Addendum for Additional Contributor

Transcription

1 HOMEOWNER AGREEMENT: FINANCIAL ASSISTANCE PACKAGE AGREEMENT NO. C«CLAIMNUMBER» STANDARD ADDENDUM FOR ADDITIONAL CONTRIBUTOR Addendum for Additional Contributor Her Majesty the Queen in right of New Zealand acting by and through the Ministry of Business, Innovation & Employment [Additional Contributor] [Homeowner] /

2 Date: «TodayDate» STANDARD ADDENDUM FOR ADDITIONAL CONTRIBUTOR PARTIES This Addendum is between: (1) Her Majesty the Queen in right of New Zealand acting by and through the Ministry of Business, Innovation & Employment (the Ministry) (2) [insert details of the additional contributor] (Specified Additional Contributor) (3) [insert name details of the Homeowners] [repeat as necessary] (each a Homeowner or together, you) BACKGROUND A B C D E F You own a property in respect of which you have made an eligible claim under the Weathertight Homes Resolution Services Act You have applied to the Ministry for financial assistance from the Ministry and the Council to pay for part of the cost of making repairs to your Property to remedy problems arising from it not being weathertight. You wish to enter (or have entered) into an agreement with the Ministry and the Council, under which the Ministry and Council wish to make you the payments described in paragraph B. The Specified Additional Contributor is an additional contributing party (as that term is defined in the Act) who is not the Council. The Specified Additional Contributor has agreed to make a contribution to you as part of the financial assistance measures provided for under the Act. This Addendum amends the Agreement so that it is suitable if the Specified Additional Contributor makes a contribution to you under the Agreement. The Ministry and the Council require you to sign this Addendum if you wish to receive a contribution from the Specified Additional Contributor under a contribution agreement (as contribution agreement is defined in the Act). Once this Addendum and the Agreement are signed, this Addendum will be incorporated into and form part of the Agreement. If you are already a party to a similar addendum with another additional contributing party (as that term is defined in the Act) that is not the Council, then the amendments recorded in this Addendum may already have been made to your Agreement. If the amendments already made are not identical to those contained in this Addendum, the Agreement (as it applies to the Specified Additional Contributor)

3 will be read as if the amendments contained in this Addendum applied, to the exclusion of any others. G At a later date you may enter into one or more other similar addendum with other additional contributing parties (that are not the Council). The Specified Additional Contributor is not required to sign any other similar addendum and is only a party to your Agreement for the purposes of its own contribution to you under the Agreement. THE PARTIES AGREE as follows: 1 DEFINITIONS AND CONSTRUCTION 1.1 Definitions Unless the context requires otherwise, any term used in this Addendum that is defined in the Agreement will have the meaning set out in the Agreement. In addition: Addendum means this addendum for additional contributor which is signed by the Ministry, the Specified Additional Contributor and you. Agreement means the Homeowner Agreement: Financial Assistance Package (Weathertight Homes Resolution) [to be entered into] between the Ministry, the Council and you[, dated on or about the date of this Addendum or insert date]. 1.2 Construction Unless this Addendum specifies otherwise, a reference in the Agreement to party is a reference to the Ministry, the Council or you, and parties is a reference to all of them. 2 INCORPORATION INTO AGREEMENT 2.1 The Specified Additional Contributor acknowledges that it has been provided with a copy of the Agreement (or proposed Agreement) prior to signing this Addendum. 2.2 Each party agrees that upon: the Ministry, the Council and you signing the Agreement; and the Ministry, you and the Specified Additional Contributor signing this completed Addendum, this Addendum will be incorporated into, and form part of, the Agreement, and the Specified Additional Contributor will be a party to the Agreement. (c) This Addendum is subject to and conditional upon the Ministry, the Council and you signing the Agreement.

