Template Deed of Agreement
for sewer pump outs
AGREEMENT NAME
DEED OF AGREEMENT
NO.XX/YR
Townsville City Council
Party Name
Party Name
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
CONTENTS
Parties
Recitals
1.
Definitions and Interpretation
1.1
Definitions
1.2
Interpretation
1.3
Name
1.4
Commencement
1.5
Termination
2.
Entire Agreement
3.
Relationship of the Parties
4.
Obligation of the Parties
4.1
Developer Obligations
4.2
Council Obligations
5.
Insurances
6.
GST
7.
Governing Law
8.
Severance
9.
Waiver
10.
Legal Tender
11.
Binding
12.
Costs and Outlays
13.
Facsimile and Counterparts
14.
Force Majeure
15.
Dispute Resolution
16.
Representations, Warranties and Indemnities
17.
Variation
18.
Time
19.
Fetter
20.
Notices
21.
Good Faith
22.
Laches and Delay
23.
Default
23.1
Default by Developer
23.2
Default by Council
Execution Page
Consent
Appendices and Schedules
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
PARTIES
.............................. Pty Ltd (Developer)
ABN .......
TOWNSVILLE CITY COUNCIL (Council)
ABN 44 741 992 072
103 Walker Street, Townsville Q 4810
RECITALS
A.
Name of developer is the developer of the land.
B.
This Agreement between Name of developer and council is entered into because incomplete or
noncommissioned trunk sewerage infrastructure definition and location of trunk infrastructure, eg. Electrical
works, pump station, rising main etc. is hindering the release of the plan of survey.
C.
This Agreement is intended to ensure the provision of a minimum standard of pump out service to remove
effluent inflow into the sewer from the contributing development whilst minimising risk to the community and
environment.
D.
Council agrees to facilitate the timely construction and commissioning of the facility to suit the developer's
program.
E.
Subject to the satisfaction of all other conditions and requirements contained in the Decision Notice, council
agrees and acknowledges that once this Agreement is entered into by the parties, condition number of the
Decision Notice will be deemed satisfied and council will release the plan of survey.
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
TERMS OF AGREEMENT
1
1.1
DEFINITIONS AND INTERPRETATION
Definitions where they appear in this document:
Act means the Sustainable Planning Act 2009.
Agreement means this Infrastructure Agreement
Commencement Date means the date when the last party to sign this Agreement signs this Agreement.
Creditable Infrastructure Works means the component of the Infrastructure Works for which Developer is entitled
to obtain Infrastructure Credits in accordance with City Plan Policy 3 – Section 2.3A being the works identified in
Conditions of the Development Permit.
Development Application means the Development Application dated.......... made by ........... to Council with respect
to a proposed reconfiguration of the Land in accordance with the Survey Plan.
Development Permit means the development permit for reconfiguration of the Land dated
under reference.............................. in response to the Development Application.
issued by Council
Easement A means the access easement shown in Schedule ........ which is to be registered over Proposed Lot
......................... on SP...............................
Force Majeure means an event beyond the reasonable control of either party or, as the case may be, which is
unavoidable notwithstanding the reasonable care of the party affected.
GST means the goods and services tax payable on taxable supplies in Australia.
Infrastructure Credits means the headworks credits applicable upon completion of the Creditable Infrastructure
Works in accordance with clause 6.1 of this Agreement.
Infrastructure Works means the works that Developer must undertake in and about the Land in accordance with
the Conditions of the Development Permit.
Land means the land located at .... currently described as Lot _ on RP .......... and Lot ....... on RP ......... which is to
reconfigured into Lot ...................... and new road on SP .................................
Material Change of Use means the application .......... dated ........... made to Council as assessment manager under
the Act and approved ........... for development permit material change of use ........... over Lot ...... of the Land.
Party means a party to this document and "parties" means more than one party.
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
Registered operator means an operator holding a registration certificate to remove regulated waste under the
Environmental Protection Act 1994.
Schedule means a Schedule to this document which forms part of this document and may be separately numbered
for identification.
Survey Plan means Survey Plan .......a copy of which is contained in Schedule 1.
1.2
Interpretation
In this document:
Headings are for reference only and do not affect interpretation;
Wherever words or terms are used and they are defined in the Act they shall have the same meaning provided that
the context thereof so permits.
This document is not intended to vary the Development Permit and wherever the terms of this document differ from
the requirements of the Development Permit the Development Permit shall prevail.
1.3
Name
This Agreement is referred to as <Name of Agreement>.
1.4
Commencement
This Agreement commences on the Commencement Date.
1.5
Termination
This Agreement shall expire: <date/works completed>
2
ENTIRE AGREEMENT
This Deed constitutes the entire agreement between the parties in connection with its subject matter and supersedes
all previous agreements or understandings between the parties in connection with its subject matter.
