DOWSE PROJECTS

Civium Communities is excited to issue this proposal for the 82 Wentworth Avenue Development

Terms & Conditions

Warranties and Acknowledgements

  1. The Developer warrants that:
    1. they are, at the date of this Agreement, the registered proprietor of the land located at item 1 with the folio identifier(s) listed at item 2;
    2. they will provide the Agent with accurate and timely information and keep the Agent apprised of any changes to any information required by Part 10 of the Act and sections 25 and 26 of the CLM Act;
    3. as at the date of this Agreement the details at items 3 to 7 are correct; and
    4. upon registration of the Scheme they will:
      1. appoint themselves the Secretary of the owners corporation or association (whichever is applicable); and
      2. authorise the Agent on their behalf to prepare and keep, until a Strata Managing Agent or Community Managing Agent (whichever is applicable) is appointed or until otherwise required by the Developer in its role of Secretary, the relevant documents under Part 10 Division 1 of the Act or sections 25 and 26 of the CLM Act and any management statement (whichever is applicable); and
  • authorise the Agent to on their behalf to provide notices pursuant to Part 10 Division 2 of the Act or section 26 of the CLM Act and any management statement (whichever is applicable).
  1. The Agent warrants that they:
    1. hold professional indemnity insurance to the amount specified at item 13; and
    2. hold a current Strata Managing Agent’s license under the Property, Stock and Business Agents Act 2002 (NSW); and
    3. they have the required knowledge, skills and resources to provide the Services and the Additional Services (if required).
  2. The parties acknowledge that:
    1. the Services and any Additional Services provided by the Agent to the Developer are provided as an external contractor to the Developer and the Developer remains responsible for the accuracy of the information provided to:
      1. the Scheme when registered and
      2. any potential purchaser of any lot in the Scheme once the Scheme is registered; and
    2. that the Agent is not providing the Services or Additional Services as either the strata managing agent or community managing agent for the Scheme under the Property, Stock and Business Agents Act 2002.

Appointment of the Agent

  1. The Developer appoints the Agent to provide on its behalf the Services and any Additional Services (if requested) with effect from the Commencement Date specified in item 8.
  2. At any time during the term of the Agreement the parties may, by written agreement, add to or delete items from the Additional Services.
  3. The Agent’s obligation to provide Services and Additional Services is as follows:
    1. The Agent will perform the services specified as Services;
    2. The Agent may perform any of the services specified as Additional Services if the Developer requests it and the Agent agrees to do so. The Agent, acting reasonably, can exercise their discretion to refuse to provide an Additional Service and is granted the right of first refusal to provide any Additional Service.
    3. Unless required by law, the Agent is not required to provide a Service or Additional Service if:
      1. The Developer is in arrears of any payment to the Agent under this Agreement;
      2. The Developer has failed to provide further instructions or information or other assistance as reasonably requested by the Agent in relation to the action required;
  • The action required is of a specialist or technical nature and is outside the Agent’s area of expertise; or
  1. The action required would be in breach of the law, infringe a third parties rights or create a hazard to the safety of any person or property.

Remuneration & Reimbursement                               

  1. The Agent is entitled to be paid a fee for carrying out the Services nominated in Schedule A in the amount set out in item 9 and as specified in item 10.
  2. The Agent is also entitled to be paid a separate fee for the Agent carrying out any Additional Services nominated in Schedule B to this Agreement at the rates set out in item 11 and as specified in item 12.
  3. The Agent is entitled to be paid within 14 days of rendering an invoice for services provided.
  4. The Agent’s fees for carrying out the Services may be increased during the term of the Agreement if the proposed number of lots in the Scheme specified in item 5 changes. Any such increase will be in proportion to the percentage by which the actual number of lots in the Scheme bears to the number of lots specified at item 5. For clarity, if the number against item 5 is 20 and the actual amount of lots in the Scheme is 25, the Services Fee at item 9 may, at the election of the Agent, be increased by 25%.
  5. Should there be more than one person listed at item B of this Agreement as the Developer, each person is jointly and severally liable to pay the Agent’s fees in accordance with this Agreement.