4 2.3 Upon this Addendum becoming unconditional, the Specified Additional Contributor agrees to comply with the Additional Contributor s obligations under the Agreement as provided for in this Addendum. 3 AMENDMENT TO THE AGREEMENT The parties acknowledge and agree that the Agreement is amended as follows (where text in the pre-amended Agreement that has been deleted is shown as a strikethrough and text that has been added to the pre-amended Agreement is underlined): 3.1 In clause 1.1 of the Agreement, add a definition of AC Contribution Plan immediately before definition of Act, which reads as follows: AC Contribution Plan has the meaning set out in clause 2.1(g). 3.2 In clause 1.1 of the Agreement, add a definition of Additional Contributor immediately following the definition of Act, which reads as follows: Additional Contributor means any party specified as the additional contributor in a then current and binding addendum for additional contributor, which addendum amends this Agreement and is signed by the Ministry, you and that additional contributor. 3.3 In clause 1.1 of the Agreement, add a definition of Contribution immediately after the definition of Contractor, which reads as follows: Contribution means a financial contribution, the provision of a service and/or the supply of goods made to you by an Additional Contributor, as such contribution, provision or supply is specified in the Payment Plan and/or the relevant AC Contribution Plan. 3.4 Amend clause 2.1(d) of the Agreement to read as follows: (d) you acknowledge that, as soon as the first Payment is made to you by the Ministry and the Council in accordance with the Payment Plan and this Agreement, the matters provided for in section 125G of the Act will occur and your legal rights in respect of the Crown and the Council will be permanently altered. Section 125G relates to restrictions on civil proceedings and relief; and 3.5 Add three new clauses 2.1(f), (g) and (h) immediately following clause 2.1(e) of the Agreement to read as follows: (f) the Additional Contributor agrees to make the Contribution to you, at the times and in the manner provided in the Payment Plan, the relevant AC Contribution Plan, and this Agreement;

5 (g) (h) details of the Contribution will be specified in an AC contribution plan to be agreed between you and the Additional Contributor (AC Contribution Plan); and you acknowledge that the restrictions in section 125G in respect of each Additional Contributor, relating to restrictions on civil proceedings and relief, will occur and your legal rights will be permanently altered in respect of that Additional Contributor with effect from the time specified in sections 125G(4) or (5) (as applicable) of the Act. 3.6 At the end of clause 6.2(c)(ii) of the Agreement, replace the full stop with a semi-colon. Then, add a new clause 6.2 immediately following clause 6.2(c) of the Agreement to read as follows: 6.2(d) provide for the Ministry s consideration a written description of the services to be provided by the Additional Contributor and/or the goods to be provided by the Additional Contributor, and the value of those services and/or goods calculated using the same prices and rates that the Additional Contributor would ordinarily quote for similar services and/or goods in an arms-length competitive tender where payment would be by cash. 3.7 Add new clauses 6.3(c)(x), (xi), (xii), (xiii) and (xiv) immediately following clause 6.3(c)(ix) of the Agreement to read as follows: 6.3(c)(x) 6.3(c)(xi) the proposed monetary value of the Additional Contributor s provision of the services and/or the supply of the goods that you propose comprises the Additional Contributor s contribution; the proposed value of the Additional Contributor s proposed provision of the services; 6.3(c)(xii) the proposed value of any contingency sum included in the Additional Contributor s proposed provision of the services; 6.3(c)(xiii) the proposed value of the Additional Contributor s proposed supply of goods; 6.3(c)(xiv) the proposed value of any trade discount that the Additional Contributor proposes to include in the value of the supply of any goods; 6.3(c)(xv) the proposed value of any prompt payment discount that the Additional Contributor would ordinarily offer to a customer paying in cash for the Additional Contributor s proposed provision of the services and/or supply of the goods. 3.8 Amend clause 6.3(d) of the Agreement to read as follows:

6 (d) a completed Contractor s Statement from each person who provided you a quote that you wish to accept and you have submitted that quote to the Ministry and from each Additional Contributor from whom you intend to receive a Contribution by way of the provision of a service. 3.9 Amend clause 9.1 of the Agreement to read as follows: 9.1 Once you have received written notice that you have obtained the Ministry s approval in accordance with, or satisfied the requirements of, clauses 3, 4, 5, 6, 7 and 8, then you have an important decision to make. You will have to decide whether you wish to continue with this Agreement and receive Payments from the Ministry and the Council, and a Contribution from each Additional Contributor who is a party to this Agreement at the time you complete, sign and deliver the Notice to Proceed Form to the Ministry, pursuant to this Agreement or whether you wish to pursue other options Amend clause 9.2 of the Agreement as follows: 9.2 In order to continue with this Agreement and receive Payments from the Ministry and the Council, and a Contribution from each Additional Contributor who is a party to this Agreement at the time you complete, sign and deliver the Notice to Proceed Form to the Ministry, pursuant to this Agreement, you must: 3.11 Amend clause 9.3(c) of the Agreement to read as follows: (c) when you receive the first Payment under clause 9.3 above, section 125G of the Act relating to the restrictions on civil proceedings and relief will apply to you in respect of the Crown and the Council and you acknowledge that any Payment you receive from the Ministry which is made to you as the Council s payment agent is, for the purposes of section 125G of the Act, a payment received by you from the Council; and 3.12 Add two new clauses 9.3(e) and 9.3(f) immediately after clause 9.3(d) of the Agreement to read as follows: (e) (f) the Additional Contributor will make its Contribution to you in accordance with the Payment Plan, the AC Contribution Plan and this Agreement, provided that if the Additional Contributor becomes a party to this Agreement after the date on which this Agreement becomes a Contribution Agreement for the purposes of the Act, the Additional Contributor will not be obliged to do these things any earlier than the date it becomes a party to this Agreement; and section 125G of the Act relating to the restrictions on civil proceedings and relief will apply to you in respect of the Additional Contributor with

7 effect from the time specified in sections 125G(4) or (5) (as applicable) of the Act Add a new clause immediately after clause of the Agreement to read as follows: Contribution: The Additional Contributor will make the Contribution to you in accordance with the Payment Plan, the AC Contribution Plan and this Agreement Add a new clause 12.6 immediately after clause 12.5 to read as follows: 12.6 You and the Additional Contributor will not agree to any change to the Payment Plan, the relevant AC Contribution Plan or Repair Plan, which alters any provision of the Addendum by which the Additional Contributor became a party to this Agreement, this Agreement, the Payment Plan, the relevant AC Contribution Plan or the Repair Plan, unless the Ministry also agrees to those changes Amend clause 14.1 of the Agreement to read as follows: 14.1 The Ministry may disclose to the Council, each bank or financial institution you use from time to time in relation to satisfying the requirements of clause 8.1, your Lender, an Additional Contributor and/or any other person to whom you consent (such consent not to be unreasonably withheld or delayed) any information that relates to you, including your application to receive financial assistance under the Act, this Agreement, any agreement or arrangement you may have (or propose to have) with that bank, financial institution and/or Lender, any loan and any securities securing any loan made to you by that bank, financial institution and/or Lender (including any mortgage over the Property and any enforcement action thereof) Add a new clause 14.3A immediately after clause 14.3 of the Agreement to read as follows: 14.3A You and the Additional Contributor agree that the Additional Contributor will provide the Ministry with any information reasonably requested by the Ministry in connection with administering the package of financial assistance measures (including in relation to the value of the Contribution (or any part of it) and the provision of services and/or supply of goods comprising the contribution (or lack of provision and/or supply) by that Additional Contributor) Amend clause 14.4 of the Agreement to read as follows: 14.4 The Ministry and the Council make no representation that either has asked for or received any information from a bank, a financial institution,or your Lender, an Additional Contributor or each other.

