General Funding Agreement

General Funding Agreement

Details

Contract ID:
Parties
Sustainability Victoria / Sustainability Victoria (ABN 62 019 854 067)
Level 28, 50 Lonsdale Street
Melbourne, Victoria, 3000
Tel: (03) 8626 8700
Contracting Party / Name of Legal Entity:Please insert
ABN:Please insert
Trading name: Please insert
Address: Please insert
Postal Address: (if different to the above): Please insert
Tel: Please insert
Contract Title / Smarter Resources Smarter Business - Energy Efficient Office Buildings (SRSB EEOB)Funding Agreement
Term / Commencement Date: Please insert
Expiry Date: Please insert
Permitted Extension Period / 20 Business Days
The Permitted Extension Period applies at Sustainability Victoria’s absolute discretion in accordance with clause 6(d).
Sustainability Victoria Representative / Name: Jamie Wallis
Address (if different to that of Sustainability Victoria): As per above
Tel: (03) 8626 8816
Email:
Contracting Party Representative / Name: Please insert
Address (if different to that of the Contracting Party): Please insert
Tel: Please insert
Fax: Please insert
Email: Please insert
Project / The Smarter Resources Smarter Business - Energy Efficient Office Buildings program (the Program) provides funding and support for building owners to carry out the following activities (Program Activities):
Stage 1: Opportunities Analysis – a report on the current energy efficiency of building systems such as lighting, lifts, and heating, ventilation and cooling (HVAC) systems, and identifies opportunities for improvement.
Stage 2: Building Tuning - simple, cost-effective energy efficiency improvements through the tuning of building services and operations. This will identify and correct building system problems to maintain the optimal performance of the building.
Stage 3: Monitoring - metering and monitoring to enable an evaluation of building performance for the 12 month period following building tuning, in order to measure the effectiveness and cost savings achieved through the building tuning upgrades.
Further background details on the program can be found in Appendix A.
Eligible building owners or agents (Eligible Building Owners) are able to receive matched funding for eligible Program Activities which are delivered in accordance with the Building Improvement Scope of Works (Appendix B). All grants require a minimum co-contribution from the Eligible Building Owner of 50% of total eligible project expenditure (i.e. $1 for every $1 granted).
ThisContractprovides the Contracting Partymatched funding for the services provided in Appendix C (insert Service Provider’s quote).
Changes to insurance requirements / Professional indemnity insurance is not required. Clause 12(a)(iii) is deleted.
Clause / Type of insurance / Insurer / Amount / Excess/ deductible / Policy no / Expiry date
12(a)(ii) / third party public liability
Cap / $To be completed

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Milestone Payment Schedule

Milestone / Advance Payment (Yes/No) / Description of Work / Date for completion / Required Evidence (if any) / Contracting Party’s Contribution(s) (if any) / Milestone Amount
1 / No / Contract signed between Contracting Party and Service Provider / insert / Signed agreement / NA / $0
2 / No / Stage 1 Deliverables - Opportunities Assessment / insert / Stage 1 Opportunities Report
Stage 1 invoice / $ insert / $ insert
3 / No / Stage 2 Deliverables - Tuning / insert / Stage 2 Building Tuning Report
Stage 2 invoice / Up to $ insert / Up to $ insert
4 / No / Stage 3 – Interim Report / insert / Stage 3 Interim Report / $ insert / $ insert
No / Stage 3 Deliverables - Monitoring / insert / Stage 3 Monitoring Report
Stage 3 invoice / $ insert / $ insert
Total (excluding GST) / Up to $ insert / Up to $ insert
GST / Up to $ insert / Up to $ insert
Total (including GST) / Up to $ insert / Up to $ insert

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DATED: ______

Signed for and on behalf of Sustainability Victoria (ABN 62 019 854 067)by its duly authorised representatives
…………………………………………………………………
[Name]
[Position – Department/Area]
Sustainability Victoria
…………………………………………………………………
Derek Jones
Chief Financial Officer
Sustainability Victoria / )
)
)
)