3
RELATIONSHIP OF THE PARTIES
The rights, duties and obligations and liabilities of the parties hereto shall be several and not joint nor collective, it
being the express purpose and intention of the parties that nothing in this agreement shall be construed as creating
a partnership of any kind joint association or a trust, each party hereby being individually responsible only for its
obligations as set out in this Agreement.
3.1.1
Save as is expressly provided to the contrary in this Deed, nothing in this Deed will constitute or
be construed to constitute any one party as the agent, employee or representative of the other
party.
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
4
4.1
OBLIGATIONS OF THE PARTIES
Developer obligations
4.1.1
The developer must provide:
(a)
confirmation of the date when the sewer pump station will be required
(b)
a statement from the electricity supplier confirming the provision of power supply,
attached at Schedule A. Commissioning of the pump station can only occur when the
station, associated infrastructure and compliance testing is complete. The station must
be provided with a continuous and reliable electrical supply for this to occur.
(c)
all weather access for heavy vehicles.
(d)
a bond, deposited with council, totaling 150% of the actual cost of 3 pump out services
per week over a 12 week period. The unencumbered bond will be held by council and
released when the pump station is fully commissioned, less any expenses incurred by
council to execute the provisions of the early bonding agreement.
4.1.2
The developer must accept any risks involved.
4.1.3
The developer must undertake the following works.
The developer shall engage a registered operator to undertake the removal of effluent from the
nominated location, which may be the zero maintenance hole, or as otherwise detailed at
Schedule 2. The system must be serviced 3 times weekly at a minimum. The service
provider/engineering consultant shall monitor the level of sewage in the (zero) maintenance hole
and increase pumping frequency as necessary to achieve maximum allowable level defined.
The developer shall engage a qualified engineering consultant to oversee and monitor the
removal process in addition to providing regular reports to council, detailing the frequency and
location of the disposal point. In the event of overflow or spill the engineering consultant shall
authorise the immediate clean up and disinfection, to the satisfaction of both council and the
Department of Environment and Heritage Protection (DEHP). Reporting of overflows or spills and
any other environmental harm or nuisance, including received complaints must be addressed
specify timeframe. All works must be undertaken in accordance with the Environmental Protection
Act.
Effluent disposal must be at licensed facilities, a sewage treatment plant or a disposal point
nominated by council.
The developer will develop a management plan for the disposal process, as detailed in Schedule
2.
The developer shall engage a suitably registered operator to flush the gravity sewerage system of
solids which may have accumulated in the system at the end of the pump out period, and at any
other time if and when directed by council.
4.2
Council obligations
4.2.1
Council will undertake the works as detailed in Schedule 3.
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
5
INSURANCES
The Developer must effect, and maintain throughout the duration of this agreement such insurance (including public
liability, Workers' Compensation, building and construction and property damage) as is reasonably necessary to
cover the activities being carried out in the performance of this agreement.
6
6.1
6.2
7
GST
Unless otherwise specified, any payment made by one Party to another under this document is exclusive of
GST and:(a)
the Party paying the GST must pay the GST at the time the taxable supply is made; and;
(b)
the Party making the Taxable Supply must give to the other party a tax invoice. If the Party does not
provide a tax invoice then the other Party is not required to make any payment of GST under this
clause until it has received a tax invoice.
When calculating the amount of:
(a)
any reimbursement from one Party to the other under this agreement;
(b)
any expense, loss or liability incurred or to be incurred by one Party under this agreement, that Party
may include GST payable on the Taxable Supply giving rise to that amount but must deduct the
amount of an input tax credit to which that Party is entitled.
GOVERNING LAW
This Agreement and any amendment to this Agreement shall be governed by the laws from time to time in force in
the State of Queensland.
8
SEVERANCE
If any term clause or provision of this Agreement shall be or shall be deemed to be judged invalid for any reason
whatsoever, such invalidity shall not affect the validity or operation of any other term clause or provision of this
Agreement except only so far as may be necessary to give effect to such invalidity. The parties will negotiate in good
faith to replace any such provision with a provision which is valid and enforceable and consistent with the intention of
this Deed, so far as is reasonably practicable.
9
WAIVER
No waiver by any party or a right or a default hereunder shall be deemed a waiver by such party of any subsequent
right or default whether of a like nature or otherwise.
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
10
LEGAL TENDER
Any sum of money to be paid or tendered by the parties hereto shall be validly and effectually paid or tendered if
such payment is given delivered or made in legal currency or by bank cheque or by the party's own cheque after
clearance. All references to currencies shall mean Australian currency unless otherwise specifically indicated.
11
BINDING
The obligations of the parties will not be affected by the subdivision or change in ownership of the Land or part of the
Land. In the event that all or part of the land is sold this Agreement shall continue to benefit and remain binding on
the Developer and will not benefit or bind it's successors in title in accordance with s663 of SPA.
11.1
The Developer agrees that it must fulfill its obligations to complete the Infrastructure Works under this
agreement notwithstanding that there is a change of ownership of the Land.
11.2
Council agrees that it must fulfill its obligations of this agreement notwithstanding that there has been a
change of ownership of the Land.
11.3
If the land is subdivided in a form for its ultimate intended use and sold the obligations of the Developer
under this Infrastructure Agreement will not bind the owner of the lots created and sold.
12
COSTS AND OUTLAYS
Each party will pay its own costs of and incidental to the preparation, execution and stamping (if relevant) of this
Agreement.
13
FACSIMILE AND COUNTERPARTS
This Agreement may be executed by exchange of facsimile or in any number of counterparts and in that event all
counterparts constitute one instrument.
14
FORCE MAJEURE
If either party is rendered unable wholly or in part by Force Majeure to observe or perform any of its obligations
under this Agreement (other than an obligation to pay money), upon such party giving notice and reasonably full
particulars of the Force Majeure to the other party promptly after the occurrence of the Force Majeure, the
obligations of the party giving notice, so far as they are affected by the Force Majeure, will be suspended and any
time limits or requirements imposed on the party, so far as they are affected by the Force Majeure, will be extended
for the continuance of the Force Majeure, provided always that as far as possible the cause of the Force Majeure will
be remedied with all reasonable dispatch by the party whose performance under this Agreement is adversely
affected.
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
15
DISPUTE RESOLUTION
If any dispute or difference shall arise between the parties concerning any term or condition of this Agreement then
that dispute shall be determined by an expert (the Expert) and the parties agree:(a)
the Expert shall be appropriately qualified to determine the dispute and shall be appointed by mutual
agreement between the parties or failing agreement in that respect then the Expert shall be such
person as the President for the time being of Queensland Law Society Incorporated shall appoint to
hear and determine the dispute;
(b)
the Expert shall act as an expert only and not as an arbitrator and the decision of the Expert shall be
final and binding on the parties;
(c)
the Expert shall be entitled to determine which party shall be responsible for payment of the Expert's
fees and expenses and if necessary the proportion that those fees are to be contributed to by the
parties;
(d)
each party will submit its argument in writing to the Expert within ten (10) business days of his or her
appointment;
(e)
each submission by a party shall be copied to the other party and any documents relied upon will be
attached;
(f)
the other party has a further ten (10) business days from the receipt of the submission in which to
submit any reply to the Expert and shall also provide a copy to the other party;
(g)
the parties shall provide promptly any other information required or requested by the Expert (with a
copy to the other party);
(h)
the Expert may carry out any inspection which he or she considers necessary and the parties will
allow the Expert access to their business premises and records as shall be reasonably necessary to
permit this to occur;
(i)
unless directed by the Expert there shall be no oral hearing;
(j)
the Expert shall be directed to inform the parties of his or her decision in writing within ten (10)
business days of the closing of submissions made to the Expert by the parties.
16
RERESENTATIONS WARRANTIES AND INDEMNITIES
The parties warrant that:(a)
they have power to enter into and perform its obligations under this Agreement, and
(b)
they have in full force and effect the authorisations necessary to enter into this Agreement and
perform obligations under it, and;
(c)
this Agreement and the transactions under it do not contravene their constituent documents (when
the party is a company) or any lawful requirement, regulation or official directive or cause a limitation
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
on its powers or the powers of its directors to be exceeded;
(d)
17
that the developer indemnifies Council against any and all actions, claims and any legal action
arising out of or in connection with the provision of the trunk infrastructure.
VARIATION
This Agreement may be varied only in writing signed by each party.
18
TIME
Except as otherwise provided in this Deed, time shall be deemed to be of the essence of this Deed.
19
FETTER
Nothing in this Agreement prevents Council or the Developer from exercising any rights they may have under the Act
in respect to any development approvals, conditions or infrastructure charges, issued or imposed in respect to the
Land including the right to negotiate development approval conditions and the right of appealing a decision to the
Planning and Environment Court.
20
20.1
NOTICES
All notices required or permitted in this document must be in writing and will be deemed to have been
received:(a)
in the case of posting within Australia, three (3) business days after posting with postage charges
prepaid;
(b)
in the case of delivery by hand, at the time of delivery;
(c)
in the case of facsimile, at the time and on the day of transmission provided that the sender receives
a written transmission confirmation report.
20.2
If the day on which a notice is received falls on a Saturday, Sunday or on a day which is a public holiday in
the intended place of receipt, then the notice shall be deemed to have been received on the day next
following which is not a Saturday, Sunday or public holiday.
20.3
Notices given pursuant to this document must be addressed to the parties at their addresses set out in this
document, their solicitors address or at such other address that a party may require after giving the other
party/s two (2) Business Days written notice of that change of address.
21
GOOD FAITH
The parties shall act in good faith to do all things necessary and reasonable to give effect to this Agreement.
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
22
LACHES AND DELAY
No laches or delay by either party at any time or times in enforcing any of their rights, powers and the like under this
Agreement prejudice or affect those rights or powers.
23
23.1
DEFAULT
Default by Developer
23.1.1
Notice of Default
In the event of non-compliance by the Developer with the Developer’s obligations in clause 4.1,
the Council may issue a written notice to the Developer to remedy the non-compliance.
23.1.2
Remedy of Default
The Developer must comply with a written notice issued pursuant to clause 24.1.1 within the time
period (as is reasonable) specified in the notice which must not be less than twenty-one (21)
days. Overflow/spill or environmental harm must be immediately rectified and is not subject to the
21 day default period.
23.1.3
Rights of the Council on Default
If the Developer fails to duly perform and fulfill its obligations under clause 4.1, the Council may
recover from the Developer as a liquidated debt the whole amount of the payment or
contributions (if any) not paid by the Developer.
23.1.4
24.2
The Council must apply any sum recovered or received by it pursuant to clause 24.1.3 as far as
the sum may extend to or towards all or any one or more of the following:
(a)
completion of the relevant item of work;
(b)
reduction or discharge of the relevant payments or contributions (if any) payable by the
Developer under this Infrastructure Agreement; and
(c)
reimbursing itself for any damages suffered by it.
Default by Council
In the event of non-compliance by the Council with the Council’s obligations in clause 4.2, the Developer may take
action to have the Council perform and fulfill its obligations.
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
EXECUTION PAGE
Executed as an Infrastructure Agreement by the parties
DEVELOPER
DATE: ___ / ____ / ____
Executed by:
.................................................. PTY LTD
ACN ..........................................
In accordance with section 127(1) of the Corporations Act 2001 (Cth):
________________________________________
______________________________
Sole Director/Director
Director/Secretary
________________________________________
______________________________
Full Name
Full Name
COUNCIL
DATE: ___ / ____ / ____
Signed by RAYMOND JOHN BURTON
The Chief Executive Officer for and on behalf of
Townsville City Council in presence of
..................................................................
Solicitor/Justice of the Peace
..................................................................
Commissioner for Declarations
..................................................................
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
CONSENT
Section 663(1) Sustainable Planning Act 2009 (Qld)
We insert names of owner(s) (Owners) are the registered owners of land located at insert address, described as
insert real property description (Land).
The Owners consent to the development obligations identified in the Infrastructure Agreement between Proponent
and Townsville City Council attaching to the Land.
The consent of the Owners is given in accordance with section 663(1) of the Sustainable Planning Act 2009 (Qld).
Dated this .................................. day of ......................... YEAR ...............
Executed By
................................................................................................................
................................................................................................................
................................................................................................................
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
SCHEDULE 1
Refer attached
A1
Plans: <document names and references>
A2
Statement from Ergon confirming electricity supply
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
SCHEDULE 2
Developer’s obligations
Management Plan for removal of effluent
Insert management plan addressing the following issues
The plan must detail:
The agreed removal method. Note that the disposal of all sewage must be as directed by Townsville Water
from time to time by a registered operator following agreed transport routes, for the duration of the
agreement.
Reporting procedures
Workplace Health and Safety Procedures
Projected sewage volumes.
Discharge point locality for dry weather
Discharge point locality for wet weather.
Assessment of overflow risk and risk mitigation plan (for example, wet weather events, pool drainage or
illegal connections).
Environmental safeguards
Odour Management.
Removal and monitoring procedure, including detail of maximum sewage levels and minimum pump out
frequencies
Emergency contact list.
Emergency procedures (such as the wastewater spillage or overflow procedure).
Decommissioning procedure.
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
Details of personnel
(a)
Name and address of registered operator undertaking removal of effluent:
License Number
(b)
Name and address of engineering consultant monitoring the removal process:
Qualification details:
Emergency Contact List
The Emergency contact list must include after-hours contact details and maximum response times.
Reporting requirements:
Reports prepared by a suitably qualified and licensed engineer are required to be provided to council which details
the level in the zero manholes at all inspections and the frequency and volume of pump outs. These reports are to be
submitted to council each week in electronic format, to email address of contract manager.
A report must also be submitted should any of the following occur, detailing the event and the response:
Odour complaint
Wastewater spillage or overflow
Wet weather event
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3
SCHEDULE 3
Council obligations
Timing for completion of the trunk infrastructure
Tasks required to be completed
Estimated date for completion
End date
REVISION DATE >> 7 MAY 2014
Townsville City Plan Attachment A SC6.4.7.3