Agenda Item 9.3

Report No. 39/17ccs

TO:

SUBJECT:

AUTHOR:

CORPORATE AND COMMUNITY SERVICES COMMITTEE - MONDAY 13 MARCH 2017SUPREME COURT LANEWAY

COUNCIL SOLICITOR - CHRIS TURNER

EXECUTIVE SUMMARY

This Report recommends the execution by Council of a deed of agreement with 19 Parsons Street Pty Ltd in accordance with its resolution of the August 2016 Ordinary meeting.

RECOMMENDATIONThat it be a recommendation to Council:

That Council authorise the affixing of its common seal to the deed to be attested by the Mayor and CEO in accordance with section 26(2) of the Local Government Act.

REPORT

1. BACKGROUND

At its August 2016 Ordinary meeting, this Council resolved ‘that the Council Solicitor proceed to draw a draft Deed of Agreement incorporating the heads of agreement discussed [in the Report received and noted at the meeting], for submission to 19 Parsons Street Pty Ltcf. A copy of that Report is attached to refresh the memory of members (Attachment A). The minutes of the meeting record that the CEO had advised that the development of public art would be decided by the Public Art Advisory Committee and come from its budget line and it was resolved that the public art section be removed from the negotiation.

2. DISCUSSION

In accordance with the resolution, the draft deed of agreement has been drawn and approved by 19 Parsons Street through its director, Mr Michael Sitzler (Attachment B).

It is recommended that Council authorise the affixing of its common seal to the deed to be attested by the Mayor and CEO in accordance with section 26(2) of the Local Government Act.

3. ATTACHMENTS

A. Report to Ordinary Council August 2016 Ordinary meetingB. Deed of Agreement for execution

UNCIL SOLICITOR

Rex MooneyCHIEF EXECUTIVE OFFICER

DEED OF AGREEMENT made this day of 2017

BETWEEN: ALICE SPRINGS TOWN COUNCIL, a municipal Councilconstituted pursuant to the Local Government Act of Council Chambers, Todd Street, Alice Springs in the Northern Territory of Australia ('the Covenantor') of the other part

AND: 19 PARSONS STREET PTY LTD (ABN 80 852 545 866) of PO Box671, Alice Springs aforesaid ('the Covenantee') of the one part

RECITALS

A. The land identified as 'A' in the plan annexed hereto is pursuant to section 187(3) of the Local Government Act vested in the Covenantor ('the vested land').

B. The Covenantor is also registered as the proprietor of an estate in fee simple in Lot 5707 Town of Alice Springs identified as 'B' in the plan attached hereto and as delineated in Plan S2013/14 and being the whole of the land comprised in Certificate of Title Register Book Volume 781 Folio866 ( Lot 5707');

C. The Covenantee is registered as the proprietor of an estate in fee simple in Lot 6397 Town of Alice Springs ('the developed land') on which is being constructed a mixed use development including predominately the Supreme Court of the Northern Territory in Alice Springs ('the development') and which is expected to be completed in early 2017.

D. The vested land joins with Lot 5707 which prior to the commencement of the construction of the development provided a pedestrian laneway from Parsons Street to the Hartley Street carpark ('the laneway');

E. On completion of the development, the Covenantor intends to reopen the laneway as a pedestrian thoroughfare for the convenience and benefit of the public including the users and occupants of the development; and

F. The Covenantor and the Covenantee have agreed that the laneway shall for the term of this Deed remain open as a pedestrian thoroughfare on the terms and conditions herein contained.

OPERATIVE PART

1. Recitals

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The parties hereto acknowledge and declare that the recitals are true andaccurate in every respect.

2. Term

(a) The term of this Deed ('the term7) shall subject to subclause (b) commence on the 1st day of July 2017 and expire at midnight on the 30th day of June 2037 such that it will be TWENTY (20) YEARS.

(b) In the event that completion of the development is delayed beyond the 30th day of June 2017, the term shall commence thirty (30) days after the issue of the Permit to Occupy for the development but still expire at midnight on the 30th day of June 2037.

3. Pedestrian thoroughfare

(a) Throughout the term, the Covenantor shall consistent with its care, control and management of roads under Part 12.3 of the Local Government Act maintain and keep open the laneway as a pedestrian thoroughfare but always subject to this Deed.