8 The Ministry and the Council are entitled to rely solely on the information that you provide either of them Amend clause 15.1 of the Agreement to read as follows: the date that the Ministry and the Council have made all of their respective Payments to you and the Additional Contributor (or the last Additional Contributor, if there is more than one) has made and/or completed all of its Contributions to you; or 3.19 Add a new clause 18.3 to the Agreement immediately after clause 18.2 to read as follows: 18.3 The Additional Contributor will not make any representation or statement: (c) in relation to this Agreement and/or the Addendum by which the Additional Contributor became a party to this Agreement, whether for marketing purposes or otherwise; that it is providing services to or for the Ministry or the Council; or that it is an agent, partner, representative or contractor of the Ministry or the Council. 4 TERMINATION OF ADDENDUM 4.1 This Addendum will terminate on the earliest of: the date that the Specified Additional Contributor makes and/or completes all of its Contributions to you in accordance with this Addendum and the Agreement; and termination of the Agreement in accordance with clause 15 of the Agreement. 4.2 Nothing in this Addendum will cause the Agreement (excluding this Addendum) to be terminated. 5 PROVIDING CONTRIBUTION Unless expressly agreed in writing between you, the Specified Additional Contributor and the Ministry, nothing in this Addendum or the Agreement will affect or limit any agreement or arrangement you may have with the Specified Additional Contributor for the provision and/or supply of a Contribution where the provision and/or supply takes effect before the date on which section 125G of the Act applies in respect of you and the Specified Additional Contributor. You acknowledge that:

9 (i) (ii) you enter into any agreement or arrangement with the Specified Additional Contributor for the payment, provision and/or supply of the Specified Additional Contributor s Contribution at your sole risk; and neither the Ministry nor the Council are responsible for the negotiation, execution or management of your agreement or arrangement (if any) with the Specified Additional Contributor in relation to the payment, provision and/or supply of the Specified Additional Contributor s Contribution (or any part of it) to you. 6 DISPUTES BETWEEN YOU AND THE ADDITIONAL CONTRIBUTOR If a dispute arises between you and the Specified Additional Contributor (but which does not include the Ministry and/or the Council) in relation to this Addendum and/or the Agreement, then unless you and the Specified Additional Contributor agree otherwise, nothing in clauses 24.1 to 24.5 (inclusive) of the Agreement will apply to that dispute. In clause 24.6 of the Agreement, a reference to a party includes the Specified Additional Contributor, even if clauses 24.1 to 24.5 (inclusive) of the Agreement do not apply. 7 AMENDMENTS TO THIS ADDENDUM Any amendment to this Addendum and/or the relevant AC Contribution Plan must be recorded in writing and signed by the Ministry, you and the Specified Additional Contributor. 8 NOTICES Any notices or other communications by you or the Ministry may be given to the Specified Additional Contributor using the address specified in the Appendix to this Addendum, as may be amended by notice in writing by the Specified Additional Contributor to the parties. 9 GENERAL PROVISIONS IN THE AGREEMENT In clauses 9.3, 22.2, 23.1, 25.3 to (inclusive) and 26, a reference to party is a reference to the Ministry, the Council, you or the Specified Additional Contributor (and, if the context requires, other Additional Contributors) and a reference to parties is to all of them. 10 AGREEMENT IN FORCE All other terms in the Agreement remain in full force and effect. 11 COSTS The parties will meet their own costs relating this Addendum.