GST

  1. Unless otherwise indicated in this Agreement, any fees or other amounts payable under this Agreement are exclusive of GST. If a party to this Agreement makes a taxable supply for the purposes of the A New Tax System (Goods and Services Tax) Act 1999, the party receiving the supply must in addition to the consideration payable for the supply, at the time of payment of such consideration, pay an amount equal to the GST payable by the supplier in respect of the supply, subject to the receipt of a valid tax invoice.

Rebates, Commissions, Referral Fees or Discounts

  1. The Agent has not entered into any business arrangement with a service provider where the Agent will earn a commission, rebate, referral fee or discount.

Indemnity

  1. To the extent permitted by law, the Developer releases the Agent from all liability for any loss, damage, liability, claim or expense incurred by the Developer with respect to or arising from the performance or non-performance of the Agent’s services under this Agreement to the extent that such loss, liability, claim or expense:
    1. does not arise from the negligence of the Agent in the provision by the Agent of services under this Agreement;
    2. involves the supply of goods or services by a third party, whether or not that third party was engaged by the Agent;
    3. was caused by the Developer’s own action or inaction, including but not limited to a failure to follow advice provided by the Agent or a third party or a failure to make funds available to the Agent for it to carry out any instructions;
    4. results from the Agent’s reliance on instructions or information from the Developer (or its representatives) that was false, misleading or incomplete;
    5. arises from a defect in or a danger or risk relating to the Developer’s property;
    6. represents loss of profits or other consequential loss;
    7. in any 12 month period exceeds the amount of professional indemnity insurance cover available to the Agent in respect of such loss.
  2. The Developer indemnifies, and keeps indemnified, the Agent from any loss, damage, liability, claim or expense incurred by the Agent:
    1. in relation to any act or omission by the Agent in relation to its services under this Agreement and any prior agreement with the Developer; and
    2. arising from the Developer’s breach of this Agreement or negligence.

Work Health & Safety

  1. The parties mutually agree that they will each comply with their respective obligations under the Work Health & Safety Act 2001 (NSW) (the “WHS Act”) and the Work Health & Safety Regulations 2011 (NSW) (the “WHS Regulation”).
  2. Subject to the provisions of the WHS Act and the WHS Regulation, the appointment of the Agent under this Agreement does not constitute the appointment of the Agent as a principal contractor within the meaning of regulation 293 of the WHS Regulation.

Termination of Agreement

  1. The Agreement expires at the beginning of the first annual general meeting of the Scheme unless the Developer, at its election, provides five days’ written notice that the Agreement will expire once the meeting notices for the first general meeting of the Scheme have been issued.
  2. The Agreement may be terminated at any time with the mutual consent of the parties.
  3. Despite clause 19, either party may terminate this Agreement, by written notice to the other party, without affecting any of its other rights, as follows:
    1. by the Developer if:
      1. the Agent is in breach of any material obligation under this Agreement and fails to remedy that breach within 21 days after the service of a notice by the Developer identifying and requiring rectification of the breach; or
      2. the Agent is an individual and they are declared bankrupt; or
  • the Agent is a company and the Agent is wound up or placed into administration or liquidation; or
  1. the Agent ceases to hold a strata managing agent’s licence, or
  1. by the Agent if:
    1. the Developer is in breach of any material obligation under this Agreement and fails to remedy that breach within 21 days after the service of a notice by the Agent identifying and requiring rectification of the breach; or
    2. the Developer is an individual and they are declared bankrupt; or
  • the Developer is a company and it is wound up or placed into administration or liquidation; or
  1. should there be more than one person listed at item B of this Agreement as the Developer, if any one of those persons is declared bankrupt or is wound up or placed into liquidation.
  1. Within 21 days of the Agreement expiring or being terminated all accounts due between the parties must be reconciled and adjusted.

Transfer of Agreement

  1. The Agent cannot transfer the Agreement or any functions delegated under the Agreement without approval of the transfer by the Developer.
  2. The Developer agrees that it will not unreasonably withhold its consent if the Agent satisfies it that the proposed transferee is a fit and proper person and has the qualifications, competence and experience to perform the Services and Additional Services at the Services Fee at item 9 and for the fees as specified in item 11 for the Additional Services. The Developer must be also be satisfied if the proposed transferee is a company, the related entities of that corporation as defined by section 9 of the Corporations Act 2001 (Cth) or if the proposed transferee is a partnership, the partners and principal staff of that partnership, are fit and proper persons with the necessary qualifications, competence and experience.
  3. If the Agreement is transferred to another agent, the term of appointment of the person to whom the Agreement or function is transferred ends on the same day as the term of the person by whom the Agreement or functions were transferred.

Record Keeping

  1. The Agent may, while it retains records for the Developer, either store them digitally or in paper form.
  2. When the Agreement expires or in the event of termination of the Agreement, the Agent must provide all books, records, accounts, funds and property of the Developer and the Scheme (if applicable) in the Agent’s possession to the Developer, or the person nominated by the Developer, within seven business days.

Confidentiality

  1. During the course of the Agreement the Developer may provide Confidential Information to the Agent.
  2. The Agent agrees:
    1. subject to any requirement to provide information at law to treat the Confidential Information as subject to a duty of confidence and to only use it for the purpose of providing the Services or Additional Services required by this Agreement; and
    2. to return to the Developer all Confidential Information and any copies thereof upon their request; and
    3. that the Confidential information remains the property of the Developer.

Service of Notices

  1. Any notice to be served under the Agreement:
    1. must be served either personally, by post, facsimile, or email using the details provided on the front page of this Agreement, or any other notice details subsequently notified from time to time by a party in writing to the other party; and
    2. is served the first time it is served if it is served in more than one place.

Entire Agreement

  1. This Agreement represents the entire agreement between the parties other than any statutory provisions which impose obligations or duties on either of the parties.
  2. This Agreement supersedes any previous negotiations, understandings, representations and or agreements unless they are expressly reproduced in this document.

Severance

  1. In the event that any term or condition in this Agreement is held by a court or tribunal to be invalid or unenforceable for any reason whatsoever, that term or condition shall be read down to the extent necessary to give efficacy to this Agreement or otherwise shall be severed and the remainder of the Agreement shall continue to have full effect and bind the parties accordingly.

Governing Law

  1. This Agreement is governed by the laws of New South Wales and the parties subject themselves to the exclusive jurisdiction of the courts and tribunals of New South Wales.

Definitions                                                       

  1. In this Agreement these works have the following meaning:
    1. Act” means the Strata Schemes Management Act 2015 (NSW) or the Community Lands Management Act 1989 (NSW) whichever is applicable to the Scheme.
    2. Additional Services” means the services set out at Schedule B to this Agreement.
    3. Agent” means the person listed at C on the first page of this Agreement and includes their employees and contractors.
    4. Agreement” means this agreement.
    5. Community Managing Agent” means a community, precinct or neighbourhood managing agent appointed under the CLM Act.
    6. Confidential Information” means all personal and corporate information acquired by the Agent from the Developer relating to the Agreement. This includes all financial, management, and marketing information, all research, plans or other documentation, and all other information imparted in discussions or obtained through inspections or by any other method from the Developer or their advisors, consultants, employers of contractors of the Developer. Information already in the public domain or that is required by the Act or the CLM Act to be provided to the Scheme or that is proved to be within the knowledge of the Agent is not confidential for the purposes of this Agreement.
    7. Developer” means jointly and severally the persons listed at B on the first page of this Agreement.
    8. Item” or “item” means the items listed in the first two pages of this Agreement.
    9. Schedule” means a schedule to this Agreement.
    10. Scheme” means either the strata scheme registered under the Strata Schemes Development Act 2015 (NSW) or the association registered under the Community Lands Development Act 1989 (NSW) in respect of the land located at item 1 and with the folio identifiers specified at item 2 (whichever is applicable).
    11. Services” means the services and functions set out at Schedule A to this Agreement.
    12. Strata Managing Agent” is a strata managing agent appointed by and owners corporation pursuant to section 49 of the Act.
  2. Unless otherwise specified in this Agreement, words and expressions defined in the Act, or if the Scheme is subject to the CLM Act the CLM Act, shall have the same meanings when used in this Agreement.
  3. A reference to any legislation includes a reference to any regulation or delegated legislation under that legislation and includes a reference to any amending or repealing legislation.
  4. An obligation on the part of two or more parties binds them jointly and each of them severally.

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