DATED: ______

SIGNED by [INSERT NAME OF AUTHORISED REPRESENTATIVE] as authorised representative for [INSERT NAME OF CONTRACTING PARTY]in the presence of:
......
Signature of witness
......
Name of witness (block letters) / )
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By executing this agreement the signatory warrants that the signatory is duly authorised to execute this agreement on behalf of [INSERT NAME OF CONTRACTING PARTY]

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Schedule — Amendments to Terms and Conditions

Not Applicable

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General Funding Agreement

Appendix A — Further details concerning the Program

Purpose/Objective

The purpose of this Contract is to providefunding to the building owner, or agent, (Eligible Building Owner) for work delivered under the SRSB EEOB program (the Program).

Under the program, Eligible Building Owners are able to receive matched funding ($1 grant for $2 spent) for eligible building improvements which are delivered in accordance with the Building Improvement Scope of Works (Appendix B).

Deliverables

The general SRSB EEOB program deliverables prescribed by Sustainability Victoriaare specifiedin Appendix B – Building Improvement Scope of Works.

The specific works for which funding will be provided under this Contract are specifiedin Appendix C.

Task List

The Contracting Party(an Eligible Building Owner) must complete the following tasks in order to meet the milestones specified in the Contract:

1. Upon executionof this Contract, execute a contract with the Service Provider to deliver the agreed Program Activities (Appendix C).
2. Provide necessary information and access to the Service Provider to conduct the necessary Program Activities.
3. Provide adviceto Sustainability Victoria regarding the progress of Program Activities and advise Sustainability Victoria of any potential delays or issues withthe Project.
4. Promptly advise Sustainability Victoria ofany potential disputes or issues with the Service Provider.
5. Forward the required evidence and deliverables to Sustainability Victoria.

Grants Process

Funding Application /

• Building Owner (or agent) will submit an application to the SRSB EEOB Program. If approved, the building owner will become an ‘Eligible Building Owner.’

Funding Agreement /

• The Eligible Building Owner will request a minimum of two (2) quotations from Service Providers fromthe Panel.
• The Service Provider quotations will be submitted to SV and the Eligible Building Owner for approval. Stage 2 is to be quoted as a capped price. The Eligible Building Owner should indicate to SV its preferred Service Provider.
• If the quote is approved, SV will issue a Funding Agreement to be signed by the Eligible Building Owner.
• The Eligible Building Owner will appoint the agreed Service Provider to carry out the work, and enter into a contract with the Service Provider to undertake the Program Activities.
• After the contract between the Eligible Building Owner and the Service Provider has been executed the project can commence.

Stage 1:
Opportunities Analysis /

• The Service Provider will complete an energy efficiency Opportunities Analysis and submit the report to the Eligible Building Owner, who then submits the report to SV for approval.
• First milestone payment made by SV to the Eligible Building Owner.
• Following delivery of the Opportunities Analysis (Stage 1), a list of initiatives will be recommended. The Service Provider will submit an exact costing for Stage 2 to SV for review.

Stage 2: Building Tuning /

• If satisfactory, SV will approve Funding for Stages 2 and 3, and the Building Owner can then proceed with the building tuning works and monitoring.
• The Eligible Building Owner will arrange for building tuning activities to be undertaken by the Service Provider as per the Opportunities Analysis recommendations, and quoted price.
• At the completion of Stage 2 the Service Provider will issue the Eligible Building Owner relevant reports to be submitted to SV.
• Second milestone payment made by SV to the Eligible Building Owner.

Stage 3: Monitoring /

• The Eligible Building Owner will maintain energy billing and building performance data for a 12 month period following tuning activities.
• The Eligible Building Owner will submit building performance data to SV.
• Final milestone payment made by SV to the Eligible Building Owner.
• Project Completion. The Eligible Building Owner may consider longer term upgrades through third party incentive programs.