10 SIGNATURES Ministry Signed for and on behalf of Her Majesty the Queen in right of New Zealand acting by and through the Ministry of Business, Innovation & Employment by: Authorised signatory Name Date: Additional Contributor Signed by: [insert specified Additional Contributor s name] in the presence of: Witness signature Witness name Witness occupation Date: Homeowner Signed by: [insert first Homeowner s name] in the presence of: Witness signature Witness name Witness occupation Date: [As Independent Trustee (if applicable)]

11 Homeowner Signed by: [insert second Homeowner s name] in the presence of: Witness signature Witness name Witness occupation Date: [As Independent Trustee (if applicable)] [repeat as necessary]

12 APPENDIX 1 SPECIFIED ADDITIONAL CONTRIBUTOR CONTACT DETAILS Street Address Postal Address Contact person Position Telephone Mobile Fax

13 APPENDIX 2 - AC CONTRIBUTION PLAN AC CONTRIBUTION PLAN [insert homeowner details] (the Homeowner) [insert additional contributor name] (the Additional Contributor) Property address: [insert address of relevant property] (the Property) The Additional Contributor has agreed to provide the Contribution detailed below to the Homeowner, in relation to the Repair of the Property at the above address. Defined Terms Any term that is defined in either: the Homeowner Agreement between the Homeowner, the Ministry of Business, Innovation and Employment (the Ministry) and the [insert details of the territorial authority] relating to the Repair of the Property, including as amended by the Addendum referred to below (the Agreement); or the Addendum for Additional Contributor to which the Additional Contributor is a party, will have the defined meaning when used in this AC Contribution Plan. Contribution Details The Additional Contributor s Contribution will be: (if an option does not apply, delete it) (c) A financial contribution (complete Option A); and The provision of goods (complete Option B); and The supply of services (complete Option C).

14 OPTION A - Financial Contribution The Additional Contributor will make a financial contribution to the Homeowner of: (if an option does not apply, delete it) (c) The amount of $...; and.% of the Approved Costs under the Homeowner Agreement; and Other (please specify below): [insert details of financial contribution] The Additional Contributor will pay the financial contribution: (please delete all options other than the applicable one) (c) (d) In one lump sum, at the same time as the Ministry makes its first Payment under the Homeowner Agreement; or In one lump sum, at the same time as the Ministry pays the Homeowner the Payment for the Completion Milestone under the Homeowner Agreement; or In equal payments at the same time as the Ministry pays the Homeowner the Payment for each Milestone under the Homeowner Agreement, with the Payment for the Completion Milestone being for the balance of the financial contribution; or Other (please specify below): [insert details of the timing for payment of the financial contribution] OPTION B - Provision of Goods The Additional Contributor will supply the following goods to the Homeowner: (if an option does not apply, delete it) The goods described in the attached documentation; and The goods described below (please specify): [insert details of the goods to be contributed]

15 The Additional Contributor will supply the specified goods to the Homeowner: (please delete all options other than the applicable one) As those goods are required to be incorporated into the Repairs to the Property. The Homeowner will provide the Additional Contributor with at least [x] Business Days notice of the date each good is to be incorporated into the Repairs; or Other (please specify below): [insert details of the timing for supply of the contributed goods] OPTION C Supply of Services The Additional Contributor will provide the following services to the Homeowner: (if an option does not apply, delete it) The services described in the attached documentation; and The services described below (please specify): [insert details of the contribution of services] The Additional Contributor will supply the specified services to the Homeowner as and when required during the Repair to the Property under the Homeowner Agreement. The Homeowner will provide the Additional Contributor will at least [x] Business Days notice of the date each service is required. Acknowledgement The Homeowner and the Additional Contributor acknowledge that: The Ministry cannot review, provide legal advice on, or become involved in, the settlement between the Homeowner and the Additional Contributor. The Ministry recommends that the Homeowner and the Additional Contributor each obtain independent legal advice on the settlement reached between them, and on the implications of the Additional Contributor becoming a party to the Homeowner Agreement. The Ministry cannot assist or support either the Homeowner or the Additional Contributor in relation to the resolution of any dispute or the enforcement of the settlement between them. The Ministry is not responsible for arranging payment of any financial contribution or arranging the supply of any contribution of goods or services, and this must be arranged between the Homeowner and the Additional Contributor.

16 Homeowner Signature(s): Additional Contributor Signature(s): Name: Signature Signature Name: Date: Date: Name: Signature Signature Name: Date: Date: