the Council.

5.†††††††† Annual Fee payable to Council

5.1††††††† The Owner must pay to the Council the annual fee specified in Item 4 of the First Schedule (as varied in accordance with clause 5.2) such fee to be paid annually in advance, the first such payment to be made on the date of this deed and thereafter on each anniversary of the date of this deed.

5.2††††††† The annual fee must be adjusted on each anniversary of the date of this deed by the increase in the Consumer Price Index (All Groups) for Sydney (CPI) during the prior year provided that if the CPI ceases to be published or the criteria for calculating the same is changed so that in the reasonable opinion of the Council it does not reflect the true variation of the cost of living in Sydney, then and in either of such cases the annual fee must be adjusted on each anniversary of the date of this deed in line with the increase in the cost of living in Sydney during the prior year as determined by Council (acting reasonably).

6.†††††††† GST

6.1†††††† The parties agree that all money payable or consideration to be given by a party (Recipient) to the other (Supplier) under this deed is exclusive of GST.

6.2†††††† The Recipient must without deduction or set off pay to the Supplier any GST payable in respect of any taxable supply made by the Supplier to the Recipient under this deed.

6.3†††††† Subject to clause 6.5 , and the issue of a tax invoice to the Recipient, the GST payable by the Recipient will be payable on the earlier to occur of the time at which:

(a)††††††† the other moneys payable or consideration is to be given under this deed in respect of that supply are payable or to be given; or

(b)††††††† any GST in respect of that supply is payable.

6.4†††††† Despite any other provision of this deed, where the Supplier is entitled to be reimbursed by the Recipient for any amount paid by the Supplier to a third party, the Supplier cannot recover from the Recipient that part of the goods and services tax paid to the third party by the Supplier in respect of that amount and for which the Supplier is entitled to an input tax credit.

6.5†††††† On or before the time at which the moneys payable or consideration to be given under this deed in respect of a taxable supply are payable or to be given, the Supplier will issue a tax invoice, which will enable the Recipient, if permitted by the Act, to claim a credit for GST paid by the Recipient.

6.6†††††† For the purpose of this clause 6:

(a)††††††† any terms used in it which have meanings under the Act, will have the meanings given by the Act;

(b)††††††† if the Act is repealed, GST means any goods and services tax, consumption tax, value added tax or other like tax; and

(c)††††††† Act means the A New Tax System (Goods and Services Tax) Act 1999 (as amended).

7.†††††††† Owner's Obligations

7.1††††††† The Owner must:

(a)††††††† at all times, keep the Council promptly informed of any matters which may in any way affect the operation or use of the Carpark;

(b)††††††† at its expense:

(i)†††††††† install by the date of this deed, all of the signage within the Carpark specified in the Third Schedule;

(ii)†††††††† regularly maintain and keep clean the Carpark; and

(iii)††††††† provide, maintain, repair and replace all signage, notices, barriers and line marking within the Carpark to standards as the Council may from time to time reasonably specify in writing;and

(c)††††††† pay all rates and taxes in respect of the Carpark and the Land.

8.†††††††† Releases and Indemnities

8.1††††††† To the fullest extent permitted by law, the Owner releases the Council and each of the Council's employees, agents and contractors from all claims and liabilities of every kind in respect of or arising or as a consequence of or in connection with resulting from any accident, damage, loss (including consequential loss), death or injury occurring in or about the Carpark or the Land except to the extent that any such accident, damage, loss, death or injury is caused by any negligent act by the Council or any of the Council's employees, agents or servants.

8.2††††††† The Owner indemnifies the Council and each of the Council's employees, agents and contractors in respect of all claims and liabilities of every kind in respect of or arising or as a consequence of or in connection with or resulting from any accident, damage, loss (including consequential loss), death or injury occurring in or about the Carpark or the Land except to the extent that any such accident, damage, loss, death or injury is caused by any negligent act by the Council or any of the Council's employees, agents or contractors.

9.†††††††† Legal Costs and Stamp Duty

9.1††††††† The Owner must pay:

†††††††††††† (a)†††††††† the Councilís reasonable legal costs (assessed on an indemnity basis) and out of pocket expenses in respect of the preparation, negotiation and execution of this deed; and

†††††††††††† (b)†††††††† all stamp duty assessed/payable on this deed.

10.††††† Service of Notices

10.1††††† Any notice, request, consent or other communications to be given by a party under this deed (communication), must in writing addressed to a party at the partyís address specified in this deed or to such other address for a party as may be notified in writing by that party to the other parties

10.2††††† Each communication must be delivered by hand or pre-paid post, or sent by facsimile.

10.3††††† A communication shall be deemed to be received Ė

(a)††††††† if hand delivered, on the next following business day;

(b)††††††† if posted, on the second business day after posting; and

(c)††††††† if sent by facsimile, on the next following business day unless the receiving party has requested re-transmission before the end of that business day.

11.††††† General

11.1††††† This deed shall be construed according to the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales

11.2††††† If any provisions of this deed shall at any time be found to be or become void, voidable or unenforceable, the remaining provisions of this deed shall nevertheless continue to be of full force and effect.

11.3††††† No addition to or variation of this deed shall be of any force or effect unless in writing and signed by both parties.

11.4††††† No waiver or indulgence by either party of any right under this deed shall be binding upon the parties unless in writing and in any event no waiver of one breach of any term or condition of this deed shall operate as a continuing waiver unless so expressed nor operate as waiver of another breach of the same or any other term or condition of this deed.

11.5††††† The parties shall promptly do and perform such further acts and execute and deliver all further instruments required by law or reasonably requested by any other party, to establish, maintain and protect the respective rights and remedies of the other parties and to carry out and effect the intent and purpose of this deed.

11.6††††† This deed may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

11.7††††† Where used in this deed words importing the singular shall include the plural and vice versa and any gender shall include any other gender.

11.8††††† Where any party to this deed consists of more than one person the obligations of that party to the other party or parties shall be joint and several and service on any one of those persons shall be deemed to be service on that party.

11.9††††† The parties hereby enter into this deed for themselves their respective representatives successors and permitted assigns.

12.††††† Trustee Limitation of Liability

12.1††††† For the purposes of this deed, the following words have the following meanings:

(a)††††††† "Trust" means the Meridian Investment Trust No. 1, Meridian Investment Trust No. 2, Meridian Investment Trust No. 3, Meridian Investment Trust No. 4, Meridian Investment Trust No 5 and Meridian Investment Trust No. 6 or any of them (as the case requires).

(b)††††††† "Trustee" means the Owner being the trustee appointed under or in respect of the Trust.

(c)††††††† "Trust Document" means all the transaction documents that relate to the Trust.

(d)††††††† "Trust Manager" means Mirvac REIT Management Limited (ABN 70 002 060 228).

12.2††††† The Trustee enters into this deed only in its capacity as trustee of the Trust and in no other capacity.

12.3††††† Except to the extent expressly provided by clause 12.5:

(a)††††††† a liability or obligation arising under or in connection with this deed or the Trust is limited to and can be enforced against the Trustee only to the extent to which it can be satisfied out of assets of the Trust out of which the Trustee is actually indemnified for the liability;

(b)††††††† the Trustee will have no personal liability to any other party to this deed and the other parties waive their rights and release the Trustee from any personal liability;

(c)††††††† this limitation of the Trustee's liability applies despite any other provision of this deed and extends to all liabilities and obligations of, undertaken or incurred by, or devolving on, the Trustee arising from, or in any way connected with, any conduct, omission, representation, warranty, agreement transaction or other matter or thing under or related to this deed;and

(d)††††††† the Trustee is not obliged to do anything or refrain from doing anything under or in connection with this deed (including incur a liability) unless the Trustee's liability is limited in the same manner as set out in this clause or otherwise in a manner satisfactory to the Trustee (in its absolute discretion).

12.4††††† The parties other than the Trustee may not sue the Trustee in any capacity other than trustee of the Trust, including seeking the appointment of a receiver, or a liquidator, an administrator or any similar person to the Trustee to prove in any liquidation, administration or arrangements of or affecting the Trustee.

