DONATION AGREEMENT. between GLASGOW CLYDE COLLEGE. and GLASGOW CLYDE EDUCATION FOUNDATION

Transcription

1 DONATION AGREEMENT between GLASGOW CLYDE COLLEGE and GLASGOW CLYDE EDUCATION FOUNDATION

2 DONATION AGREEMENT between (1) GLASGOW CLYDE COLLEGE, a body corporate established in accordance with section 11(2) of the Further and Higher Education (Scotland) Act 1992 which is a Scottish charity (Scottish charity number SC021182) and having its principal office at Mosspark Drive, Glasgow G52 3AY( the College ); and (2) GLASGOW CLYDE EDUCATION FOUNDATION, a Scottish charitable incorporated organisation incorporated under the Charities and Trustee Investment (Scotland) Act 2005 with Scottish charity number SC and having its principal office at Mosspark Drive, Glasgow G52 3AY ( the Foundation ) In this Agreement the College and the Foundation shall also, collectively or individually, be referred to as the Parties or a Party. WHEREAS (A) (B) (C) The College was formed in August 2013 following the merger of Anniesland, Cardonald and Langside colleges. The principal charitable purpose of the College is the advancement of education. The College also aims to advance the arts, heritage, culture and science and relieve those in need by reason of age, ill health, disability, financial hardship or other disadvantage. The Foundation was incorporated on 29 January 2014 and aims to promote, advance and further charitable purposes of the advancement of education and the advancement of citizenship and community development primarily through grant giving (with a view that the organisation will grow its own funds to generate additional income for its beneficiaries) to enhance the learning experience for students, potential students and the communities (including by supporting (financially and otherwise) community and not for profit groups and organisations operating within the communities) served by Glasgow Clyde College (a registered Scottish charity, SC021182). In furtherance of its charitable purposes, the organisation will support (a) the delivery of improved teaching accommodation, facilities, infrastructure and/or equipment; (b) the development of teaching and curriculum resources and opportunities; and (c) staff development for the staff of the Glasgow Clyde College to assist and develop the student learning experience. The College has agreed to make a donation to the Foundation and that donation is made subject to the terms and conditions set out in this Agreement. IT IS AGREED that: 1 DONATION 1.1 The College has agreed to make a donation of 14.4 million ( the Donation ) to the Foundation subject to the terms and conditions of this Agreement.

3 1.2 The Donation will be made by way of a transfer from the College to the bank account of the Foundation in one instalment. 1.3 Further annual donations may be made, from time to time, by the College to the Foundation s bank account. 2 PURPOSE OF DONATION AND RESTRICTIONS ON USE OF DONATION 2.1 The Donation is to be used exclusively for the purposes of achieving the Foundation s charitable purposes as specified in preamble (B) above. 2.2 The charity trustees of the Foundation shall be responsible for the application of the Donation, subject to clause 2.4 and the provisions of the Memorandum of Understanding dated 2015 ( the MoU ) between the College and the Foundation in force from time to time. 2.3 The charity trustees of the Foundation shall ensure that in applying the Donation in terms of clause 2.3, they comply with all reporting requirements set out within the MoU in force from time to time. 2.4 The charity trustees shall in applying the Donation, ensure compliance with the conditions attached to the Donation as set out in the Schedule to this Agreement. 2.5 It is expected by the Parties that the Foundation will support projects and applications of a substantial nature submitted by the College and will not generally become involved in supporting smaller items of revenue expenditure of a routine nature. The charity trustees of the Foundation shall determine in their sole discretion (acting reasonably) what constitutes a project or application relating to (smaller) items of revenue expenditure of a routine nature. 3 EVENTS OF DEFAULT 3.1 Subject to clause 3.7, the events listed at clause 3.2 below shall constitute an Event of Default ; in the event of the occurrence of an Event of Default, the College shall be entitled to require repayment of the Donation by the College in whole or in part as directed by the College. 3.2 The following shall constitute an Event of Default for the purposes of clause 3.1: if the Foundation fails to hold or apply the Donation for the purposes specified in clause 2 above; if the Foundation fails to comply with any of the terms and conditions set out in this Agreement (including the Schedule) and in the case of a breach capable of being remedied fails to remedy that breach within 30 days of receiving written notice from the College specifying the breach and requiring the same to be remedied; if there is a material change in the status of the Foundation that has a materially adverse effect on the Foundation s ability to comply with the terms of this Agreement and such change is not approved in writing by the College;

4 3.2.4 if the Foundation is unable to pay its debts as and when they fall due, an application is made to the Office of the Scottish Charity Regulator ( OSCR ) for the removal of the Foundation from the Scottish charity register and dissolved on the grounds that the Foundation is insolvent; or if the Foundation has acted fraudulently or negligently in any material matter in connection with this Agreement. 3.3 The maximum amount of the Donation repayable in terms of clause 3.1 will be limited to the Donation received by the Foundation less (a) any sums already paid in grants or other forms of support to the College or third parties where such sums were made or support provided in compliance with clause 2 and (b) expenses properly incurred in the administration of the Foundation. 3.4 The Foundation shall notify the College in writing immediately upon the occurrence or intended occurrence of any of the events noted in clause 3.2 above. 3.5 On the occurrence of any of the events specified in clause 3.2, the College may terminate this Agreement by notice in writing to the Foundation save that (a) the provisions of this clause 3 will continue to apply until complied with in full and (b) clause 5 will continue to apply indefinitely. 3.6 If any part of the Donation falls to be repaid, the Foundation shall repay that part of the Donation to the College within 30 days of demand. 3.7 The circumstances outlined in paragraph of clause 3.2 shall not amount to an Event of Default to the extent that such circumstances have arisen directly from a breach by the College of its obligations under a grant agreement. 4 NOTICES 4.1 Any notice or other communication required under this Agreement shall be in writing (and shall not be valid if sent by fax or ) and shall be given: to the College at Mosspark Drive, Glasgow G52 3AY, marked for the attention of the Principal; to the Foundation at Mosspark Drive, Glasgow G52 3AY, marked for the attention of the Chairperson. or to such other address (and marked for the attention of such other individual) as either Party may from time to time notify to the other. 4.2 Every notice or other communication shall be deemed to have been received when delivered personally within normal business hours or if received outwith business hours at 9am on the next business day; or two business days after its posting by first class post.

5 5 CONFIDENTIALITY 5.1 The terms of this Agreement are to be treated as confidential and each Party undertakes that it shall not, at any time, disclose to any person any of the details of this Agreement without the prior written consent of the other Party. 5.2 Notwithstanding the provisions of clause 5.1, nothing in this clause 5 shall prevent either Party from disclosing details of this Agreement to its professional advisors, auditors or any regulatory or governmental body which has jurisdiction over the Party or from disclosing any details of the Agreement which may be required by law. 5.3 The provisions of this clause 5 shall continue following the termination of this Agreement. 6 ASSIGNATION The Parties shall not assign, transfer or sub-contract any of their rights or obligations under this Agreement, or purport to do so, without the prior written consent of the other Party to this Agreement. 7 VARIATION No variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the Parties. 8 SEVERANCE 8.1 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected. 8.2 If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the Parties agree to substitute for such illegal, invalid or unenforceable provision a new provision which serves the Parties original commercial intention, so far as possible. 9 THIRD PARTY RIGHTS A person who is not a Party to this Agreement shall not have any rights under or in connection with it.

6 10 LAW & JURISDICTION This Agreement will be governed by, and interpreted in accordance with, Scots law; and any dispute or claim arising out of or in connection with this Agreement shall be subject to the non-exclusive jurisdiction of the Scottish courts. IN WITNESS WHEREOF this Agreement (comprising this and the preceding 5 pages together with the Schedule annexed) is signed and executed as follows: SUBSCRIBED for and on behalf of GLASGOW CLYDE COLLEGE at on by Print Full Name Authorised Signatory before this witness Print Full Name Witness Address

7 SUBSCRIBED for and on behalf of GLASGOW CLYDE EDUCATION FOUNDATION at on by Print Full Name Charity Trustee before this witness Print Full Name Witness Address

8 This is the Schedule referred to in the preceding Agreement between Glasgow Clyde College and Glasgow Clyde Education Foundation. SCHEDULE In applying the Donation under clause 2 of the Agreement, the charity trustees of the Foundation must ensure compliance with the following conditions on use of the Donation: 487,149 of the Donation is restricted for estates maintenance and/or capital projects taken forward by the College and must be applied in line with Scottish Funding Council ( SFC ) standard terms and conditions as if each reference in those standard terms and conditions to the College were a reference to the Foundation or any body to which the Foundation transfers all or part of the relevant funds by way of a donation or other financial support. 1,218,359 of the Donation is restricted, on the basis that it represents funds form the Woodburn disposal proceeds and must be applied in line with SFC requirements. As a condition of SFC approval, use of the proceeds for the merged estate is subject to the College providing SFC with confirmation at a later date of the expenditure being undertaken. The conditions attaching to SFC s approval shall apply to this element of the Donation as if each reference in those standard terms and conditions to the College were a reference to the Foundation or any body to which the Foundation transfers all or part of the relevant funds by way of a donation or other financial support.