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RFI - Attachment 2 - Coast2Bay - Cover Letter & MOU
11 May 2022 Greg Phipps Eco Cottages Pty Ltd 4 Jarrah Street Cooroy QLD 4563 Email to: [email protected] Dear Greg RE: PROPOSED AFFORDABLE HOUSING DEVELOPMENT AT 55 CARPENTERS ROAD, COOROY (MCU22/0039) – RESPONSE TO NOOSA COUNCIL REQUEST FOR INFORMATION Further to our recent meeting in relation to the above proposed development, I write to confirm Coast2Bay Housing Group (C2B) interest in providing a Community Housing outcome and to provide further information to assist in the response to Noosa Councils’ Information Request dated 13 April 2022, extract below. ISSUE: TENURE Limited information has been provided as to how affordable housing will be provided on site in perpetuity and what land tenure arrangements are proposed. INFORMATION REQUIRED: 1. Provide further information detailing how the site will be maintained for affordable housing and the type of tenure or legal arrangements proposed. RESPONSE: C2B recognize the critical need for new supply of social and affordable housing in the Noosa region and we believe the proposed development could provide suitable accommodation to help with this need. We understand the proposed use as a Relocatable Home Park is likely to result in single ownership of the land, which can be leased to third parties. The most logical model for provision of community housing is a Headlease arrangement under C2B’s Community Build-to-Rent program that would operate as follows: • Landowner/developer completes the design and construction of new dwellings and retains ownership as a long-term investment;
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• Community Housing Provider (CHP) enters into a Headlease with the landowner for some
or all dwellings and provides a suitable rental return;
• CHP provides Social and/or Affordable Housing, subletting the dwellings with General
Tenancy Agreements;
• Headlease is in place for 10-year initial term plus 10-year option;
• Headlease is registered on title to provide security of tenure for the Social and/or Affordable
Housing outcomes, ensuring that the lease transfers to new owner upon sale of the land.
C2B has over 10 years’ experience and track record in the operation of the Community Build-to-
Rent model as part of the NRAS scheme and other social housing programs.
Once a pathway to suitable development approval has been determined, C2B proposes the
following legal arrangements which will secure long term affordable housing outcomes on the site:
1. Memorandum of Understanding (MOU) with Eco Cottages which will reflect our intended
relationship to progressively collaborate on the project. Please refer to draft MOU enclosed
(not for execution); and
2. Headlease over the property, entered into at construction completion and registered on
title, as outlined above.
We trust that the information provided will be sufficient to address Council’s Request for Information
in relation to this matter, however, if you require any further information, please contact the
undersigned.
Yours sincerely,
Jess Knott
Development Manager
Coast2Bay Housing Group
Encl. Draft MOU (Coast2Bay Housing Group Ltd and Eco Cottages Pty Ltd)
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MEMORANDUM OF UNDERSTANDING Coast2Bay Housing Group Ltd (ACN 127 308 856) Eco Cottages Pty Ltd (ACN 124 625 458) DRAFT – NOT FOR EXECUTION
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Table of contents
Parties -------------------------------------------------------------------------------------------------------------------------------------- 4
Background ------------------------------------------------------------------------------------------------------------------------------- 4
Agreed terms ----------------------------------------------------------------------------------------------------------------------------- 4
1 Definitions and interpretation ------------------------------------------------------------------------------------------- 4
1.1 Definitions 4
1.2 Interpretation 6
2 Status of document --------------------------------------------------------------------------------------------------------- 6
2.1 Purpose 6
2.2 Legally bound 6
2.3 No undertaking or representation 6
3 Sharing of information ----------------------------------------------------------------------------------------------------- 7
4 Progression and negotiation of Transaction Documents ------------------------------------------------------ 7
4.1 Preparation of Transaction Documents 7
4.2 Negotiation process 7
5 Right to discontinue negotiation and discussions --------------------------------------------------------------- 7
6 Exclusivity and standstill ------------------------------------------------------------------------------------------------- 7
6.1 Restrictions 7
7 Confidentiality and announcements ---------------------------------------------------------------------------------- 8
7.1 Confidentiality 8
7.2 Announcements 8
8 Costs and expenses -------------------------------------------------------------------------------------------------------- 8
9 General -------------------------------------------------------------------------------------------------------------------------- 8
9.1 Amendments 8
9.2 Assignment 8
9.3 Counterparts 8
9.4 No merger 9
9.5 Entire agreement 9
9.6 Further assurances 9
9.7 No waiver 9
9.8 Governing law and jurisdiction 9
9.9 Severability 9
10 Notice ---------------------------------------------------------------------------------------------------------------------------- 9
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10.1 Method of giving notice 9
10.2 When is notice given 10
10.3 Address for notices 10
11 Operation ---------------------------------------------------------------------------------------------------------------------- 10
Schedule ---------------------------------------------------------------------------------------------------------------------------------- 11
Proposed Initiative 11
Execution --------------------------------------------------------------------------------------------------------------------------------- 13
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Dated
Parties
Coast2Bay Coast2Bay Housing Group Ltd (ACN 127 308 856)
of Level 4, Tower 2 Kon Tiki Building, 55 Plaza parade, Maroochydore QLD 4558
Eco Cottages Eco Cottages Pty Ltd (ACN 124 625 458)
of 4 Jarrah St, Cooroy QLD, 4563
Background
A Coast2Bay and Eco Cottages intend to collaborate to provide an affordable and/or community
housing solution for a development project in Cooroy (the Project) and to ensure effective
coordination to implement the Proposed Initiative based on the Key Terms.