12.5††††† The provisions of this clause limiting the Trustee's liability will not apply to any liability or obligation of the Trustee to the extent that it is not satisfied because under this deed or any other Trust Documentor by operation of law there is a reduction in the extent of the Trustee's indemnification out of the assets of the Trust, as a result of the Trustee's fraud, gross negligence or wilful misconduct. In no circumstances, however, will the Trustee be personally liable for any indirect incidental, consequential or special damages (including, without limitation, lost profits) of any form incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought (except to the extent that there is a determination by a relevant court of fraud by the Trustee).

12.6††††† The parties agree that:

(a)††††††† the Trust Manager, is responsible under this deed and the other Trust Documents in relation to the Trust for performing a variety of obligations relating to the Trust;

(b)††††††† no act or omission of the Trustee will constitute fraud, gross negligence or wilful misconduct of the Trustee to the extent to which the act or omission was caused or contributed to by any failure of the Trust Manager or any other person to fulfil its obligations relating to the Trust or by any other act or omission of the Trust Manager or any other person or any of their respective agents or contractors; and

(c)††††††† no attorney, agent or other person appointed in accordance with this deed has authority to act on behalf of the Trustee in a way which exposes the Trustee to any personal liability and no act or omission of such a person will be considered fraud, gross negligence of wilful misconduct of the Trustee.

12.7††††† In no event will the Trustee be personally liable for any failure or delay in the performance of its obligations under this deed or any Trust Document because of circumstances beyond its control including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, labour dispute, any statute, ordinance, code or other law which restricts or prohibits the Trustee from performing its obligations under this deed or any Trust Document, the inability to obtain or the failure of equipment or the interruption of communications or computer facilities to the extent, in each case, that these occurrences are beyond the control of the Trustee and any other causes beyond the Trustee's control.


THE FIRST SCHEDULE

 

ITEM 1†††††††††††† Land:††††††††††††††† the land in Certificate of Title Folio Identifier 1/816193

ITEM 2†††††††††††† Centre:†††††††††††† Cherrybrook Village Shopping Centre

ITEM 3†††††††††††† Period: ††††††††††† Twelve (12) months from and including the date of this deed.

ITEM 4†††††††††††† Annual Fee:††††† Forty four thousand six hundred and forty nine dollars ($44,649)

†††††††††††††††††††††††††††††††††††††††††††††† inclusive of GST

 

THE SECOND SCHEDULE

RULES

 

1.†††††††† The Carpark must be available for free car parking by the public.

 

2.†††††††† Between the hours of 7.00am to 9.00pm (inclusive) from Monday to Sunday inclusive, car parking must be restricted to a maximum duration of three (3) hours or such other maximum duration as the parties may mutually agree in writing.

 

3.†††††††† No charge will be made for car parking in the Carpark.

 

4.†††††††† Car parking must be restricted at all times to those parts of the Carpark denoted as carparking areas.

 

5.†††††††† Entrances, exits and driveways through the Carpark must at all times be kept clear of obstructions.

 

6.†††††††† The Council shall be entitled (but not obliged) to enforce such penalties as the Council may from time to time determine for breaches of these Rules pursuant to the Councilís statutory powers in connection with the patrol and policing of public car parking areas.

 

THE THIRD SCHEDULE

 

Signage in the positions shown on the plan attached to this deed marked "B".

 

 

IN WITNESS WHEREOF this deed has been executed the day and year first hereinbefore mentioned.

Executed as a deed

Signed by BNY Trust Company of Australia Limited (ACN 050 294 052) by its undersigned Attorneys (who have not received notice of the revocation of the Power of Attorney dated

Under the authority at which this instrument has been signed this†††††††††††††††††††††††††††††††††† day of†† †††††††††††††††††††††††

)

)

)

 

 

 

 

 

 

Attorney

Title:

 

 

Witness

 

 

 

Name: (please print)

 

 

 

 

Address

 

 

 

Signed by The Council of the Shire of Hornsby by its duly constituted Attorney ROBERT JOHN BALL pursuant to Power of Attorney Book No. 4218 Registered No. 500 the presence of:

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)

 

 

 

 

Witness

 

R J Ball

 

 

 

Name (please print)