Completion bond agreement

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					Agreement
Completion Bond
To secure completion of development within the timeframe specified in a condition imposed under
s3.5.21A of the Integrated Planning Act 1997.
This Agreement must be entered into and the bond provided before the date for provision of the
bond specified in the condition.



DATE
                            Day                     Month                                      Year
                            Date to be inserted by the delegated officer upon signing the agreement on behalf of Council


PARTIES
Council                     COUNCIL OF THE CITY OF GOLD COAST ABN 84 858 548 460 (and
                            its successors and administrators), whose address for service for any
                            notices under this Agreement is The Chief Executive Officer, Gold
                            Coast City Council, PO Box 5042 Gold Coast Mail Centre QLD 9729.

Applicant                   Insert Applicant's full name (if company include ACN), whose address
                            for service for any notices under this Agreement is
                            Insert address (if company, registered office address).

LAND                        Insert real property description located at Insert street address.

DEVELOPMENT                 Development permit for material change of use / reconfiguring a lot /
PERMIT                      operational work delete inapplicable in respect of the Land given by
                            decision notice / negotiated decision notice delete inapplicable dated
                            insert date annexed in Schedule 1.

                            GCCC reference             Insert application/approval #

COMPLETION                  Condition insert condition # of the Development Permit.
CONDITION

COMPLETION DATE             Insert date of completion required by the Completion Condition

COMPLETION BOND             $insert amount approved by Council in the form of cash / cheque /
                            unconditional bank guarantee dated insert date given by
                            insert name of bank referring to Liability No. insert Liability No.
                            delete inapplicable.

THE PARTIES AGREE

1.   Obligation to          1.1    The Applicant acknowledges that pursuant to section 3.5.21A(1)
     complete                      of the Integrated Planning Act 1997 the Completion Condition
     development                   requires development/an aspect of development to be completed
     within timeframe              by the Completion Date and the payment of security to support
                                   the condition.
                            1.2    The Applicant agrees to do all things necessary to complete the
                                   development the subject of the Completion Condition by the
                                   Completion Date (or any extension of that date in accordance
                                   with clause 8).


COMPLETION BOND AGREEMENT      V1_DRAFT FOR DISCUSSION_last printed 14/12/2007 3:19 PM                             Page 1 of 7
2.   Payment of bond        To secure the Applicant’s completion of the development the subject of
                            the Completion Condition by the Completion Date, the Applicant
                            agrees to provide the bond to Council at the time of signing of this
                            Agreement.
3.   Return of bond         3.1   The bond is returnable to the Applicant upon Council being
     and retaining of             satisfied the development the subject of the Completion
     interest                     Condition has been completed by the Applicant in accordance
                                  with the Development Permit. If, however, Council calls up the
                                  bond to carry out or procure the carrying out of any of the actions
                                  under clause 4.1b, only the remaining balance (if any) of the
                                  bond is returnable to the Applicant.
                            3.2   The Applicant shall request in writing the return of the bond.
                            3.3   Despite clause 3.1, any interest that accrues on the bond shall
                                  be retained by and paid to Council.
4.   In event of            4.1   If the Applicant fails to complete the development the subject of
     Applicant’s failure          the Completion Condition by the Completion Date:
     to complete                  a      The Development Permit, to the extent it relates to the
     development                         development not completed, lapses, in accordance with
     within timeframe                    section 3.5.21A(3) of the Integrated Planning Act 1997; and
                                  b       Council may at its absolute discretion, even though the
                                          Development Permit has lapsed, carry out or procure the
                                          carrying out of any one or more of the following actions (at
                                          Council’s absolute discretion):
                                          i     works necessary to complete the development the
                                                subject of the Completion Condition in accordance
                                                with the Development Permit;
                                          ii      alterations or amendments to any improperly
                                                  completed or partly completed works as Council may
                                                  consider appropriate, without completing the
                                                  development;
                                          iii     the implementation of such measures and/or such
                                                  other work (including any addition or extension to any
                                                  works done by the Applicant) as Council may
                                                  consider appropriate to mitigate the effects of any
                                                  incomplete or improperly completed work, without
                                                  completing the development.
                            4.2   If Council decides to carry out or procure the carrying out of any
                                  action under clause 4.1b, Council will certify the fair estimated
                                  cost of the action (including Council’s charges for supervision,
                                  interest, administration costs, legal costs on an indemnity basis,
                                  overheads and such reasonable contingency sum as may in the
                                  absolute discretion of Council be determined).
                            4.3   The Applicant agrees that Council:
                                  a    may apply the bond (drawing it from Council’s trust fund
                                       where the bond was a sum of money placed in the trust
                                       fund or recovering it from the obliger where the bond was a
                                       bank guarantee, or a combination of both) to the cost of
                                       any action/s carried out or procured by Council under
                                       clause 4.1b; and
                                  b    in the event that the actual cost incurred by Council in


COMPLETION BOND AGREEMENT     V1_DRAFT FOR DISCUSSION_last printed 14/12/2007 3:19 PM           Page 2 of 7
                                          carrying out or procuring any of the actions under clause
                                          4.1b exceeds the amount of the bond:
                                          i     Council will be entitled to recover any shortfall from
                                                the Applicant as a liquidated debt; and
                                          ii    the Applicant agrees to pay the shortfall to Council.
5.   Entry onto Land        5.1   The Applicant irrevocably authorises Council and Council’s
                                  employees, contractors, sub-contractors and agents to enter onto
                                  the Land with all necessary vehicles, plant and equipment to:
                                  a     monitor the Applicant’s progress in completing the
                                        development the subject of the Completion Condition;
                                  b     satisfy itself whether the development has been completed
                                        in accordance with the Development Permit; and
                                  c     carry out any of the actions under clause 4.1b.
                            5.2   Where the Applicant is not the owner of the Land:
                                  a   the Applicant warrants that the Applicant has the owner’s
                                      permission to authorise Council’s and Council’s
                                      employees’, contractors’, sub-contractors’ and agents’
                                      entry onto the Land pursuant to clause 5.1; and
                                  b   the written consent of the owner in the form attached in
                                      Schedule 2 must be provided to Council at the time the
                                      Applicant signs this Agreement.
6.   Indemnity and          6.1   The Applicant hereby indemnifies Council and Council’s
     release                      employees, contractors, sub-contractors and agents against all
                                  liability, loss, penalties, payments, costs charges and expenses
                                  directly or indirectly arising from or incurred in connection with
                                  damage to or loss of any property or injury of any person caused
                                  or contributed to by Council and Council’s employees,
                                  contractors, sub-contractors and agents (except where arising
                                  from the negligent act or omission of Council or Council’s
                                  employees, contractors, sub-contractors and agents).
                            6.2   The Applicant releases Council and Council’s employees,
                                  contractors, sub-contractors and agents from and agrees that
                                  Council is not liable for liability, loss, penalties, payments, costs,
                                  charges and expenses directly or indirectly arising from or
                                  incurred in connection with Council doing anything Council is
                                  required or permitted to do under this Agreement (except where
                                  arising from the negligent act or omission of Council or Council’s
                                  employees, contractors, sub-contractors and agents).
                            6.3   The indemnity and release in clause 6 is independent of the
                                  Applicant’s other obligations under this Agreement and does not
                                  come to an end when this Agreement ends.
7.   No waiver or effect    7.1   A failure or delay to exercise or enforce any right, remedy, power
     on other rights              or privilege under this Agreement by Council will not operate as a
     and obligations              waiver unless and until expressly communicated in writing by
                                  Council (under the hand of the Chief Executive Officer) to the
                                  Applicant.
                            7.2   This Agreement does not affect:
                                  a     any other rights, powers or remedies available to Council,
                                        including enforcement powers under the Integrated
                                        Planning Act 1997 or the Local Government Act 1993; or
                                  b     any obligations of the Applicant to comply with


COMPLETION BOND AGREEMENT     V1_DRAFT FOR DISCUSSION_last printed 14/12/2007 3:19 PM           Page 3 of 7
                                          development approvals, the planning scheme and any
                                          other local planning instruments.
8.   Amendment and          8.1   Any extension to the Completion Date must first be sought as a
     extension of                 request under section 3.5.33 of the Integrated Planning Act 1997
     timeframe                    to change the Completion Condition. If Council approves such a
                                  change, the Applicant may seek an amendment to this
                                  Agreement to reflect the extended timeframe.
                            8.2   Subject to clause 9, the Applicant shall not assign, either
                                  absolutely or by way of security, its interest, rights or obligations
                                  under this Agreement without the prior written consent of Council
                                  under the hand of the Chief Executive Officer, which consent
                                  shall not unreasonably withheld and which may be on conditions.
                            8.3   Any amendment to this Agreement is effective only if in writing
                                  signed by both parties.
9.   Transfer of            9.1   The Applicant shall not sell, transfer or otherwise alienate the
     ownership of Land            Land or an interest in the Land (other than to Council pursuant to
                                  a condition of development approval) prior to the performance
                                  and fulfilment of the Applicant’s obligations under this Agreement
                                  except subject to the condition that the purchaser, transferee or
                                  alienee shall:
                                  a       Enter into a deed of novation of this Agreement whereby
                                          the purchaser, transferee or alienee becomes contractually
                                          bound to Council to perform and fulfil the provisions of this
                                          Agreement as remain unperformed or unfulfilled by the
                                          Applicant at the time of such sale, transfer or alienation.
                                          Council may require the deed of novation to be subject to
                                          conditions that are not inconsistent with the provisions of
                                          this Agreement; and
                                  b       Obtain at its own cost and expense in favour of Council on
                                          terms approved by Council a bond to secure compliance
                                          with this Agreement.
                            9.2   Until the proposed purchaser, transferee or alienee executes the
                                  required deed of novation and furnishes the required bond to
                                  Council, the Applicant shall remain liable for the performance and
                                  fulfilment of this Agreement as though no sale, transfer or
                                  alienation had taken place.
10. Costs and stamp         The costs, charges and expenses of and incidental to the preparation,
    duty                    completion and stamping of this Agreement and of stamp duties
                            payable on this Agreement and all counterparts to it is to be borne and
                            paid by the Applicant.
11. Entire agreement        This Agreement (which includes Schedules 1 and 2) contains the entire
                            agreement between the parties with respect to its subject matter and
                            supersedes all earlier conduct, prior agreements and understandings
                            between the parties in connection with its subject matter.




COMPLETION BOND AGREEMENT     V1_DRAFT FOR DISCUSSION_last printed 14/12/2007 3:19 PM          Page 4 of 7
EXECUTED BY THE PARTIES AS A DEED.


SIGNED, SEALED AND DELIVERED BY
THE APPLICANT under Section 127 of the
Corporations Act in the presence of:


                                                         ←                                                                  ←
Signature of director                                            Signature of director/company secretary
                                                                 (Delete inapplicable)




Name of director (print)
                                                         ←       Name of director/company secretary (print)
                                                                                                                            ←
On
         Day               Month          Year




THE COMMON SEAL OF THE COUNCIL
OF THE CITY OF GOLD COAST was
hereunto affixed by


                                                         ←
Name of Authorised Officer
in the presence of



                                                         ←                                                                  ←
Signature of Authorised Witness                                  Name of Authorised Witness (print)


On
         Day               Month          Year




COMPLETION BOND AGREEMENT          V1_DRAFT FOR DISCUSSION_last printed 14/12/2007 3:19 PM                    Page 5 of 7
SCHEDULE 1 – DEVELOPMENT PERMIT [TO BE ANNEXED]




COMPLETION BOND AGREEMENT   V1_DRAFT FOR DISCUSSION_last printed 14/12/2007 3:19 PM   Page 6 of 7
SCHEDULE 2 – OWNER’S CONSENT TO ENTRY


To Gold Coast City Council


 I,
        Owner to print name (if company, include ACN; if joint tenants or tenants-in-common, print all)


 as the owner of the Land agree to Council and Council’s employees, contractors, sub-contractors
 and agents to enter onto the Land with all necessary vehicles, plant and equipment to:

 1.   monitor the Applicant’s progress in complying with clause 1 of the Completion Bond
      Agreement between Council and the Applicant;
 2.   satisfy itself whether clause 1 of the Completion Bond Agreement between Council and the
      Applicant has been complied with; and
 3.   carry out any of the actions under clause 4.1b of the Completion Bond Agreement between
      Council and the Applicant.
I release Council and Council’s employees, contractors, sub-contractors and agents from, and
agree that Council is not liable for, liability, loss, penalties, payments, costs, charges and expenses
directly or indirectly arising from or incurred in connection with Council doing anything Council is
required or entitled to do under the Completion Bond Agreement between Council and the
Applicant (except where arising from the negligent act or omission of Council or Council’s
employees, contractors, sub-contractors and agents).
In the event that I sell or otherwise transfer ownership of or grant an interest in the Land to another
person, I agree to procure that person’s written consent to the entry by Council and Council’s
employees, contractors, sub-contractors and agents in the above terms and provide it to Council
within five business days of settlement/completion of the transfer or grant.




 Duly signed by the owner                                       Date




COMPLETION BOND AGREEMENT         V1_DRAFT FOR DISCUSSION_last printed 14/12/2007 3:19 PM                 Page 7 of 7

				
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Description: Completion bond agreement