CITY OF RYDE ACTING GENERAL MANAGER’S REPORT NO. 13/07 ...

CITY OF RYDE

ACTING GENERAL MANAGER’S REPORT NO. 13/07

Council Meeting – 24 July 2007

CONTENTS Item Property/Subject Page

1 INVESTMENTS...................................................................................................... 1

2 COUNCILLOR WORKSHOPS.............................................................................. 8

3 PUBLIC-PRIVATE PARTNERSHIP (PPP) – Bevillesta Pty Ltd and Council of the City of Ryde – Lot 11, 1 Devlin Street, Ryde – Exercise of Call Option........................................................................................................... 10

CONFIDENTIAL ITEMS

4 ADVICE ON COURT ACTIONS.......................................................................... 79

PRECIS OF CORRESPONDENCE 1 From: NSW Local Government Grants Commission

Dated: 4 July 2007 RE: Grant Entitlements for 2007/2008

2 From: Independent Commission Against Corruption Dated: 6 July 2007

RE: Ryde Civic Centre – Sale of Stratum Lot/Subdivision, Devlin Street, Ryde – Proposed Use of Roadways and PPP with Bevillesta Pty Ltd.

NOTICES OF MOTION 1 Notice of Motion in the name of Councillors Butterworth and Wilde OAM re:

Traffic Study in Gerrish Street, Gladesville.

Acting General Manager’s Report No. 13/07 20 July 2007

This is page no. 1 of the Acting General Manager’s Report No.13/07, dated 20 July 2007, submitted to Council on 24 July 2007. General Manager Chairperson

ACTING GENERAL MANAGER’S REPORT NO.13/07

20 July 2007 The Mayor and Councillors ITEM 1 INVESTMENTS

The Chief Financial Officer reports 15 July 2007 that the investments listed in ‘ATTACHMENT A’ are held by the Council. RECOMMENDATION: That the investments listed in ‘Attachment A’ of the General Manager’s Report No. 13/07 and the Certificate of the Chief Financial Officer dated 15 July 2007 be received and noted.


ITEM 1 (continued) ATTACHMENT A




ITEM 2 COUNCILLOR WORKSHOPS

In accordance with Council's resolution of 26 June 2001, I wish to report on the Councillor Workshops held since the previous Council meeting. Date: 10 July 2006, 6.00pm Subject: Workshop – Gladesville DCP/LEP Present: The Mayor, Councillor I J Petch (Chairperson) and Councillors

M P Butterworth, N B Campbell, T P McCosker, M Melhem, C M Netterfield, G O’Donnell, T W Perram, T D A Ryan, V J Tagg and E M Wilde OAM

Leave of Absence: Councillor S Yedelian. Staff Present: General Manager, Group Manager – Community Life, Group

Manager - Public Works, Group Manager – Environment & Planning and Group Manager – Corporate Services.

Summary The development controls contained in the preliminary draft Development control plan and proposed local environmental plan for the Gladesville Town Centre and Victoria Road Corridor were presented by staff and the consultants working on the project. The presentation provided an overview of the development potential of the key development sites ( built form and economic analysis) and heights/ floor space ratios proposed for the Centre and along Victoria Road Date: 17 July 2006, 6.30pm Subject: LGSA Motions Workshop Present: The Mayor, Councillor I J Petch (Chairperson) and Councillors

M P Butterworth, T P McCosker, M Melhem, C M Netterfield, G O’Donnell, T W Perram, T D A Ryan, V J Tagg and E M Wilde OAM

Leave of Absence: Councillor S Yedelian. Staff Present: Acting General Manager, Group Manager – Community Life,

Group Manager - Public Works and Group Manager – Corporate Services.



ITEM 2 (continued) Summary The workshop provided an overview and discussion on the remaining Notices of Motion. Councillors agreed to support three of the motions some with amendments, deleted one and requested one to be resubmitted. The motions from this meeting will be submitted to the next Council Meeting. RECOMMENDATION: That the information be received and noted.



ITEM 3 PUBLIC-PRIVATE PARTNERSHIP (PPP) – Bevillesta Pty Ltd and Council of the City of Ryde – Lot 11, 1 Devlin Street, Ryde – Exercise of Call Option

File No. COR2006/1700 Report Summary To report on the Notice of Exercise of Call Option received from Bevillesta Pty Ltd and outline the next steps required to finalise the sale of Lot 11, 1 Devlin Street, Ryde as well as seeking approval to enter into a Tripartite deed between Council, the RTA and Bevillesta Pty Ltd. Background This matter was last reported to the Committee of the Whole meeting No. 07/07 on 1 May 2007, where it was resolved: (a) That the report of the Manager Buildings and Property dated 23 April 2007

providing the current status of this project, be received and noted. (b) That the documents associated with this project comprising Put and Call Option

dated 1 November 2006 with Contract for sale of land attached, Deed of cancellation of Put and Call Option Agreement dated 1 November 2006, Put and Call Option dated 16 December 2005, Deed of partial novation and variation of agreement to lease with Lease and Car Parking Licence attached, Deed of variation of agreement to lease dated 1 November 2006, Agreement to Lease dated 16 December 2005, Deed of variation of Construction Access Licence dated 1 November 2006, Construction Access Licence dated 16 December 2005, S88B Instrument for subdivision associated with stratum lot sale, S88B Instrument for subdivision associated with road closure/lease of land, Subdivision plan for stratum lot sale, Subdivision plan for road closure, Draft subdivision plan for lease of land and Voluntary Planning Agreement (including Implementation Deed) be approved and endorsed.

(c) That the Deed of partial novation and variation of agreement to lease (including

attached car parking licence) be executed under Common Seal of Council and be signed by the Mayor and General Manager.

(d) That the subdivision plan for stratum lot sale and subdivision plan for road

closure be approved and the Common Seal of Council be affixed to the plans and S88B easement documentation.

(e) That the General Manager be authorised to make minor alterations (that are not of

a material nature) to any of the unexecuted transaction documents.



ITEM 3 (continued) (f) That the General Manager be delegated the authority to appoint members to the

Project Control Group responsible for planning, design and delivery of the CoR Centre in terms of the VPA Implementation Deed.

(g) That a copy of this report and attachments be forwarded to the Department of

Local Government and the Independent Commission Against Corruption. (h) That a further report to Council be provided after exercise of the Put or Call Option

by either Bevillesta or Council. A copy of that report is ATTACHMENT 1. Report 1. Notice of Exercise of Call Option This notice was received by Council on 17 July 2007 together with accompanying letter and 2 copies of the contract for sale of land executed by the purchaser. Copies of the Notice of Exercise of Call Option and letter from Beville Group (BG) dated 17 July 2007 are ATTACHMENT 2. The contract is currently being examined by Council’s Legal Counsel and external solicitors Maddocks to ensure it reflects the agreements previously reached by the parties. Upon receiving their sign off to the documents it would be the intention to execute the document under Common Seal of Council with the signatures of the Mayor and General Manager.

2. Subdivision Plan for Stratum Lots 10, 11 and 12, DP 1110978 The subdivision plan prepared to create the lots required for the sale of the stratum lot to BG is currently with Land and Property Information (LPI) for registration. Advice received is that the plan will be registered and the lots created by 24 July 2007. This will enable settlement for the sale to occur shortly thereafter. The contract requires completion to occur on or before the later of 30 days after the date of exercise of the option or 14 days after notification of the registration of the subdivision plan and issue of title. It is therefore anticipated that settlement could occur on or before 16 August 2007 provided there are no undue delays with registration of the subdivision plan. 3. Agreement to Lease The contract for sale is also linked to the conditions precedent in the Agreement to Lease. These conditions precedent are: • The lease is conditional upon completion of the stratum lot purchase through the

Put and Call Option Agreement. This is now satisfied.



ITEM 3 (continued) • The lease is subject to approval of the Director of Planning under S 149 of the

Roads Act, 1993, and the consent of Council, as the roads authority, under S 138 of the Roads Act. The S 149 and S 138 conditions have now been satisfied.

• The lease is subject to road closures. This must have occurred before the Call Option Expiry Date of 30 July 2007. Advice received from the LPI is that the road closure plan will be registered by 24 July 2007. It will then be necessary for the Department of Lands to gazette the road closure to formally close the road.

4. Tripartite Deed As part of the agreed process under the Roads Act, 1993 and also one of the conditions of development consent, Council has consented and the Roads and Traffic Authority (RTA) has granted concurrence to DA 672/2006 under S 138 (2) of the Act. Normally the RTA would require the developer to enter into a Works Authorisation Deed (WAD). However, in view of the role that Council also plays in this project, as the Road Authority and owner of Devlin Street and Blaxland Road, it has been agreed that all three parties would enter into a Tripartite Deed covering the aspects associated with the finance, design and construction of the works involving Devlin Street and Blaxland Road. BG will own, maintain and operate the infrastructure and will also be responsible for the finance, design and construction of the works. The deed provides, among other things, for quality control of the design and construction including appointment of a Private Verifier by Council, specific security to be provided by BG in the form of a bank guarantee to ensure due and proper performance of its obligations, all risks to be assumed by BG, a process for reviewing and approving the plans, procedures for programming and constructing the works, liabilities assumed and indemnities to be given by BG, traffic management and control, as well as responsibility for BG to pay all costs associated with the works including RTA and Council costs. A copy of the agreed deed is ATTACHMENT 3. 5. Report to ICAC and Department of Local Government (DLG) Council has continued to adopt a transparent approach with all matters relating to the PPP project and has voluntarily reported to the Independent Commission Against Corruption (ICAC) on the status. A copy of the report to Council dated 23 April 2007 was provided to both the ICAC and DLG to provide the current status with the project as well as details of the contractual arrangements entered into between BG and Council. Both bodies have responded that they have received the report and noted its contents. Neither have any issues with the conduct of the project. 6. Documents Executed The Deed of partial novation and variation of agreement to lease (including attached car parking licence) have been executed by both parties. In addition the Subdivision Plan and Road Closure Plan were also executed under the Common Seal of Council.



ITEM 3 (continued) Management Plan Linkages The overall Ryde Town Centre project is listed on page 22 under the Major Initiatives for the Management Plan 2007-2010. Relationship to Key Outcome Areas People This project meets the following key outcomes for People (set out on pages 32-33 of the Management Plan 2007-2010): • A vibrant city that is healthy, physically attractive, economically strong and

engages its community through cultural and social activities. • A city that plans for people by identifying their diverse needs and involving them in

decision making to improve their quality of life. • A harmonious community through a culturally enriched and respectful society. The sale and lease arrangements will bring significant improvements to the amenity of the Ryde Town Centre Precincts in making them an attractive place to visit. Community access and safety within the precincts will be significantly enhanced. Assets This project meets the following key outcomes for Assets (set out on page 34-35 of the Management Plan 2007-2010): • Well designed streets and paths where motorists, cyclists and pedestrians feel

safe. • Well designed places and spaces that minimise personal harm and where people

interact with each other, so that crime is reduced. • A high standard of visual appearance as there is no litter or graffiti, and we care for

our infrastructure and public areas. The sale and lease arrangements will have a significant long-term benefit to the City of Ryde community by providing an integrated traffic solution for the Ryde Town

entre Precincts covering vehicles, bicycles and pedestrians. C Environment This project meets the following key outcomes for Environment (set out on pages 36-38 of the Management Plan 2007-2010): • Clean air through protection of natural resources and better integrated transport

systems. • Attractive streets, public places and buildings through better planning and design

which is responsive to community expectations and our local environment. • Sustainable practices in buildings, waste management, transport, energy systems

and water use through community commitment.



ITEM 3 (continued) Through the sale and lease arrangements, benefits to improve the environment will be realised. Governance This project meets the following key outcomes for Governance (set out on page 39-41 of the Management Plan 2007-2010): • Improved communication with the community and increased awareness and

understanding of Council’s decisions by the community. • Compliance with all legislative requirements and statutory obligations. Care has been taken and legal advice obtained to ensure Council has met all legislative and governance requirements. In addition a significant cash payment will be received by Council for the sale of the stratum lot and this will be invested in the Investment Property Portfolio. Council resolved to authorise the General Manager to proceed with the action plan to develop the Investment Property Portfolio and enter into options to purchase properties under that plan. Consultation – Internal and External Council business/service units consulted included: • Access Facilities & Services Unit, • Catchments Unit, • Buildings and Property Unit, and • Urban Planning. External consultation has taken place with: • Maddocks – Solicitors advising Council on the transaction documents; • Pricewaterhouse Coopers Legal – Probity Auditors; • Parsons Brinckerhoff – Traffic Consultants; • Norton Survey Partners – Surveyors; • Denny Linker & Co – Surveyors; • Sydney Water, Energy Australia and other utilities; • Roads & Traffic Authority; • Department of Lands; • Department of Planning; • Department of Local Government; • Independent Commission Against Corruption; and • the general public.



ITEM 3 (continued) Public notification has taken place as part of the formal application to close in part Blaxland Road, Ryde including negotiations with the various utility providers. The Development Application lodged by BG for the redevelopment of the Top Ryde Shopping Centre has required extensive public notification and exhibition including the Independent Hearing Assessment Panel review on 24 April 2007. Policy Implications The matter is in accordance with the requirements for leasing of land and works required to roads under the Roads Act, 1993. The matter also recognises the requirements of the Local Government Amendment (Public Private Partnerships) Act, 2004 concerning public-private partnerships. Critical Dates There are no critical dates associated with this report. Financial Impact There is no financial impact from these proposals. Other Options Not applicable Conclusion It is recommended that Council note the contents of this report which outlines the next steps associated with the finalisation of the sale of Lot 11, 1 Devlin Street, Ryde and give approval to enter into the Tripartite Deed. RECOMMENDATION: (a) That the report on the Notice of Exercise of Call Option received from Bevillesta

Pty Ltd and outlining the next steps required to finalise the sale of Lot 11, 1 Devlin Street, Ryde and seeking approval to enter into a Tripartite Deed, be received and noted.

(b) That the Contract for sale of land (in duplicate) have the Common Seal of

Council affixed and be signed by the Mayor and General Manager. (c) That the Tripartite Deed between Council, the Roads and Traffic Authority and

Bevillesta Pty Ltd have the Common Seal of Council affixed and be signed by the Mayor and General Manager

(d) That the General Manager be authorised to make minor alterations (that are not of

a material nature) to the contract for sale and/or the Tripartite Deed.



ITEM 3 (continued) PREVIOUS REPORT ATTACHMENT 1 PUBLIC-PRIVATE PARTNERSHIP (PPP) - Bevillesta Pty Ltd and Council of the City of Ryde - Redevelopment of Top Ryde Shopping Centre - Documentation File No. COR2005/47 The Manager Buildings and Property reports 23 April 2007: Report Summary To provide the current status of this project including all prior approvals resolved by Council, together with a revised Deed of partial novation and variation of agreement to lease (including Car parking licence) for approval by Council. The report also asks that Council approves and endorses all of the documentation that is being entered into between Bevillesta Pty Ltd (BG) and the City of Ryde. Background Since December 2004, when the prospect of obtaining space for Council in the proposed redeveloped Top Ryde Shopping Centre was first mooted, this matter has been reported to Council at the following meetings: • Committee of the Whole Meeting No. 12/04 – 7 December 2004

Delegated authority to the General Manager to commence negotiations with BG with the intention of developing a draft Memorandum of Understanding/Commercial Agreement for the City of Ryde to obtain space in the proposed redevelopment of the Top Ryde Shopping Centre for Council’s offices, library and Civic plaza.

• Committee of the Whole Meeting No. 03/05 – 1 March 2005 Provided a report on the results of the Top Ryde Traffic and Pedestrian Study,

commissioned by the RTA. Resolved that Council defer the matter and request the BG to undertake community consultation on its proposals for the Devlin Street precinct and provide a report back to Council accordingly within 3 months

• Committee of the Whole Meeting No. 06/05 – 3 May 2005 Advised Council of the current status in respect of the negotiations with the BG in providing Council with space in their redevelopment and also provided details of an alternate proposal that the BG provided to Council and resolved that authority be provided to the General Manager to negotiate a formal agreement as outlined in the General Manger’s letter dated 27 April 2005.



ITEM 3 (continued) PREVIOUS REPORT ATTACHMENT 1 • Committee of the Whole Meeting No. 10/05 – 5 July 2005

Provided the current position reached with the negotiations conducted with the BG for the proposed stratum subdivision and sale to them of a stratum lot to be subdivided from Council’s existing Civic Centre freehold land. Resolved to formalise the negotiations by granting BG an option to purchase the stratum lot subject to meeting certain conditions. Also resolved:

o That a Civic Precinct Committee of all Councillors to be chaired by the Mayor be established.

o That all funds received from the proposed sale of the proposed stratum lot (lot 11) be placed in a Civic Precinct Reserve Account.

o That Council delegated authority to the General Manager to enter into discussions with the BG to develop an agreement to negotiate for the use of the road reserve for traffic management into the Top Ryde Shopping Centre Complex, and report back to Council accordingly.

o That Council authorised the General Manager to lodge the Development Application for the subdivision of Council’s land at 1 Devlin Street, Ryde which included the creation of stratum lots.

• Committee of the Whole Meeting No. 16/05 – 4 October 2005

Resolved that the Put and Call Option (with Contract for sale of land attached), Agreement to Lease (with Lease attached) and Construction Access Licence be executed under the Common Seal of Council and also to seek the concurrence of the RTA and approval of the Department of Planning in relation to the Agreement to Lease and Construction Access Licence.

• Traffic Committee Meeting No. 17/11 – 17 November 2005 Received and noted the Ryde Town Centre LEP Traffic Study.

• Council Meeting No. 20/05 – 13 December 2005 Resolved to sign under Common Seal of Council, the Agreement to Lease, Put and Call Option, Construction Access Licence and S88B Instrument, as well as noting the certification from the General Manager regarding compliance with the Guidelines on the Procedures and Processes for Public-Private Partnerships and that the execution of the transaction documents may proceed in compliance with those procedures and processes.

• Council Meeting No. 01/06 – 14 February 2006 Appointed Council members to the Public-Private Partnership Project Control Group.

• Civic Precinct Committee Meeting 01/06 - 31 May 2006 Provided a status report of the project.



ITEM 3 (continued) PREVIOUS REPORT ATTACHMENT 1 • Traffic Committee Meeting No. 04/06 – 6 July 2006

Resolved that the road closures of Blaxland Road and Devlin Street be agreed subject to a satisfactory solution being agreed with the STA concerning the future operation of buses in the area effected.

• Committee of the Whole Meeting No. 11/06 – 1 August 2006 Resolved to reclassify the land known as 2A Devlin Street as Operational Land.

• Committee of the Whole Meeting No. 13/06 – 5 September 2006 Resolved that the land known as 2A Devlin Street, Ryde and comprised in Lot 3 DP 618154 be dedicated as road.

• Council Meeting No. 17/06 – 26 September 2006 Provided an update on the PPP arrangements and outlined the works proposed on Council owned or managed land. Sought Council’s formal approval to make application to close in parts Blaxland Road and Devlin Street Ryde in relation to the integrated traffic solution. Resolved to approve amendments to the transaction documents previously entered into between BG and Council.

• Council Meeting No. 22/06 – 12 December 2006 Clarified the extent of road closures required as part of the PPP arrangements. Council resolved to classify the land resulting from the road closures as Operational Land and also authorised the General Manager to take the necessary action and execute appropriate documents to acknowledge the change of status and confirm that all covenants and obligations in the Agreement to Lease and/or Lease and Construction Access Licence with BG were to continue and remain binding.

• Council Meeting No. 03/07 – 13 March 2007 Council formally approved the closure of Blaxland Road Ryde in part, and confirmed that approval could be sought from the Department of Lands to complete the closure process.

• Traffic Committee Meeting No. 02/07 – 29 March 2007 Considered Council’s S 138 application regarding the Integrated Traffic Solution for Ryde Town Centre, as well as draft Conditions of Consent to be forwarded to the independent assessor for consideration and inclusion in their DA Assessment Report.

• Committee of the Whole Meeting No. 05/07 – 3 April 2007 Provided an update on the current status of the project. Council resolved that the Novation Deed (Deed of partial novation and variation of agreement to lease with Lease attached) be executed under the Common Seal of Council, and that the amended subdivision plans and Integrated Traffic Solution be approved.



ITEM 3 (continued) PREVIOUS REPORT ATTACHMENT 1 Since the project was first reported to Council in December 2004 negotiations have continued with BG as planning and design of the infrastructure has developed. This has led to an evolving set of documentation as matters have crystallised and has resulted in the current set of documents that accompany this report. All documentation is in a form that will enable the associated transactions to be finalised. It would be anticipated that the conditions precedent will be satisfied in the next 3 months and that will then be the catalyst to enable exercise of the Put and Call Option which will bring the remaining documents into effect. Report 1. Documentation The following documents have been CIRCULATED UNDER SEPARATE COVER for review, approval and endorsement.

1) Put and Call Option dated 1 November 2006 with Contract for sale of land attached Documents the agreement to enter into a Put and Call Option between Bevillesta Pty Ltd and Council to sell the stratum lot in front of the Civic Centre for the sum of $20miliion, which was executed under Common seal of Council on 1 November 2006 as per resolution from Council dated 26 September 2006. This document varied the original Put and Call Option by removing Lot 3 DP 618154 which had been dedicated as road and which was subsequently included in the Agreement to Lease. A non-refundable option fee of $2million has already been paid by BG. It is anticipated that subject to conditions precedent in the Agreement to Lease being satisfied (see below), that the option will be exercised in the next 3 months which will enable the contract for sale to be executed.

2) Deed of cancellation of Put and Call Option Agreement dated 1 November 2006 Cancelled the original Put and Call Option dated 16 December 2005 to enable a fresh document to be entered into that excluded Lot 3 DP 618154 which has now been dedicated as road and incorporated in the Agreement to Lease. Document was executed under Common Seal of Council on 1 November 2006 as per resolution from Council dated 26 September 2006.



ITEM 3 (continued) PREVIOUS REPORT ATTACHMENT 1

3) Put and Call Option dated 16 December 2005 Original agreement (that also included the Contract for sale of land) entered into between BG and Council which was executed under Common Seal of Council on 16 December 2005 as per resolution from Council dated 13 December 2005.

4) Deed of partial novation and variation of agreement to lease (Novation Deed) with Lease and Car Parking Licence attached It was reported in the General Manager’s report no. 05/07 on 3 April 2007, that amendments to the transaction documents were required to cater for the creation of a new lot, covering a small portion of land to the north of the Civic Centre in which it is intended that the northern pedestrian overbridge will set down on the western side of Devlin Street. The Novation Deed provides for Council acting in both its capacities as Roads Authority and Landowner of freehold. The Novation Deed and a new Lease were approved by Council resolution on 3 April 2007, but have not yet been executed. A further variation to the documents is now necessary, in particular to reflect the now agreed position regarding any future redevelopment of the Civic Centre site and to enable integration of the northern pedestrian bridge into any redevelopment of that site. In addition a new car parking licence has been incorporated in the documentation to reflect a change in location of the 40 spaces to be allocated to Council. These spaces will now be located in freehold land owned by Bevillesta, much closer to the CoR Centre, in lieu of the original agreement to utilise the stratum space leased to BG under the Roads Act, 1993. The conditions precedent in the Agreement to Lease are: • The lease is conditional upon completion of the stratum lot purchase through

the Put and Call Option (Option Agreement). If the Option Agreement is terminated or otherwise ends the conditions precedent for the Agreement to Lease cannot be satisfied and the agreement will terminate.

• The lease is subject to approval of the Director of Planning under S 149 of the Roads Act, 1993, and the consent of Council, as the roads authority, under S 138 of the Roads Act. The S 149 condition has been satisfied, but the S 138 condition is related to the Development Application submitted by BG for the Top Ryde Shopping Centre, and will be covered at a later date.




• The lease is subject to road closures. These must have occurred before the Call Option Expiry Date (subject to permitted extensions – see below). The road closure application to the Department of Lands is ready for submission subject to an agreement from Sydney Water and Energy Australia that they have no objection to the closures subject to granting of suitable easements. This has now become the critical element to enable progression of the entire transaction with Bevillesta.

The Call Option Expiry Date is 30 July 2007 and it is expected that the road closure should be formally approved by the Department of Lands by that date. Both Council and BG have the ability to request that the Call Option Expiry Date be extended by 3 months in terms of clause 2.3(6) of the Agreement to Lease, should it appear that the road closure will not be achieved by that date. BG has agreed to waive the road closure condition under clause 2.3(2)(b) of the Agreement to Lease as it relates to closure of portions of Devlin Street in the required locations of the footings for Bridge No.1 and Bridge No.2. This closure is no longer required as Council has granted an easement for support in lieu. A copy of the agreement to waive this condition is ATTACHED.

5) Deed of variation of agreement to lease dated 1 November 2006 This document varied the original Agreement to Lease to include Lot 3 DP 618154 which has now been dedicated as road. Document was executed under Common Seal of Council on 1 November 2006 as per resolution from Council dated 26 September 2006.

6) Agreement to Lease dated 16 December 2005 The original Agreement to Lease (with Lease attached), with Council acting in its capacity as Road Authority, and which was executed under Common Seal of Council on 16 December 2005 as per resolution from Council dated 13 December 2005.

7) Deed of variation of Construction Access Licence dated 1 November 2006 Varied the original Construction Access Licence to enlarge the area to be used for construction activities. Document was executed under Common Seal of Council on 1 November 2006 as per resolution from Council dated 26 September 2006.

8) Construction Access Licence dated 16 December 2005 This is the original Construction Access Licence, with Council acting in its capacity as Road Authority, and which was executed under Common Seal of Council on 16 December 2005 as per resolution from Council dated 13 December 2005.




9) S88B Instrument for subdivision associated with stratum lot sale Details the easements to be entered into, as depicted on the subdivision plan for the stratum lot sale (Civic Centre site). Now incorporates current requirements from both Sydney Water and Energy Australia protecting assets they have running underground in the land.

10) S88B Instrument for subdivision associated with road closure/lease of land Details the easements to be entered into, as depicted on the subdivision plan for the road closure and lease of land (Blaxland Road Reserve). Now incorporates current requirements from both Sydney Water and Energy Australia protecting assets they have running underground in the land. The easements are awaiting formal approval from Sydney Water and Energy Australia to enable the road closure to be formally completed.

11) Subdivision plan for stratum lot sale As mentioned in the General Manager’s Report No. 05/07 on 3 April 2007, minor amendments have been made to the subdivision plan prepared to create the lots required for the sale of the stratum lot to BG. This plan now reflects the further requirements of both Sydney Water and Energy Australia concerning easements required by both utilities. An approval under S 96 of the Environmental Planning and Assessment Act, 1979 has now been received from Council approving the amended plan.

12) Subdivision plan for road closure This plan has been prepared to enable creation of a new lot for the area of road to be closed to the north of the Civic Centre. It incorporates the further requirements of both Sydney Water and Energy Australia concerning easements required by both utilities. This plan will form part of the submission to Department of Lands for the formal road closure. An application for Development Consent for the subdivision plan has now been lodged with Council.

13) Draft subdivision plan for lease of land This plan is currently in draft form to create lots required for the lease of the land to BG. Further survey work is being undertaken to finalise the plan. In the main the final plan will not be dissimilar to the draft, merely dimensions and measurements need to be surveyed and recorded. The final plan will be attached to the Lease when executed.




14) Voluntary Planning Agreement (VPA) - including Implementation Deed These documents represent the offer made to Council by BG under Subdivision 2 of Division 6 of Part 4 of the Environmental Planning and Assessment Act, 1979. They provide for contributions to Council in the form of: • A new City of Ryde (CoR) Centre which will accommodate the City Library,

Customer Service Centre, Information Systems Unit and Environment and Planning Group;

• Public domain works in Devlin Street, Pope Street, Tucker Street and Blaxland Road;

• Use of the Plaza area in the redeveloped Top Ryde Shopping Centre free of charge for up to 20 community events per year;

• A contribution of $250,000 for public art in Ryde Park; and • A contribution of $130,000 for relocation of the Cenotaph to a new location in

Ryde Park. Total contributions will be in excess of $10.3 million, compared to approximately $9.7 million should BG have decided to make contributions under Council’s S 94 plan and paid associated construction fees. The VPA calls for establishment of a Project Control Group to guide the planning and design of the works. Council has been asked to appoint a representative to the PCG should the VPA be implemented.

1. Top Ryde Shopping Centre Redevelopment A separate report will be tabled at this meeting outlining the progress with the Development Application for the redevelopment of the Top Ryde Shopping Centre, including the offer to enter into a Voluntary Planning Agreement with BG.

2. Probity and Governance From inception of this project, probity and governance aspects have been regularly reviewed. It is seen as essential that Council’s roles as land owner (including acting as a Road Authority as well as freehold owner) and consent authority remain separate at all times. A conscious decision was made to establish separate teams to act in those roles and a probity plan was developed by Pricewaterhouse Coopers Legal to guide the teams throughout the project. In addition the project was reported to the Independent Commission Against Corruption (ICAC) who responded very positively to Council’s commitment to probity and offered some suggestions which were subsequently incorporated in the probity plan.



ITEM 3 (continued) PREVIOUS REPORT ATTACHMENT 1 The project has also been confirmed to be a Public-Private Partnership by the Department of Local Government (DLG). It has been deemed as low risk and does not require reporting to the department unless the risk profile changes. However, while it was not required, it was considered desirable to update the department with the current status in January 2007. Regular Project Control Group meetings have been held since February 2006 attended by representatives from both Council and BG as well as an independent non-representative member. It is the intention to furnish a copy of this report to both the ICAC and DLG to provide the current status with the project as well as details of the contractual arrangements entered into between BG and Council. Summary It is recommended that Council note the contents of this report and approve and endorse the complete suite of documentation entered into with BG. Further, it is recommended that Council approve the deed of partial novation and agreement to lease (including car parking licence) and delegate to the General Manager the authority to make any necessary minor amendments, which are not of a material nature, to the unexecuted documents prior to execution. Management Plan Linkages The overall Ryde Town Centre project is listed on page 19 under the Major Initiatives for the Management Plan 2006-2009. Relationship to Key Outcome Areas People This project meets the following key initiatives for People (set out on pages 34-37 of the Management Plan 2006-2009): • To provide a diverse program of community events • To develop a Public Art Strategy for the City of Ryde • To develop the Parks on track 2025 Project and implement priority projects The sale and lease arrangements will bring significant improvements to the amenity of the Ryde Town Centre Precincts in making them an attractive place to visit. Community access and safety within the precincts will be significantly enhanced. Assets This project meets the following key initiatives for Assets (set out on pages 40-43 of the Management Plan 2006 -2009): • To increase traffic management installations • New footpath program • To identify underutilised lands.



ITEM 3 (continued) PREVIOUS REPORT ATTACHMENT 1 The sale and lease arrangements will have a significant long-term benefit to the City of Ryde community by providing an integrated traffic solution for the Ryde Town Centre Precincts covering vehicles, bicycles and pedestrians. Environment This project meets the following key initiatives for Environment (set out on pages 47-52 of the Management Plan 2006-2009): • To complete an integrated transport strategy targeting public transport, community

transport, personal transport, a taxi strategy, active transport, a road management strategy, travel demand, a car parking strategy and integration of land use with the strategy

Through the sale and lease arrangements, benefits to improve the environment will be realised. Governance This project meets the following key initiatives for Governance (set out on pages 55-57 of the Management Plan 2006-2009): • To develop and implement a 20 Year Long Term Financial Strategy • To establish an Independent Review Panel for Development Applications Care has been taken and legal advice obtained to ensure Council has met all legislative and governance requirements. In addition a significant cash payment will be received by Council for the sale of the stratum lot and this will be invested in the Investment Property Portfolio. Council resolved to authorise the General Manager to proceed with the action plan to develop the Investment Property Portfolio at the Council meeting held on 27 March 2007. Consultation – Internal and External Council business/service units consulted included: • Access Facilities & Services Unit, • Catchments Unit, • Buildings and Property Unit, and • Urban Planning.



ITEM 3 (continued) PREVIOUS REPORT ATTACHMENT 1 External consultation has taken place with: • Maddocks – Solicitors advising Council on the transaction documents; • Pricewaterhouse Coopers Legal – Probity Auditors; • Parsons Brinckerhoff – Traffic Consultants; • Norton Survey Partners – Surveyors; • Denny Linker & Co – Surveyors; • Sydney Water, Energy Australia and other utilities; • Roads & Traffic Authority; • Department of Lands; • Department of Planning; • Department of Local Government; • Independent Commission Against Corruption; and • the general public. Public notification has taken place as part of the formal application to close in part Blaxland Road, Ryde including negotiations with the various utility providers. The Development Application lodged by BG for the redevelopment of the Top Ryde Shopping Centre has required extensive public notification and exhibition including the recent Independent Hearing Assessment Panel review on 24 April 2007. Policy Implications The matter is in accordance with the requirements for leasing of land and works required to roads under the Roads Act, 1993. The matter also recognises the requirements of the Local Government Amendment (Public Private Partnerships) Act, 2004 concerning public-private partnerships. Other Options Not applicable Critical Dates There are no critical dates associated with this report, other than proceeding to promptly satisfy the conditions precedent in the Agreement to Lease to allow the exercise of either the Put or Call Option.. Financial Impact There is no financial impact from these proposals. RECOMMENDATION: (a) That the report of the Manager Buildings and Property dated 23 April 2007

providing the current status of this project, be received and noted.



ITEM 3 (continued) PREVIOUS REPORT ATTACHMENT 1 (b) That the documents associated with this project comprising Put and Call Option

dated 1 November 2006 with Contract for sale of land attached, Deed of cancellation of Put and Call Option Agreement dated 1 November 2006, Put and Call Option dated 16 December 2005, Deed of partial novation and variation of agreement to lease with Lease and Car Parking Licence attached, Deed of variation of agreement to lease dated 1 November 2006, Agreement to Lease dated 16 December 2005, Deed of variation of Construction Access Licence dated 1 November 2006, Construction Access Licence dated 16 December 2005, S88B Instrument for subdivision associated with stratum lot sale, S88B Instrument for subdivision associated with road closure/lease of land, Subdivision plan for stratum lot sale, Subdivision plan for road closure, Draft subdivision plan for lease of land and Voluntary Planning Agreement (including Implementation Deed) be approved and endorsed.

(c) That the Deed of partial novation and variation of agreement to lease (including

attached car parking licence) be executed under Common Seal of Council and be signed by the Mayor and General Manager.

(d) That the subdivision plan for stratum lot sale and subdivision plan for road closure

be approved and the Common Seal of Council be affixed to the plans and S88B easement documentation.

(e) That the General Manager be authorised to make minor alterations (that are not of

a material nature) to any of the unexecuted transaction documents. (f) That the General Manager be delegated the authority to appoint members to the

Project Control Group responsible for planning, design and delivery of the CoR Centre in terms of the VPA Implementation Deed.

(g) That a copy of this report and attachments be forwarded to the Department of

Local Government and the Independent Commission Against Corruption. (h) That a further report to Council be provided after exercise of the Put or Call Option

by either Bevillesta or Council. Mike Betts Kim Woodbury Manager – Manager – Buildings & Property Group Manager – Public Works Joe Strati Michael Whittaker General Counsel General Manager


ITEM 3 (continued) ATTACHMENT 2





Tripartite Deed – Consent and Concurrence under Roads Act 1993 Parties RTA Roads and Traffic Authority of New South Wales

ABN 64 480 155 255 Constituted by the Transport Administration Act 1988 (NSW) of 260 Elizabeth Street, Surry Hills NSW 2010

Council Council of the City of Ryde

ABN 81 621 292 610 of 1 Devlin Street, Ryde, NSW, 2112

Developer Bevillesta Pty Ltd ABN 82 008 428 162 of Suite 302, 35 Lime Street, King Street Wharf, Sydney NSW,

2000 Background 1. The Council is the roads authority and the owner of Devlin Street and Blaxland

Roads under the Act. 2. The Council as owner of Devlin Street and Blaxland Road has agreed to lease

portion of Devlin Street and Blaxland Road comprising the Site to the Developer under the Agreement.

3. The Developer proposes undertaking the Works on the Site and pursuant to the

Agreement and Lease will own and operate those Works and has agreed to finance, design and construct the Works on the terms of this Deed.

4. The consent of the Council as roads authority, with the concurrence of RTA, is

required to the Works under Section 138 of the Act. 5. The Council has consented to, and the RTA concurs with, the Developer carrying

out the Works on the Site. A condition of the DA consent and the RTA’s concurrence is that the parties enter into this Deed.



ITEM 3 (continued) ATTACHMENT 3 Deed 1. Definitions and interpretation 1.1 Definitions

In this document: (1) Act means the Roads Act 1993 (NSW); (2) Agreement means an agreement to lease dated 16 December 2005

between the Council and the Developer as varied from time to time, pursuant to which the Lease will be entered into;

(3) Amended Design Document has the meaning given to that expression in

clause 6.3;

(4) Approval means any consent, approval, authorisation, licence, registration, order, permission or concurrence required by law, including by a Legislative Requirement and any RTA condition or approval including those under this Deed, required for the commencement, execution or completion of the Works, and includes the DA Consent and the Section 138 Approval;

(5) As-Built Drawings means the Design Documents which are the final as-

executed drawings of the Works;

(6) Authority means a Commonwealth, State or local government department, a Minister, body, instrumentality, trust or public authority in the exercise of a governmental regulatory function;

(7) Business Days means a day other than a Saturday, Sunday or public

holiday in NSW and specifically excluding 27, 28, 29, 30 and 31 December;

(8) Completion means the date when the Developer provides the certificate of occupancy under clause 0 and, where applicable, applies to each stage of the Works when the certificate of occupation has been provided for that stage;

(9) Construction Program means a program in logic linked critical path format

showing the order of progress of the Works to be prepared by the Developer and provided to the Council and the RTA under clause (4);




(10) Contingency Traffic Management Plan means a plan for the management of traffic flows in the local area if there is a major problem or an emergency occurring to the tunnel works within Devlin Street;

(11) DA Consent means the development approval together with all conditions

attached to that approval for the Works under DA 672/2006, a copy of which is attached as Attachment B;

(12) Defects Liability Period means the period of 12 months from Completion of

the Works;

(13) Design Document means the detailed design plans required to be prepared for the Works in accordance with the DA Consent;

(14) Design Obligations means all tasks necessary to design and specify the

Works, including preparation of the Design Documents and, if the Design Standards include any preliminary design or specification, developing that preliminary design or specification;

(15) Design Standards means the design standards set out in the letter from

Hyder Consulting Pty Ltd to Bovis Lend Lease Pty Ltd dated 28 July 2006, a copy of which is attached as Attachment A;

(16) Developer's Project Manager means the person appointed by the

Developer under clause 0;

(17) Environmental Management Plan means a detailed plan setting out measures to manage and control the environmental impact of construction of the Works and compliance with this Deed;

(18) Inspection and Testing Plan means a detailed plan setting out all testing

and conformance data necessary to demonstrate conformance of the Works with the Design Standards and Design Documents;

(19) Integrated Traffic Solution means the integrated traffic solution for stages 1

and 2 a copy of which is attached as Attachment E;

(20) Lease means the lease to be entered into between the Council and the Developer pursuant to the Agreement;




(21) Legislative Requirements include: (a) an act, ordinance, regulation, by-law, order, award and proclamation of

the Commonwealth and the State of New South Wales; (b) Approval of an Authority (including any condition or requirement under

an Approval); and (c) any requirement to pay fees and charges in connection with paragraphs

(a) and (b);

(22) OH&S Plan means a detailed plan setting out the procedures and practices put in place to manage all occupational, health and safety and industrial issues that arise during construction of the Works and to ensure compliance with this Deed;

(23) Precinct 1 has the same meaning as in Schedule 19 to the Ryde Planning

Scheme Ordinance;

(24) Private Verifier means the independent verifier to be engaged by the Council in respect of the Works for the purposes of providing certifications to the RTA under this Deed, being such person approved of by the RTA, acting reasonably;

(25) Product Quality Summary means a summary of product quality records

which: (a) indicates the Works, or components of, which have achieved full

conformance with the requirements of this Deed; and (b) demonstrates how that full conformance was achieved;

(26) Program means the program for the staged design and approval of the Works, a draft of which is attached as Attachment D;

(27) Quality Plan means a detailed plan setting out the quality control measures

to be implemented to ensure construction of the Works satisfies the requirements of this Deed;

(28) REF means a review of environmental factors required to assist the

determining authority in discharging its obligations under Part 5 of the Environmental Planning and Assessment Act 1979 (NSW);

(29) Road means the road identified in Item 2 of the Schedule;

(30) RTA Costs mean costs and expenses reasonably and properly incurred by

the RTA in engaging external consultants or advice in connection with this Deed, as set out in clause (2);



ITEM 3 (continued) ATTACHMENT 3 (31) Section 138 Approval means the approval granted by the Council, which

was concurred to by the RTA, under section 138 of the Act, copies of the approval and concurrence letters are attached as Attachment C;

(32) Security means the security to be provided by the Developer to the Council

as referred to in clause 4;

(33) Site means those portions of Devlin Street and Blaxland Road to be leased to the Developer under the Agreement and on which the Works will be undertaken;

(34) Traffic Control Plan means a detailed plan in accordance with the RTA's

Traffic Control at Works Sites Manual;

(35) Traffic Management Plan means a detailed plan indicating how the Works and traffic will be managed during construction of the Works so as to minimise traffic disruption and achieve public safety and compliance with this Deed; and

(36) Works mean the works to be undertaken by the Developer as described in

the Lease and in accordance with the DA Consent in so far as those works will be constructed on the Site.

1.2 Interpretation

In this Deed: (1) clause headings are for convenience only and will be ignored in the

interpretation of the Deed; (2) references to a party include the successors and permitted assigns of that

party;

(3) words importing the singular include the plural and words importing the plural include the singular;

(4) words importing a person include a corporation, firm or body corporate; (5) nothing contained in the Deed will be deemed or construed as creating the

relationship of partnership or agency;



ITEM 3 (continued) ATTACHMENT 3 (6) references to a month mean a calendar month; (7) references to any document include any permitted amendment, supplement

to or replacement or novation of the document; (8) references to any legislation or to any section or provision of any legislation

includes any:

(a) statutory modification or re-enactment of or any statutory provision substituted for that legislation, section or provision; and

(b) ordinances, by-laws, regulations and other statutory provision

substituted for that legislation, section or provision;

(9) no waiver of any breach of the Deed or of any of its terms will be effective unless the waiver is in writing and signed by the party against whom the waiver is claimed, and no waiver of any breach will operate as a waiver of any other breach or subsequent breach;

(10) other grammatical forms of defined words or expressions have

corresponding meanings;

(11) 'including' and similar expressions are not words of limitation;

(12) documents which are hyperlinked to the Deed do not form part of the Deed; and

(13) hyperlinks are included for ease of reference only and may become lost or be

inaccurate.




2. Environmental Approvals

(1) The Council and the RTA acknowledge that the Council as applicant has prepared and provided as part of its application for approval under Section 138 of the Roads Act a Review of Environmental Factors for the Works and that the Council in its capacity as roads authority has assessed the Works under Part 5 of the EP&A Act as part of the Section 138 Approval.

(2) The determination under the Section 138 Approval that the Works may

proceed for the purposes of the EP&A Act does not constitute any other Approval that may be required to be obtained from the Council or the RTA or any other person or body under this Deed or at Law, and any condition on any such determination does not limit any other power or discretion of the Council or the RTA under this Deed or at Law.

3. Authorisation under Act

(1) The Council authorises, and the RTA concurs with such authorisation, under Section 138 of the Act the Developer and its authorised employees and contractors to carry out the Works within, over or across the Road and road reserves applicable to the Road in accordance with the Act subject to the terms of this Deed.

(2) The Developer acknowledges that a condition of the DA Consent and of the

RTA’s concurrence to the Section 138 Approval was that the parties enter into this Deed.

(3) The parties acknowledge that:

(a) the Section 138 Approval has been given to Stage 1 and Stage 2 of the

Integrated Traffic Solution; and (b) the obligations of the Developer under this Deed apply only to Stage 1

of the Integrated Traffic Solution; and

(c) the Council has approval to carry out Stage 2 of the Integrated Traffic Solution.



ITEM 3 (continued) ATTACHMENT 3 4. Security 4.1 Purpose

The Developer must under the terms of the Lease provide to the Council security for the sum of $5,000,000 (in the form of an unconditional bank guarantee), to be held by the Council as security for the purpose of ensuring due and proper performance of the Developer’s obligations under the Lease and subsequently this Deed.

4.2 RTA access to the Security By entering into this Deed, the parties agree that the RTA will have access to the security held by Council to reimburse those monies claimed in exercising their rights under clauses 12.3 or 14. Council may firstly deduct any costs it has incurred in exercising its rights under the Lease or clauses 12.3 or 14.

4.3 Security for Defects Liability Once the certificate of occupancy has been issued for the Works, clause 4.2 will remain in effect during the Defect Liability Period during which time the security provided by the Developer will be $500,000 as prescribed under clause 22 of the Lease.

5. Nature of Deed 5.1 General

The Developer must finance, design and construct, and maintain in accordance with Attachment F and with the Lease, the Works and perform its other obligations under this Deed at its own cost without contribution from the RTA or the Council.

5.2 All risks The Developer accepts all risks associated with the obligations in clause 5.1, and the risk of changes to the Works necessary to comply with the Deed.

6. Design 6.1 Signage Plan

The parties acknowledge that they have reviewed the terms of the draft Signage Plan as attached as Attachment G although no formal approval process has been initiated by the Developer for any aspect of the draft Signage Plan.



ITEM 3 (continued) ATTACHMENT 3 6.2 Design Obligations

(1) The Developer acknowledges and agrees that it is a term of the RTA’s concurrence that the Developer complies with all conditions of the DA Consent.

(2) The Developer must:

(a) perform the Design Obligations and produce the Design Documents to

accord with the Approvals and the applicable Design Standards; (b) ensure that the Design Obligations are performed with due skill, care

and diligence and by personnel who are suitably qualified and experienced; and

(c) ensure that the Design Documents are fit for the construction of the

Works.

6.3 RTA Review Process

(1) Under the Section 138 Approval, the RTA acknowledges that it will have a concurrence, rather than an approval role, to the Works, except that the RTA will have a role in approving Design Plans for the portion of the Works comprising traffic signalling.

(2) To the extent that the Developer requires the consent of the RTA to any

Design Documents under the DA Consent, the Developer must:

(a) provide to the RTA for review at least four copies of Design Documents produced by the Developer, in a form acceptable to the RTA, acting reasonably, before they are issued to tenderers or proposed contracting parties and in any event, not less than 20 Business Days before the work contained in those documents is proposed to be commenced;

(b) where a document submitted by the Developer to the RTA is amended

after being considered by the RTA (Amended Design Document), submit four copies of the Amended Design Document to the RTA for the RTA's consideration; and




(c) submit an Amended Design Document to the RTA for consideration no later than 10 Business Days, or such other time as the parties may agree in writing, prior to the date that the Developer proposes that the Works or any part of the Works to which the Amended Design Document relates will commence.

(3) The RTA must notify the Developer as expeditiously as possible and in any

event within the time frame indicated in the Program attached as Attachment D for each stage of the Works of receipt of Design Documents under clause (1) whether the RTA considers that the Design Documents comply with the Deed. If the RTA considers that the Design Documents do not comply with the Deed, the RTA must so advise the Developer and give reasons.

(4) The RTA must notify the Developer within 5 Business Days of receipt of any

Amended Design Document whether the RTA considers that the Amended Design Document complies with the Deed. If the RTA considers that the Amended Design Document does not comply with the Deed, the RTA must so advise the Developer and give reasons.

(5) If the RTA does not notify the Developer as required and within the time

frames prescribed in clause 6.3(3) or 6.3(4), then it is deemed that notification has been given that the Design Document or the Amended Design Document (as applicable) complies with the Deed.

6.4 Staged Design

The RTA and the Council agree that: (1) the preparation of the Design Documents and the undertaking of the Works

may be a staged process; (2) the proposed staging of the design is as indicated in the Program attached as

Attachment D;

(3) clauses 6.2 and 6.3 apply to each stage of the design; and

(4) once each stage is approved then the Developer may, subject to complying with all provisions of this Deed, commence construction of that stage.



ITEM 3 (continued) ATTACHMENT 3 6.5 RTA not liable for checking

The RTA is not responsible or liable for checking or not checking Design Documents for errors, omissions or compliance with the Deed even if the Design Documents are acceptable to the RTA.

6.6 Obligations unaffected The Developer acknowledges that the obligations in clause 0 and the Design Obligations will remain unaffected despite: (1) any receipt, review or comment on a Design Document (including an

Amended Design Document) by the RTA; (2) any information given by the RTA to the Developer (excluding traffic

programming data, phasing or the electronics associated with the traffic signalling); or

(3) any change to Works necessary to comply with the Deed.

7. Commencement of the Works 7.1 Preparation of Plans

(1) The Developer must submit to the RTA, the Council and the Council’s Local Traffic Committee a Contingency Traffic Control Plan, Traffic Control Plan and Traffic Management Plan together with certifications from the Private Verifier that each of the plans comply with this Deed and are suitable for their intended purpose for approval prior to the commencement of the relevant stage of the Works.

(2) To enable the Developer to comply with clauses 7.1(1) and 7.1(3), the

Council must engage the Private Verifier to provide the relevant certifications under this Deed. The Private Verifier must be totally independent from the Developer and its design team.

(3) The Developer must submit to the Council and the RTA an OH&S Plan,

Quality Plan, Environmental Management Plan, and Inspection and Testing Plan together with certifications from the Private Verifier for approval prior to the commencement of the relevant stage of the Works.




7.2 Approval of Plans

(1) The RTA and the Council must notify the Developer within 20 Business Days of receipt of the relevant plan submitted under clause 7.1 whether that plan is acceptable to the RTA and the Council, acting reasonably. If the plan is not acceptable, the RTA or the Council must advise what amendments the RTA or the Council reasonably require to that plan.

(2) The RTA and the Council must notify the Developer within 10 Business Days

of receipt of any plan amended under clause 7.2(1) whether that amended plan is acceptable to the RTA and the Council, acting reasonably.

(3) If the RTA or the Council does not notify the Developer as required and within

the time frames prescribed in clauses 7.2(1) or 7.2(2), then it is deemed that the relevant plan is acceptable to the RTA and the Council.

7.3 Preconditions to commencement

The Developer must not commence construction of the Works or any stage of the Works until it has: (1) obtained all Approvals necessary to start construction of the relevant stage of

the Works and the issue of an authorisation letter, including a road occupancy approval, from the RTA, in respect of which the RTA must not unreasonably withhold or delay;

(2) subject to clause 6.3(5), obtained the relevant notices from the RTA under

clause 6.3 that the RTA considers that the Design Documents and Amended Design Documents (as the case may be) comply with the Deed;

(3) obtained written confirmation from the RTA that it has complied with any

other conditions required by the RTA, including a condition that the Developer has provided to the RTA an OH&S Plan, Quality Plan, Environmental Management Plan, Inspection and Testing Plan, Traffic Control Plan and Traffic Management Plan as required under clause 7.1;

(4) provide evidence that the Security has been provided to the Council and the

required insurances have been effected in accordance with the Lease and clause 13 of this Deed;



ITEM 3 (continued) ATTACHMENT 3 (5) provided to the RTA and Council a Construction Program, for the RTA's and

Council’s prior written approval, which approval must not be unreasonably withheld or delayed; and

(6) given to the RTA's authorised representative and the Council’s authorised representative at least 10 Business Days written notice of the Developer's intention to start construction.

7.4 Appointment of Contractor

The Developer must ensure that: (1) traffic signal works are only constructed by a contractor that, at the time of

engagement, is prequalified for those works under the RTA's Prequalification Scheme for Construction Industry Contractors current at that time, unless otherwise agreed in writing by the RTA;

(2) to the extent requested by the RTA, other work is constructed by a contractor

that, at the time of engagement, is prequalified at a level and class appropriate for that work under such prequalification scheme;

(3) such contractors are suitably experienced in constructing similar works;

(4) the Developer and such contractors comply with the NSW Government Code

of Practice for the Construction Industry and associated Implementation Guidelines;

(5) the names of proposed contractors and subcontractors are submitted to the

RTA for prior written approval;

(6) in the case of work constructed by a non-prequalified contractor, the work is not commenced until the RTA has approved the contractor under clause 7.4(5);

(7) all requisite insurances have been effected by the proposed contractor; and

(8) the proposed contractor is engaged by the Developer under terms and

conditions that ensure the contractor will satisfy the Developer's obligations to the RTA under the Deed.



ITEM 3 (continued) ATTACHMENT 3 7.5 Principal contractor

(1) For the purposes of Chapter 8 of the Occupational Health and Safety Regulation 2001 (NSW) (OH&S Regulation) the parties acknowledge that the Council as roads authority is the owner of the Road pursuant to the Act.

(2) The Developer , as and when it engages its main contractor to carry out the

Works, must seek Council’s approval for Council to appoint the Developer’s main contractor as the principal contractor under Chapter 8 of the OH&S Regulation for executing the Works.

(3) Once approval is given pursuant to clause 7.5(2), the Council authorises the

Developer’s main contractor to exercise such authority of the Council as is necessary to enable the Developer’s main contractor to discharge the obligations and responsibilities imposed on a principal contractor by Chapter 8 of the OH&S Regulations.

(4) The Developer must ensure that its main contractor acknowledges its

obligations and responsibilities under this clause and must also ensure that its main contractor complies with these obligations and responsibilities including, without limitation, the obligation imposed by clause 210(7) of the OH&S Regulation.

(5) If the Developer’s main contractor fails to comply with any of its obligations

and responsibilities referred to in 7.5(4), the RTA or Council may have those obligations and responsibilities carried out by the RTA or Council or by others and the cost incurred by the RTA or Council in having those obligations and responsibilities carried out will be a debt due from the Developer to the RTA or Council.

(6) The Developer indemnifies the RTA and Council from and against any

damage, expense, loss, liability or claim by or against the RTA or Council arising out of or in connection with a failure by the Developer’s main contractor to comply with its obligations and responsibilities referred to in 7.5(5).

(7) The Developer must, when requested by the RTA or Council, provide the

RTA or Council with a copy of the site specific occupational health and safety management plan, subcontractors’ safe work method statements and other registers, records and documents that the Developer’s main contractor is required to prepare and maintain in connection with its obligations and responsibilities as if it were the principal contractor under Chapter 8 of the OH&S Regulation.



ITEM 3 (continued) ATTACHMENT 3 (8) If at any time during the construction of the Works, the Developer’s main

contractor ceases to be the main contractor, for any reason, the Developer must discharge the obligations and responsibilities imposed on a principal contractor by Chapter 8 of the OH&S Regulation as if it had been appointed as principal contractor under Chapter 8 of the OH&S Regulation for the carrying out of the Works. The preceding provisions of this clause 0 will apply to the Developer as if the words “Developer’s main contractor” are replaced with the “Developer”.