Timeline

Eligible Building Owners and Service Providers are expected to deliver within the following timeframes:

-Quotation for work provided:1-2 weeks

-Contract negotiation (Service Provider and building owner) :2-4 weeks

-Completion of Stage 1:4-6 weeks

-Completion of Stage 2:4-6 weeks

-Completion of Stage 3:52-54 weeks

Out of Scope

The following items will not be funded under this contract:

-The funding, advice and support for ineligible Program Activities

-Providing advice on the selection of Service Providers

-Managing contracts with Service Providers

-Managing the performance of Service Providers

Appendix B — Building Improvement Scope of Work

Appendix C — Further details concerning Project

- [attach Service Provider’s quotation]

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General Funding Agreement

Terms and Conditions

1COMPLIANCE WITH LEGISLATION

(a)The Contracting Party:

(i)acknowledges and agrees that Sustainability Victoria has certain statutory rights and obligations, including under the Sustainability Victoria Act 2005 (Vic), the Financial Management Act 1994 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic); and

(ii)must, subject to clause 1(a)(i), comply with any reasonable directions issued and / or take any actions reasonably directed by Sustainability Victoria to enable Sustainability Victoria to exercise such rights or comply with such obligations.

2INTERPRETATION

(a)A reference to a clause, schedule or appendix is a reference to a clause, schedule or appendix in these Terms and Conditions unless otherwise stated.

(b)No rule of contract interpretation is to be applied to the disadvantage of Sustainability Victoria on the basis that it prepared or put forward any document comprising part of this Contract.

(c)The references used in this Contract are to be interpreted as follows except where the context otherwise requires:

(i)a reference to this Contract, another instrument, or document includes any variation or replacement;

(ii)a reference to any statute, code, ordinance or other law includes regulations and other instruments under it and amendments, consolidations, replacements, or other instruments overruling that law;

(iii)a reference to an accounting term is to be interpreted in accordance with accounting standards under the Corporations Act 2001 (Cth) and, if not inconsistent with those accounting standards, generally accepted principles and practices in Australia consistently applied by a body corporate or as between bodies corporate over time;

(iv)a reference to a person will be taken to include any natural or legal person, the person’s executors, administrators, successors, substitutes, and permitted assigns;

(v)a reference to a person which has ceased to exist or has been reconstituted, amalgamated or merged, or other functions of which have become exercisable by any other person or body in its place, shall be taken to refer to the person or body established or constituted in its place by which its said functions have become exercisable;

(vi)where a reference occurs to the doing of anything by a Party including giving any notice, consent, direction, or waiver, this is to be construed as to be performed by the Representative of that Party unless specifically stated otherwise;

(vii)a reference to any direction, approval, or requirement given by Sustainability Victoria is not to be construed as Sustainability Victoria participating in the supervision or control of the Project and does not infer any release of the Contracting Party or its obligations to appropriately carry out supervision and control function;

(viii)a reference to where a Party is required to act reasonably in the performance of this Contract that shall be read as a requirement to act as would a Party in the position of Sustainability Victoria that is acting reasonably in its own best interests; and

(ix)a reference to a group of persons is a reference to all of them collectively, any two or more of them collectively, and to each of them individually.

(d)In reading this Contract except where the context otherwise requires:

(i)the headings in this Contract are for convenience only and do not affect the interpretation of this Contract;

(ii)the singular includes the plural and vice versa;

(iii)the word ‘including’ means ‘including without limitation’;

(iv)a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;

(v)a month is to be interpreted as a calendar month;

(vi)if any time limit under this Contract falls on a non-Business Day then that time limit shall be deemed to have expired on the next Business Day;

(vii)a gender includes every other gender; and

(viii)where a word or phrase is given a defined meaning in this Contract, any other part of speech or other grammatical form in respect of such word or phrase shall have a corresponding meaning.

(e)Where a clause requires a Party to form an opinion, that opinion is to be formed reasonably and based on available evidence.

(f)If there is an inconsistency between:

(i)an Amendment to this Contract;

(ii)a Schedule to this Contract; or

(iii)the Terms and Conditions,

then each will take precedence in the order set out in clauses 2(f)(i) to 2(f)(iii).

3DEFINITION

The definitions in this clause 3 apply to this Contract:

Advance Payment means a Milestone Amount where the 'Advance Payment' column of the Milestone Payment schedule has been marked 'Yes'.