(b) Nothing in this Deed shall prevent the Covenantor from:

(i) impeding such pedestrian access for the purpose of repair and maintenance of the laneway from time to time; and

(ii) for the purpose of such repair and maintenance, using or permitting the use of vehicles plant and equipment in the laneway.

(c) For the avoidance of doubt, the Covenantor covenants with the Covenantee not without the prior written consent of the Covenantee to sell, assign or otherwise divest its right title and interest in the vested land or Lot 5707 or any part of each for the term.

4. Contribution by Covenantor

(a) For each of the first ten (10) years of the term, the Covenantee shall contribute to a maximum of FIVE TFIOUSAND DOLLARS ($5,000.00) (ex GST) for the cleaning, repair and maintenance of the laneway undertaken by the Covenantor in accordance with its statutory obligations.

(b) Such payment shall be made upon the issue of a tax invoice by the Covenantor to the Covenantee on or after the 30th day of June in respect of the immediately preceding financial year (subject to any necessary

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adjustment by virtue of clause 2(b) of this Deed) representing the Covenantor's actual costs on such cleaning, repair and maintenance for that financial year.

5. Development fees and charges

In further consideration of this Deed, the Covenantor agrees to waive all fees and charges owing to it by the Covenantee in respect of the Covenantor's development assessment services provided in relation to the development.

6. Extension of term

The parties agree to meet at least ONE (1) YEAR before the expiration of the term to act in good faith to negotiate an extension of the term recognising their respective interests and those of the community of Alice Springs.

7. Assignment by Covenantee

The Covenantee may without restriction assign the benefit of this Deed to the successor in title to the developed land including the benefit of this clause.

8. Force Majeure

(a) In this clause 8, 'Force Majeure Event' means an event or a circumstance:

(i) beyond the reasonable control of the Covenantor; and

(ii) which occurs without the fault or negligence of the Covenantor; and

(iii) which causes or results in a default or delay in the performance by the Covenantor its obligations under clause 3(a) of this Deed; and

(iv) where such default or delay and the occurrence and the effects of such event or circumstance could not have been prevented, overcome or remedied by the exercise by the Covenantor of a standard of foresight, care and diligence consistent with that of a municipal council in the Northern Territory under the circumstances; and

(v) which includes any one or more of the following provided they meet the above qualifications:

(A) war (declared or undeclared), insurrection, civil commotion,military action, terrorism or an act of sabotage or vandalism; and

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(B) a strike, lockout, blockade, picketing action or industrial action, dispute or disturbance of any kind; and

(C) an act of God; and

(D) an unavoidable accident, explosion, breakdown or damage to or confiscation of property; and

(E) a storm, cyclone, tempest, fire, flood, earthquake or other natural calamity; and

(F) an executive or administrative order or act, prohibition or restriction by domestic or foreign laws, regulations or policies.

(b) If the Covenantor is unable to wholly or in part carry out its obligations under clause 3(a) due to a Force Majeure Event, the Covenantor must comply with clause 3(c), whereupon such obligation shall be suspended so far as it is affected by such intervening event.

(c) The Covenantor must:

(i) notify the Covenantee as soon as possible of full particulars of the event or circumstance of the Force Majeure Event including:

(A) the date of commencement of the event or circumstance of the Force Majeure Event and an estimate of the period of time required to enable it to resume full performance of its obligations under clause 3(a);

(B) where possible, the means proposed to be adopted to remedy or abate the Force Majeure Event; and

(C) the nature and extent of those obligations affected by, or other consequences of the Force Majeure Event;

(ii) use all reasonable diligence and employ all reasonable means to remedy, mitigate or abate the Force Majeure Event as expeditiously as possible, including the expenditure of reasonable sums of money and the application of technology known to prudent and competent persons;

(iii) resume performance as soon as possible after termination of the Force Majeure Event or after the Force Majeure Event has abated to an extent which permits resumption of performance;

(iv) notify the Covenantee when the Force Majeure Event has terminated or abated to an extent that permits resumption of performance to occur; and

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(v) notify the Covenantee when resumption of performance has occurred.

(d) Notwithstanding the existence of a Force Majeure Event, each Party must continue to perform its other obligations under this Deed, not being obligations suspended under clause 8(b).

9. Disputes

(a) If a dispute arises between the Covenantor and the Covenantee as to any matter arising out of this Deed (the Dispute), the party claiming the Dispute will notify the other party in writing of the Dispute.

(b) Within 10 days of written notice of the Dispute being given, the parties will meet and attempt to resolve the Dispute.

(c) If the parties are not able to resolve the Dispute within 10 days of their meeting:

(i) the party claiming the Dispute will refer the Dispute to a mediator;

(ii) if the parties cannot agree to the identity of a mediator, then a mediator will be appointed by the President of the Law Society of the Northern Territory;

(iii) the parties will make available to the mediator all materials requested by it and will provide it with all other materials which are relevant to the determination;

(iv) the role of the mediator is to assist the parties to negotiate to resolve the Dispute. The mediator may not make a binding decision on the parties unless the parties agree in writing;

(v) the parties will bear the costs of the mediator equally.

(d) Where a Dispute arises, each party must continue to perform its obligations under this Deed.

(e) Either party may only commence legal proceedings after such mediation has taken place and no resolution of the Dispute been effected.

(f) This clause 9 does not apply where either party makes application for urgent interlocutory relief.

10. General

(a) Notwithstanding the termination or sooner expiry of this Deed, all provisions of this Deed which are capable of taking effect after termination or sooner expiry shall continue to remain in full force and effect.

(b) This Deed is governed by and construed in accordance with the laws of the Northern Territory of Australia and the Courts of the Northern Territory at Alice Springs have jurisdiction to entertain any action in respect of, or arising out of, this Deed.

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(c) The parties warrant that they are each properly established and constituted at law, and have power and authority to enter into this Deed.

(d) This Deed constitutes the entire agreement between the parties, and overrules any previous agreement or understandings between the parties in relation to its subject matter.

(e) This Deed cannot be amended or added to unless the amendment or addition is in writing and signed by all of the parties.

(f) If a court determines that a word, phrase, sentence, paragraph or provision in this arrangement is unenforceable, illegal or void then it will be severed and the other provisions of this arrangement will remain operative.

(g) This Deed and the rights and obligations set out in this Deed will not be abrogated, prejudiced or affected by the granting of time, credit or any indulgence or concession by one party to another party or to any other person whomsoever or by any compounding, compromise, release, abandonment, waiver, variation, relinquishment or renewal of any rights of a party or by any omission or neglect or any other dealing, matter or thing which, but for this clause could or might operate to abrogate, prejudice or affect the rights of a party or obligations of a party.

(h) Waiver of any provision of or right under this Deed must be in writing signed by the party entitled to the benefit of that provision or right and is effective only to the extent set out in any written waiver.

(i) The parties will each pay their own costs of and incidental to the negotiations for and the preparation and execution of this Deed.

(j) This Deed may be signed in any number of counterparts and all such counterparts when taken together constitute one instrument.

(k) Each party will promptly do and perform all acts and execute and deliver all documents (in a form and context reasonably satisfactory to that party) required by law or reasonably requested by the other party to give effect to this Deed.

(l) The parties will comply with all laws in force in the Northern Territory from time to time.

EXECUTED AS AN DEED

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EXECUTED by the ALICE SPRINGS ) TOWN COUNCIL by affixing its common ) seal pursuant to section 26(l)(c) of the ) Local Government Act\n the presence of: )

Mayor Damien Ryan CEO Rex Mooney

EXECUTED by 19 PARSONS STREET )PTY LTD in accordance with the Corporations) Act )

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\ - AALICE SPRINGS TOWN COUNCIL

Alice SpringsCNR TODD STREET AND GREGORY TERRACE PHONE: (08) 89 500 500 FAX: (08) 89 526 685

LAND SUBJECT TO COVENANT DRAWING NUMBER: DEED 1 AMENDMENT:

DESIGNED: C TURNER SCALE: NTS

REV DESCRIPTION DATE INITIALS SURVEYED: NTG

DRAWN: M RAYMOND SHEET: 01 OF 01