8. Construction 8.1 Carrying out the Works

The Developer must, in undertaking the Works, ensure that: (1) the Design Standards are complied with at all times; (2) the Works are carried out in accordance with the Design Documents which

the RTA has notified the Developer comply with the Deed pursuant to clause 0;

(3) the Works are carried out in compliance with:

(a) all Legislative Requirements affecting the Works, including

environmental, workers' compensation and occupational health and safety legislation;

(b) all requirements of other relevant Authorities;

(c) the conditions of all Approvals for the Works; and (d) the Quality Plan, OH&S Plan, Environmental Management Plan,

Inspection and Testing Plan, Traffic Control Plan and Traffic Management Plan; and

(e) Stage 1 of the Integrated Traffic Solution;




(4) any direction (including a direction to immediately stop work) and additional requirement of the RTA given from time to time (as permitted under this Deed), relating to either:

(a) traffic safety and convenience, or (b) quality of work, are complied with;

(5) water, debris or silt is prevented from collecting in or adjacent to the Works as a result of any activity associated with the Works;

(6) it does not disturb traffic flow at the site of the Works, except in accordance

with the Traffic Management Plan or with the prior approval of the RTA's authorised representative;

(7) the RTA and Council is kept informed of progress and of any event that may

affect traffic movements or other activities within or adjacent to the Works; (8) all safety devices, traffic control, barricades, signs and warnings required by

the RTA or Council or which are necessary or desirable for the protection of people or property are provided;

(9) people authorised by the RTA or Council are allowed to inspect the Works

and access all information and records relating to the Works, including traffic control arrangements and test and survey results, provided that any persons accessing the site do so in the presence of a representative of the main contractor and comply with all the work site requirements of the main contractor;

(10) noise, vibration and dust is minimised having regard to the nature of the

Works; (11) no explosives are used in relation to any part of the Works without the prior

written approval of the RTA and Council; (12) the relevant stage of the Works is carried out in accordance with the

Construction Program approved by the RTA and Council prior to commencement of construction of the relevant stage of the Works under clause 7.3(5);



ITEM 3 (continued) ATTACHMENT 3 (13) at all times it acts in a lawful manner in the performance of the Works; (14) the safety and welfare of all people, including members of the public and road

users, who may be affected by the Works or the Developer's undertaking of the Works are maintained;

(15) it co-operates and liaises with the RTA and Council and their contractors,

employees and agents working in the vicinity of the Works; (16) it carefully coordinates and interfaces the Works with any works being carried

out by the RTA, Council or another Authority and their contractors, employees and agents;

(17) it carries out the Works so as to avoid interference with or disruption to or

delay of the work of the RTA, Council or another Authority and their contractors, employees and agents;

(18) it monitors the progress of work being performed by the RTA, Council,

another Authority and their contractors, employees and agents and notifies the RTA and Council of any interface or sequence activities which may affect the commencement, progress or completion of any aspect of the Works;

(19) a report is promptly sent to the RTA's authorised representative and the

Council’s authorised representative of any injury to a person suffered while carrying out the Works or while being on Site and of any claims made pursuant to workers' compensation insurance while on Site and assist the RTA and Council to promptly investigate and monitor the incident with a view to potential future claims being made against the RTA or the Council;

(20) all subcontractors and workers engaged by the Developer on the Works are

fully paid money properly due and payable to them in connection with the Works under relevant awards, contracts and enterprise agreements; and

(21) the RTA and Council are provided with any additional information and

material relevant to the performance of the Developer's obligations under this clause 8.1, if requested in writing by the RTA's authorised representative or the Council’s authorised representative, including information relating to traffic control, records, test, survey results for the Works and any other relevant information held or received by the Developer from time to time.




8.2 Lanes Open

(1) Subject to clauses 8.2(2) and 8.2(3), the Developer acknowledges that at all times during construction, 3 lanes each way on Devlin Street must be kept open in accordance with the construction management plan and the DA Consent and full access to Precinct 1 is to be maintained.

(2) The Developer may apply to the RTA requesting short term lane closures

along Devlin Street to construct the Works provided that there is no alternative work method reasonably available that does not require the lane closure.

(3) If the Developer requests the consent of the RTA to any lane closure under

clause 8.2(2) the Developer acknowledges that:

(a) it must do so by way of a submission of a road occupancy licence request to the RTA’s Transport Management Centre (TMC);

(b) the request must be made at least 10 days before the proposed

commencement of the road occupancy licence to give the TMC a reasonable opportunity to review the request and make its determination; and

(c) the TMC may, acting reasonably, reject any request for a road

occupancy licence, including if, for example, the licence is requested during peak periods or during special events.

8.3 Testing The Developer must carry out all necessary tests on the relevant stage of the Works as required by the Deed and comply with the Inspection and Testing Plan. The Developer must give the RTA and the Council at least 5 Business Days prior written notice of the date, time and location of any testing to be undertaken to allow an RTA authorised representative and the Council’s authorised representative to attend. All testing required pursuant to this Deed will be carried out at the Developer's cost.

8.4 Defects rectification The Developer must within a reasonable time rectify defects or other non conforming work in respect of the on-grade works and traffic signalling works which become apparent during the construction of the Works or before the end of the Defects Liability Period in accordance with the requirements of this Deed.



ITEM 3 (continued) ATTACHMENT 3 9. Modifications

The Developer must not make any material modification to the Works without the prior written agreement of the RTA's authorised representative and the Council’s authorised representative, which must not be unreasonably withheld or delayed.

10. Completion 10.1 Developer to Notify

The Developer agrees to give the RTA and the Council written notice not less than 20 Business Days before it anticipates that Completion of the on-grade and traffic signalling works will be effected.

10.2 RTA to Inspect and Give Notice (1) The RTA must:

(a) promptly, and in any event no later than 5 Business Days after receiving the Developer’s written notice under clause 10.1 or a notice under the clause 10.2(1)(c) (as the case may be) inspect the on-grade and traffic signalling works; and

(b) if satisfied that Completion has been achieved in respect of either or

both of the on-grade or traffic signalling works, issue a notice to the Developer: i. stating the date upon which the RTA determines Completion was

achieved; ii. containing a list of any minor defects and minor omissions; and iii. stating the time frame within which those defects and omissions

identified must be rectified; or

(c) if not satisfied that Completion has been achieved in relation to the on-grade or traffic signalling works, issue a notice to the Developer containing a comprehensive list of all items that the RTA considers necessary to be completed to achieve Completion.




(2) If the RTA issues a notice under clause 10.2(1)(c) the Developer must proceed to bring the on-grade works and/or the traffic signalling works (as applicable) to Completion and thereafter when it considers it has achieved Completion it will give the RTA written notice to that effect after which this clause 10.2 will reapply.

10.3 Private Verifier The Council must procure that the Private Verifier provides a certificate that the item of Works complies with all requirements of this Deed and is fit for occupation and use.

10.4 As-Built Drawings The Developer must provide the RTA and the Council with a copy of all As-Built Drawings: (1) in respect of the traffic signalling works, within 6 weeks of Completion; (2) in respect of on-grade works, within 6 weeks of Completion; and

(3) in respect of all other works, within 6 months of Completion.

10.5 Traffic signal works

Upon Completion of the Works, title in any traffic signalling work that has been incorporated into the Works will pass to an authority nominated by the RTA or if directed by the RTA, in favour of the RTA.

10.6 Traffic Signal Maintenance Fee

The Developer must pay to the RTA prior to Completion of the traffic signalling works a traffic signal maintenance fee of $215,000.00 inclusive of GST. The Developer has no future obligations in addition to the payment of this fee in respect of any future maintenance of the traffic signalling works.



ITEM 3 (continued) ATTACHMENT 3 10.7 On-Grade Defects

(1) The Developer agrees that under the DA Consent, the Developer is liable for any defects of the on-grade works on Devlin Street and Blaxland Road (between Church Street and Devlin Street) during the Defects Liability Period.

(2) Subject to clause 10.7(1), the RTA acknowledges that after the Defects

Liability Period the RTA will be responsible for the on-grade works. The Developer and RTA acknowledge that the Defect Liability Period commences after take over (switch-on) for the traffic signalling works.

11. Costs 11.1 Developer liable to pay RTA’s Costs

(1) The Developer must pay the RTA Costs, including:

(a) the RTA's costs in reviewing Design Documents and providing Approvals and any other consents, conditions or directions under the Deed;

(b) the RTA's project management costs for co-ordinating activities

associated with the Works and liaising with the Developer; (c) the cost of surveillance and associated administration of surveillance of

the Works; and (d) legal costs and expenses (on a solicitor and own client basis)

associated with the preparation, administration, enforcement and termination of this Deed.

(2) The Developer’s liability for RTA’s Costs is capped at $300,000.00, inclusive

of GST.




11.2 Developer to pay RTA’s Additional Costs (1) The Developer must pay to the RTA, the costs reasonably and properly

incurred arising from:

(a) the replacement cost of any material, equipment, stock or other item used or supplied by the RTA;

(b) the cost of repairs or replacement of any road or associated

infrastructure damaged: (i) by the Developer or its employees, contractors or persons under

the control of any of them; or (ii) attributed to damage caused by performance by the Developer of

its obligations under the Deed, except to the extent that the repair or replacement is the result of an act or omission for which the RTA is liable to the Developer at common law;

(c) the cost of remedying a breach of this Deed by the Developer; and (d) costs of emergency or special traffic control measures required by the

RTA. 11.3 Invoices from RTA

An itemised invoice of RTA Costs together with a certification from RTA's authorised representative that the RTA Costs incurred are true and accurate is sufficient evidence of RTA Costs unless a clear error has been made.

11.4 Payment of RTA’s Costs Subject to clause 11.3 and clause 11.1(2), an invoice for RTA Costs and interest accrued will be sent by the RTA to the Developer at not less than monthly intervals. The Developer must pay the full amount of the invoice within 10 Business Days from the date of the invoice, including any interest payable under clause 11.5.




11.5 Interest on RTA’s Costs The Developer must pay interest on any amount due to the RTA under this Deed but not paid at the rate stated in Item 3 of the Schedule from the day the amount became due until the date of payment.

11.6 Private Verifier’s Costs The Developer agrees to pay the costs incurred by the Council in engaging the Private Verifier for the purposes of this Deed provided that the Developer’s liability for costs under this clause: i. is capped at $300,000.00 inclusive of GST; and ii. is limited to reasonable costs that are true and accurately itemised by

personnel and activity on an hourly basis and are properly and reasonably attributable to a function of the Private Verifier under this Deed.

12. Liability and Indemnity 12.1 Indemnity

The Developer: (1) indemnifies and must keep indemnified the RTA, Council and their

employees, officers, agents and contractors from and against all claims, expenses, losses (including costs on a solicitor and client basis and whether incurred by or awarded against the RTA or the Council) that the RTA or the Council may sustain or incur as a result, of:

(a) any breach of this Deed by a negligent act or omission of the

Developer; (b) any injury or death to any person including any injury or death to the

employees, officers, agents and contractors of the Developer or the RTA or the Council; or

(c) damage to or loss of any property including any damage to or loss of

the Works or property of the Developer or the RTA or the Council, or



ITEM 3 (continued) ATTACHMENT 3 arising out of performance by the Developer of its obligations under the Deed including claims by a person who is not a party to this Deed, except to the extent caused or contributed to by the RTA, Council, their contractors, employees and agents; and

(2) acknowledges that:

(a) it, and not RTA or Council, is responsible and liable for the carrying out of the Works, management of construction and programming of the Works in compliance with the provisions of this Deed; and

(b) RTA and Council are relying on the advice, skill and judgment of the

Developer and its consultants and contractors in: i. the correctness and suitability of the Design Documents; ii. the performance of the Developer's obligations under this Deed; iii. the carrying out of the Works; and iv. the adequacy of the plant and equipment to be used in the Works

for the purposes of this Deed.

12.2 No limitation Without limiting the generality of clause 12.1(2)(b), the Developer must ensure that: (1) the processes and methods to be used for carrying out the Works will be

completely suitable for the purposes for which they are required; and (2) the Works are carried out in accordance with this Deed.

12.3 RTA or Council may remedy The Developer agrees that: (1) if it fails to remedy any breach of the Deed within 20 Business Days or such

longer period as is reasonable having regard to the breach after receiving a notice from the RTA or Council requiring the Developer to remedy the breach, the RTA or Council may remedy the breach at the cost of the Developer; and



ITEM 3 (continued) ATTACHMENT 3 (2) if remedial, protective or repair work, traffic management or traffic control

work is urgently required to prevent damage to the road infrastructure, or to property adjacent to the Works, or a breach of the Developer’s obligations under clause 8.2(1), or injury or death to any person, the RTA or Council may undertake that work at the cost of the Developer. The RTA or Council will, if practical, give notice to the Developer of the work urgently required and give the Developer reasonable opportunity to undertake the work.

13. Insurance (1) The Developer must provide the RTA with evidence of the public liability

policy of insurance and contracts works insurance effected in accordance with the Developer’s obligations under the Lease.

(2) The Developer agrees that in respect of its obligations to effect a public

liability policy of insurance under the Lease, it will procure that the contractor to be engaged by the Developer to undertake the Works includes the RTA and the Council as named insured parties on that policy in respect of any liability that arises out of the carrying out of the Works under the construction contract.

(3) The Council must confirm with the RTA that the required insurances have

been effected under the Lease to the satisfaction of the Council.

14. Termination 14.1 Default by Developer

If the Developer: (1) is unable to pay its creditors within the meaning of section 460 of the

Corporations Act 2001 or has proposed or made a composition with any or all of its creditors or has proceedings commenced against it or order or resolution made for its winding up or which may have the object of or result in its winding up;

(2) has a judgment debt against it outstanding for more than 7 days; (3) commits any material breach of the Deed, or (4) has a receiver or liquidator (including provisional) of any of its assets or

business or any official manager or administrator appointed;




and fails to remedy such event within 20 Business Days or such longer period as is reasonable having regard of consequences of the breach of a written request by the RTA or Council to do so, then the RTA or Council may, at their option and without prejudice to their other rights, or any accrued rights under this Deed, by notice in writing to the Developer:

(5) enter the Site and access the Works and may carry out any work or do any

act or thing that may be necessary to rectify the breach any works necessary to seal off and make safe any subsurface works carried out under Devlin Street and otherwise restore the Site to the condition it was in prior to the Works being commenced and recover the cost of doing so from the Developer; or

(6) terminate this Deed as from the date of the notice, and in that case exercise

of the powers referred to in 14.1(5).

14.2 Termination of Lease This Deed will automatically terminate on the termination of the Lease. If this Deed is terminated under this clause, RTA will have no claim against the Developer unless the Lease is lawfully terminated by the Council, in which case, the RTA may exercise the rights under clause 14.1(5) if the Council has not done so.

14.3 Take over the Works If the RTA or Council exercise their rights under clauses 14.1 or 14.2, they may engage contractors, including contractors of the Developer and subcontractors for that purpose. The RTA or Council may take possession of and permit other persons to use any materials or equipment to be incorporated into the Works. The Developer will have no right to any compensation or allowance for any action taken by the RTA or Council pursuant to this clause 14.3.

14.4 Termination of Deed If the Deed is terminated under clause 14.1 it will be deemed terminated as from the date when notice of termination in writing under the hand of the RTA or Council is served upon the Developer.




14.5 Adjustment of costs on completion All costs, losses, charges and expenses (including legal costs on a full indemnity basis) incurred by the RTA or Council exercising their rights under clause 14.1 are a debt due to the RTA or Council. Without limiting other rights, the RTA may require the Council to claim on the Security, and be reimbursed from those moneys claimed, the amount equal to those costs incurred by the RTA provided that the Council may firstly deduct any costs it has incurred and satisfy the RTA’s claim thereafter.

14.6 No release Termination by the RTA or Council will not release the Developer from liability in respect of any breach of, or non-performance of any obligation pursuant to this Deed.

15. Authorised Representatives 15.1 Representatives to Perform Functions

The authorised representative of the Developer as stated in Item 1 of the Schedule, the authorised representative of the RTA as stated in Item 4 of the Schedule and the authorised representative of the Council as stated in Item 6 of the Schedule may perform any function of the Developer, the RTA and the Council, respectively, under this Deed.

15.2 Developer’s Project Manager The Developer must: (1) appoint, for the duration of the Works, a Developer’s Project Manager, who is

suitably experienced in constructing works similar to the Works; and (2) notify the RTA and Council of the identity and contact details of the

Developer’s Project Manager and any change during the course of the Works.

15.3 Communications

A notice or communication given or made to an authorised representative is effective as if it had been given by the party they represent.




15.4 Substitution A party may substitute an authorised representative after first giving written notice to the other party.

16. Dispute Resolution 16.1 Notice of Dispute

If a party claims that a dispute has arisen under this Deed (the Claimant), it must give written notice to the other parties (the Respondent) stating the matters in dispute and designating as its representative a person to negotiate the dispute (a Claim Notice).

16.2 Response to Notice (1) Within 10 Business Days of receiving the Claim Notice, the Respondent must

notify the Claimant of its representative to negotiate the dispute. (2) If one of the Respondents is the Council, and the dispute is principally

between the RTA and the Developer, the Council may give notice to other parties electing not to be involved in the dispute and, if so, does not need to appoint a representative.

16.3 Negotiation

The nominated representatives must:- (1) meet to discuss the matter in good faith within 10 Business Days after

service by the Respondent of notice of its representative; and (2) use reasonable endeavours to settle or resolve the dispute within 15

Business Days after they have met.

16.4 Further Notice if not Settled If the dispute is not resolved within 15 Business Days after the nominated representatives have met, either party may give to the other a written notice calling for determination of the dispute (Dispute Notice). If the dispute relates to a technical claim or question in relation to the Works (Technical Dispute), the Dispute Notice must adequately identify the nature of the Technical Dispute and the date on which the Technical Dispute is alleged to have arisen.




16.5 Reference to Expert (1) Within 10 Business Days of receiving a Dispute Notice submitted by a party

pursuant to clause 16.4 in relation to a Technical Dispute, the parties must seek to agree upon, and if agreed upon, appoint an expert. In the event that the parties cannot agree on an expert to be appointed, the appointment of the expert is to be referred to the President of the Institute of Arbitrators and Mediators Australia (NSW Chapter).

(2) For all Technical Disputes, the expert must:

(a) have reasonable qualifications and practical experience in road and safety matters; and

(b) have no interest or duty which conflicts or may conflict with his function

as expert he being required to fully disclose any such interest or duty before his appointment.

(3) The parties must refer the Technical Dispute to the expert for determination

within 5 Business Days of the expert’s appointment.

16.6 Rules The expert must determine the dispute in accordance with RTA’s Rules for the Expert Determination Process and the Code of Conduct for an Expert, a copy of which RTA must make available to the Developer on request.

16.7 Assistance Each party must do all things necessary on its part for the proper conduct of the expert determination.

16.8 Expert not an Arbitrator In determining the dispute the expert will be acting as an expert and not as an arbitrator.




16.9 Mediation The parties agree that a dispute which is not a Technical Dispute should be mediated, in which case: (1) the parties must agree the terms of reference of the mediation within 5

Business Days of the receipt of the Dispute Notice (the terms shall include a requirement that the mediation rules of the Institute of Arbitrators and Mediators Australia (NSW Chapter) apply);

(2) the mediator will be agreed between the parties, or failing agreement within 5

Business Days of receipt of the Dispute Notice, either party may request the President of the Institute of Arbitrators and Mediators Australia (NSW Chapter) apply to appoint a mediator;

(3) the mediator appointed pursuant to this clause 16.9 (Mediator) must:

(a) have reasonable qualifications and practical experience in the area of

the dispute; and (b) have no interest or duty which conflicts or may conflict with his function

as mediator, he being required to fully disclose any such interest or duty before his appointment;

(4) the Mediator will be required to undertake to keep confidential all matters

coming to his knowledge by reason of his appointment and performance of his duties;

(5) the parties must within 5 Business Days of receipt of the Dispute Notice notify

each other of their representatives who will be involved in the mediation; (6) the parties agree to be bound by a mediation settlement and may only initiate

judicial proceedings in respect of a dispute which is the subject of a mediation settlement for the purpose of enforcing that mediation settlement;

(7) in relation to costs and expenses:

(a) each party will bear their own professional and expert costs incurred in

connection with the mediation; and



ITEM 3 (continued) ATTACHMENT 3 (b) the costs of the mediator will be shared equally by the parties unless

the mediator determines a party has engaged in vexatious or unconscionable behaviour in which case the mediator may require the full costs of the mediation to be borne by that party.

16.10 Litigation

If the dispute is not finally resolved in accordance with clauses 16.5 to 16.9, either party is at liberty to litigate the dispute.

16.11 Continue to perform obligations Each party must continue to perform its obligations under this Deed, notwithstanding the existence of a dispute.

17. General 17.1 Project Control Group Meetings

The parties acknowledge that the RTA may attend project control group meetings between the Council and the Developer under the Lease in an observation status only.

17.2 Provision of Information The parties agree that all information involving the project control group in relation to the Works must be sent to all parties under this Deed.

17.3 No Representations by RTA or the Council The RTA and the Council make no representation or warranty as to the Works and assumes no duty of care in respect of them or any information provided by the RTA (excluding traffic programming data, phasing or the electronics associated with the traffic signaling) or the Council.

17.4 Advertising The parties acknowledge that the relevant legislation and process must be followed in relation to any advertising and that the RTA will comment on any proposed advertising in accordance with their policies and guidelines under that legislation and process.




17.5 No Restriction on Rights Nothing in this Deed is deemed to: (1) authorise any nuisance to or permanent obstruction of the site of the Works

or public places; or (2) in any way restrict or limit the powers of the RTA or other relevant Authority

or fetter the RTA in the exercise of its statutory functions and in the event such exercise is undertaken in accordance with the law, such exercise cannot and does not constitute a breach of the Deed.

17.6 Notices

(1) A party notifying or giving notice under the Deed must do so in writing sent by prepaid registered post or facsimile and the original by post to the Representative at the address or facsimile number specified in Item 1 or Item 4 of the Schedule.

(2) A notice given in accordance with clause 17.6 will be deemed to have been

given and received:

(a) if delivered, on receipt; (b) if posted, 3 Business Days after posting; and

(c) if sent by facsimile on confirmation of the correct transmission of the

facsimile. (3) Any notice received after 5.00pm or on a day not a Business Day will be

deemed to have been received at 9.00am on the next Business Day.

17.7 Assignment (1) The Developer must not assign or encumber any right, obligation or interest

under this Deed without the written approval of the RTA and Council, such approval not to be unreasonably withheld. Approval is reasonably withheld if the proposed assignee or person giving an encumbrance of a right, obligation or interest is not solvent and reputable and the assignment or encumbrance will materially adversely affect the obligations of the Developer and the rights of the RTA and Council.



ITEM 3 (continued) ATTACHMENT 3 (2) If the Developer transfers its interest in the Works, the Developer must at its

own cost obtain a covenant by deed from the purchaser or transferee in favour of the RTA and Council that the purchaser or transferee will comply with and be bound by the provisions of this Deed. If the Developer changes ownership, the Deed will be deemed assigned to the new owner.

17.8 Waiver

Failure by a party to compel performance of any term or condition of this Deed does not constitute a waiver of that term or condition and does not impair the right of the party to enforce it at a later time or to pursue remedies it may have for any subsequent breach of that term or condition.

17.9 Joint and Several Liability If the Developer comprises more than one person, those persons are jointly and severally liable for the performance and obligations of the Developer.

17.10 Governing Law

This Deed is governed by New South Wales law.

17.11 Stamp duty

The Developer will be liable to pay any stamp duty payable on this Deed.

17.12 Prior agreements with the RTA superseded This Deed: (1) wholly replaces and excludes all prior agreements, correspondence,

negotiations, representations, explanations and statements between the Developer and the RTA covering or in connection with the matters covered by this Deed; and

(2) is the entire agreement between the Developer and the RTA in respect of

the Works.



ITEM 3 (continued) ATTACHMENT 3 17.13 Lease Agreement with the Council

(1) The Council and the Developer agree that this Deed does not affect any of

the rights and obligations of the parties under the Agreement or the Lease and to the extent of any inconsistency the terms of the Agreement and Lease will prevail.

17.14 Modification of Deed

No modification or alteration of any provision of this Deed will be valid unless it is in writing and signed by the Developer, the RTA and the Council.

18. GST 18.1 Interpretation

In this clause:- (1) the expressions ”adjustment note”, ”consideration”, ”Goods and Services

Tax”, ”GST”, ”supply”, ”tax invoice”, ”recipient” and ”taxable supply” have the meaning given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999;

(2) a reference to a payment being made or received includes a reference to

consideration other than money being given or received. 18.2 Calculation of GST

(1) Unless otherwise expressly stated, all prices or other sums payable or payment to be made under or in accordance with this Deed, do not include an amount for GST.

(2) To the extent that any supply made under or in connection with this Deed is a

taxable supply, the GST exclusive consideration otherwise to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is otherwise to be paid or provided.




(3) To the extent that 1 party is required to reimburse or indemnify another party for a loss, cost or expense incurred by that other party, that loss, cost or expense does not include any amount in respect of GST for which that other party is entitled to claim an input tax credit.

(4) To the extent that any consideration payable to a party under this Deed is

determined by reference to a cost incurred by a party, or is determined by reference to a price, value, sales, revenue or similar amount, the GST exclusive amount of that cost, price, value, sales, revenue or similar amount must be used.

18.3 GST invoices

(1) The RTA will issue a tax invoice for each taxable supply it makes to the Developer without request.

(2) The RTA will issue to the Developer a recipient created tax invoice (”RCTI”)

for each taxable supply (other than an excluded supply) made by the Developer to the RTA, and will issue an adjustment note for any adjustment event. The parties may agree in writing from time to time which supplies are excluded supplies.

(3) The Developer must not issue a tax invoice in respect of any supply it makes

to the RTA, other than for an excluded supply. The Developer must give the RTA a tax invoice for an excluded supply at or before the time the Developer invoices the RTA for that supply.

(4) Each party must notify the other party if it ceases to be registered for GST or

it ceases to comply with any of the requirements of any taxation ruling issued by a taxation authority relating to the creation of RCTIs.

(5) Each party acknowledges and warrants that at the time of entering into this

Deed, it is registered for GST. (6) The RTA will not issue a document that will otherwise be an RCTI, on or after

the date when the Developer fails to comply with any of the requirements of any taxation ruling issued by a taxation authority relating to the creation of RCTIs.



ITEM 3 (continued) ATTACHMENT 3 Executed as a deed Date: SIGNED, SEALED AND DELIVERED by BEVILLESTA PTY LTD in accordance with section 127 of the Corporations Act 2001

) ) )

……………………………………………… Signature of director

………………………………………………

Name of director (print) ………………………………………………

Signature of director / secretary ………………………………………………

Name of director / secretary Executed by Michael Whittaker as Attorney for RYDE CITY COUNCIL under Power of Attorney registered No. 520 Book 4449 in the presence of:

) )))

……………………………………………… Witness ……………………………………………… Name of witness (print)

……………………………………………… Michael Whittaker ……………………………………………… General Manager

SIGNED, SEALED AND DELIVERED by ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES by its authorised delegate in the presence of

) ) ) )

……………………………………………… Witness ……………………………………………… Name of witness (print)

……………………………………………… Delegate ……………………………………………… Name of delegate (print)




Schedule Item 1 Name of Developer:

(Parties and clause 15.1) Address: Authorised Representative: Telephone: Fax:

Bevillesta Pty Ltd ABN: 82 008 428 162 Suite 302/35 Lime Street King Street Wharf Sydney, NSW 2000 Mitchell Corn, Project Director 02 8986 5350 02 9262 5600

Item 2 Road: (clause 0)

Portion of Devlin Street and Blaxland Road

Item 3 Rate of Interest on overdue payments: (clause 11.5

(10% per annum if nothing is stated)

Item 4 Authorised Representative of RTA: (clause 15.1) Address: Authorised Representative: Telephone: Fax:

85 Flushcombe Road Blacktown NSW 2148 Colin Langford 02 8814 2339 02 8814 2142

Item 5 Estimated RTA Costs (clause 0):

$300,000.00 (Inclusive of GST)

Item 6 Authorised Representative of Council: (clause 15.1) Address: Authorised Representative: Telephone: Fax:

1 Devlin Street, Ryde Michael Whittaker 02 9952 8050 02 9952 8055



ITEM 3 (continued) ATTACHMENT 3 Item 7 Defects Liability Period

(clause 1.1) 12 months from the date of Completion

Item 8 Agreed Capitalised Maintenance Costs: (clause 0)

$215,000 [for 3 new signal sites] (Inclusive of GST)




Attachment A - Design Standards (Note: Schedules are to be attached upon execution of the document)




Attachment B – Development Consent 672/2006 (Note: Schedules are to be attached upon execution of the document)




Attachment C - Section 138 Approval (Note: Schedules are to be attached upon execution of the document)




Attachment D – Program for Staged Design (Note: Schedules are to be attached upon execution of the document)




Attachment E – Integrated Traffic Solution (Note: Schedules are to be attached upon execution of the document)




Attachment F – Maintenance Area Drawing (Note: Schedules are to be attached upon execution of the document)




Attachment G –Signage Plan (Note: Schedules are to be attached upon execution of the document)




Attachment H – Project Requirements

1. All civil and structural works within the road reserve (including ramps, tunnels and pedestrian bridges) must be carried out and completed to RTA QA Specifications apart from the highlighted items attached to the QA specifications listed below: (a) Conditions of Contract C2 to C41 page 3 as these will be to the developers

standard conditions of contract with the contractor (b) G34, G37 page 4 Environmental Protection as this will be to the developers

requirements with the contractor (c) Q2 to Q5 Page 5 Quality management as this will be the developer’s

responsibility with the contractor (d) Maintenance Contract Documents, Guides and Specifications Page 16 & 17

as these do not apply to this deed 2. A suitably qualified independent consultant (i.e. Chartered Engineer registered with

the Institution of Engineers Australia) is to be engaged by Council as the Project Verifier, at the Developer’s cost, to certify that all the requirements of this Deed are met, including the quality of the work and the materials incorporated into the works are in accordance with the plans and RTA QA Specifications. The Verifier must be familiar with and experienced in using RTA QA Specifications.

3. The civil and structural works component is to be undertaken by a suitably pre-

qualified contractor acceptable to the RTA. 4. The traffic signal installation is to be undertaken by a suitably pre-qualified Traffic

Signal Contractor acceptable to the RTA. 5. The traffic signal installation work must be in accordance with RTA QA

Specification SI/TCS/8. Without limitation of the other provisions of the specification, the hold points in that specification must be observed. Due to the specialised nature of traffic control signal installations, the RTA requires that adequate notice be given to it for release of these hold points, so that its representative can also witness these achievements.

6. All traffic signal equipment must be new, must be supplied by the Developer or its

contractor (including without limitation housing labels) and must comply with RTA Specifications. LED (Light Emitting Diode) traffic signal lanterns are to be used for the traffic signal works.

7. The Developer, at its cost, is to engage the RTA’s Traffic Services Section at

Yennora Works Centre to certify that all the traffic signal works are in accordance with the Traffic Control Signal plans and Traffic Control Signal specifications.



ITEM 3 (continued) ATTACHMENT 3 8. The Quality Plan must make provision for quality audits and the results of those

audits must be provided to the RTA within 10 Business Days of the audit being undertaken.

9. The Inspection and Testing Plans must be certified by the Project Verifier at the

end of each calendar month, that the Works performed during the month are in accordance with the plans and specifications specified under this Deed. A copy of the certification must be provided to the RTA within ten business days of the end of that month.

10. In addition, a summary of the results of all inspections and tests, described in the

Inspection and Testing Plans, carried out within a particular calendar month during the course of the Works are to be forwarded to the RTA within 10 Business Days of the end of that month.

11. The drawings must include the provision of all necessary road markings and sign

posting. All road markings and signposting must be approved by the RTA using RTA Form No. 385 Installation of Signs and Markings (Authority). The Inspection and Testing Plan must reflect this requirement.

12. All affected utilities are to be relocated to allow for the works and meet the

requirements of the RTA and all relevant utility authorities. RTA approval MUST be obtained prior to utilities being relocated outside of the standard ‘Public Utility Space Allocations’ as detailed in the RTA Road Design Guide. In particular, power poles and lighting columns must be relocated at least three (3) metres behind back of kerb.

13. Prior to Completion the Developer must make good, to the satisfaction of the RTA

and the Council any damage to the existing road structures (including without limitation road signage, signalling equipment and footpaths) caused during the Works.

14. Part of the Development works under the Deed (as detailed in Attachment F) will

become the responsibility of the RTA. 15. Detailed Staging / Traffic Management Plans must be submitted to the RTA, with

sufficient notice to allow adequate time for review and assessment prior to any planned traffic switches. Works in and around Traffic Signals will require the acceptance of the RTA’s Network Operations Section.



ITEM 4 CONFIDENTIAL ADVICE ON COURT ACTIONS

Confidential This item is classified CONFIDENTIAL under Section 10A(2)(g) of the Local Government Act, 1993, which permits the meeting to be closed to the public for business relating to the following: (g) advice concerning litigation or advice that would be privileged from production in

legal proceedings on the ground of legal professional privilege. This matter is classified confidential because it contains advice concerning legal matters that are:- (a) substantial issues relating to a matter to which the Council is involved. (b) clearly identified in the advice, and (c) fully discussed in that advice. It is not in the public interest to reveal all details of this matter as it would prejudice Council’s position in any court proceedings. Sue Weatherley ACTING GENERAL MANAGER

COUNCIL MEETING 24 JULY 2007

Precis of Correspondence for Consideration

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1 From: NSW Local Government Grants Commission, Dated: 4 July 2007, RE: Grant Entitlements for 2007/2008



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RECOMMENDATION: Submitted for Council's information/consideration.



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2. From: Independent Commission Against Corruption, Dated: 6 July 2007, RE: Ryde Civic Centre – Sale of Stratum Lot/Subdivision, Devlin Street, Ryde – Proposed Use of Roadways and PPP with Bevillesta Pty Ltd.

RECOMMENDATION: Submitted for Council's information/consideration.


Notices of Motion

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(1) Councillors Butterworth and Wilde OAM will move:-

“That consideration be given to undertaking a traffic study in Gerrish Street, Gladesville with particular reference to ‘rat running’, line marking and the possible installation of a rumble strip at the intersection of Gerrish Street and Ryde Road, Gladesville.”

CITY OF RYDE ACTING GENERAL MANAGER’S REPORT NO. 13/07 ...

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