Approved Auditor means a person who is:

(a)registered as a company auditor in accordance with the Corporations Act 2001 (Cth) or a member of the Institute of Chartered Accountants in Australia, or CPA Australia or the National Institute of Accountants; and

(b)not a principal, member, shareholder, officer, agent, subcontractor or employee of the Contracting Party.

Asset means any item of tangible property, purchased, leased, created or otherwise brought into existence either wholly or in part with use of the Milestone Amounts and/or Sustainability Victoria In-Kind Contributions, which has a value of over $5,000 inclusive of GST;

Australian Auditing Standards means the Australian Auditing Standards developed and published by the Commonwealth Government Auditing and Assurance Standards Board as amended from time to time.

Background Intellectual Property means Intellectual Property that is not Project Intellectual Property.

Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.

Change of Control means for a corporation or company, a change in:

(c)Control of the composition of the board of directors of the corporation;

(d)Control of more than half the voting rights attaching to shares in the corporation; or

(e)Control of more than half the issued shares of the corporation (not counting any share which carries no right to participate beyond a specified amount in the distribution of either profit or capital), and

that, in the opinion of Sustainability Victoria, has a potentially detrimental impact on the ability of the Contracting Party to perform the Contract.

Cap means the cap on Sustainability Victoria’s indemnity as defined in the Details.

Commencement Date is defined in the Details.

Confidential Information means all confidential, non-public or proprietary information regardless of how the information is stored or delivered, exchanged between the Parties before, on or after the date of this Contract relating to the business, technology or other affairs of a Party but, for the removal of doubt, does not include the existence of the Project or the existence of this Contract or the identity of the Parties.

Conflict of Interest means any matter, circumstance, interest or activity affecting the Contracting Party (including the Related Persons of the Contracting Party) which may or may appear to impair the ability of the Contracting Party to provide the Project diligently and independently.

Contract means the Terms and Conditions, any Schedule or Appendix and the Details.

Contracting Party means the Party identified as the Contracting Party in the Details.

Contracting Party Contribution(s) means the contribution(s) (if any) set out in the column headed Contracting Party Contribution(s) in the Details.

Contracting Party Group means the Contracting Party, the Contracting Party’s Representative, the Contracting Party’s Subcontractors, and the Contracting Party’s employees, officers, agents and contractors.

Control means a power or control that is direct or indirect or that is, or can be, exercised as a result of, by means of or by the revocation or breach of a trust, an agreement, a practice, or any combination of them, whether or not they are enforceable. It does not matter whether the power or control is express or implied, formal or informal, exercisable alone or jointly with someone else.

Details means the section of this Contract headed “Details”.

Dispute Notice means the notice defined in clause 15(c)(i).

Environmental Laws means all laws (including common law, Acts of Parliament, regulations, policies and by-laws and all licenses, permits and consents or approvals made pursuant to such laws) which regulate the environment including laws relating to land use planning, pollution of air or water, soil or groundwater contamination, chemicals, waste, the use, handling, storage or transport of dangerous goods or substances, greenhouse gas emissions, carbon trading, or any other aspect of protection of the environment or person or property and including the Environment Protection Act 1970 (Vic).

Expiration Date means the later of:

(f)the Expiry Date specified as such under “Term” in the Details; and

(g)the last day of any Permitted Extension Period notified in accordance with clause 6(d).

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Indemnified Parties means the indemnified persons defined in clause 13(a).

Information and Equipment includes all information and equipment including all business, financial, operational and technical information, tools, computer hardware, office equipment, documents, models, designs, reports, plans, charts, drawings, calculations, tables, specifications, schedules, data and know-how and any other property, item or thing (stored by any means) of Sustainability Victoria which is made available to the Contracting Party for the provision of the Project.

Insolvency Event includes any of the following events affecting a Party:

(h)that Party disposes of the whole or any part of its assets, operations or business other than in the normal course of business;

(i)any step is taken to enter into any arrangement between that Party and its creditors;

(j)that Party ceases to be able to pay its debts as they become due;

(k)that Party ceases to carry on business;

(l)any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of that Party’s assets or business;

(m)any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or controller or other like person of the whole or any part of that Party’s assets or business;