B The parties record their agreement in this document.
Agreed terms
1 Definitions and interpretation
1.1 Definitions
In this document:
Term Definition
Associates means, in relation to a party:
(a) a Related Body Corporate of the party;
(b) a director of the party and any spouse of a
director of the party; and
(c) any entity Controlled by a person referred to in
paragraph (a) or (b).
Business Day means a day that is not a Saturday, Sunday or public
holiday in the place where an act is to be performed,
notice received or a payment is to be made.
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Term Definition
Confidential Information with respect to a party, means the terms of this
agreement, the terms or proposed terms of any
Transaction Document, and any information:
(d) relating to the dealings of that party including
dealings with the other party;
(e) delivered to the other party in connection with
the Proposed Initiative or otherwise under a
Transaction Document;
(f) relating to employees, contractors, students or
other persons doing business with that party;
(g) of that party which is by its nature confidential;
(h) which is designated as confidential by that
party; or
(i) of that party which the other party knows or
ought to know is confidential.
Controlled has the meaning given to the term ‘Control’ in section
50AA Corporations Act.
Corporations Act means Corporations Act 2001 (Cth).
Exclusivity Period means the period from the date of this document until
the earlier of:
(a) the parties executing the Stage 3 Services
Agreement; or
(b) the expiration of the one-month period referred
to in clause 5 following a notice delivered in
accordance with that clause.
Government Agency means:
(c) a government or government department or
other body;
(d) a governmental, semi-governmental or judicial
person; or
(e) a person (whether autonomous or not) who is
charged with the administration of a law.
Key Terms means the agreed terms of the Proposed Initiative, as
set out in the Schedule.
Project 55 Carpenters Rd, Cooroy QLD 4563
L2 RP200519 (24,310m2)
Proposed Initiative means the collaboration and services arrangements
described in the Schedule.
Related Body Corporate has the meaning given in section 9 Corporations Act.
Stage 1 Services Agreement has the meaning set out in the Schedule.
Stages means the stages of the Proposed Initiative as set out
in the Schedule.
Transaction Documents means the documents required to implement the
Proposed Initiative in accordance with the Key Terms
described in the Schedule.
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1.2 Interpretation
In this document:
(a) a reference to a clause, schedule, annexure or party is a reference to a clause of, and a
schedule, annexure or party to, this document and references to this document include
any schedules or annexures;
(b) a reference to a party to this document or any other document or agreement includes the
party’s successors, permitted substitutes and permitted assigns;
(c) if a word or phrase is defined, its other grammatical forms have a corresponding
meaning;
(d) a reference to a document or agreement (including a reference to this document) is to
that document or agreement as amended, supplemented, varied or replaced;
(e) a reference to this document includes the agreement recorded by this document;
(f) a reference to legislation or to a provision of legislation (including subordinate legislation)
is to that legislation as amended, re-enacted or replaced, and includes any subordinate
legislation issued under it;
(g) if any day on or by which a person must do something under this document is not a
Business Day, then the person must do it on or by the next Business Day;
(h) a reference to a person includes a corporation, trust, partnership, unincorporated body,
government and local authority or agency, or other entity whether or not it comprises a
separate legal entity; and
(i) a reference to ‘month’ means calendar month.
2 Status of document
2.1 Purpose
The purpose of this document is to confirm that the parties intend:
(a) to implement the Proposed Initiative; and
(b) to sign Transaction Documents to reflect the Key Terms.
2.2 Legally bound
The parties intend to be immediately legally bound by clauses 5, 6, 7, 8 and 9 but not by terms in
the other clauses of this document. No legal obligation arises under those other clauses unless
and until the Transaction Documents are signed by the parties.
2.3 No undertaking or representation
Until the Transaction Documents are signed, no undertaking or representation is made about the
Proposed Initiative as a result of:
(a) negotiations between the parties to prepare the Transaction Documents; or
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(b) any action or inaction by a party on the assumption or in the expectation that the
Transaction Documents will be signed.
3 Sharing of information
From the date of this document, each party must cooperate with the other party in good faith and
exchange any material or document which reasonably needs to be exchanged to enable the
parties to comply with this document and prepare and negotiate the Transaction Documents.
4 Progression and negotiation of Transaction Documents
4.1 Preparation of Transaction Documents
(a) Coast2Bay must deliver the draft Stage 1 Services Agreement (unless agreed otherwise
between the parties), and the parties must in good faith and using reasonable
endeavours, progress, negotiate and sign the Stage 1 Services Agreement with a view to
signing it prior to the anticipated commencement date of Stage 1 set out in the Schedule.
(b) The parties will determine the appropriate time for preparation of the balance of the
Transaction Document based on progress with respect to the immediately preceding
Stage and having regard to the anticipated commencement date for the relevant Stage
set out in the Schedule.
4.2 Negotiation process
Each party agrees that:
(a) the negotiations are to take place in a genuine and timely manner; and
(b) decision makers representing it are to be reasonably available for the negotiations.
5 Right to discontinue negotiation and discussions
Subject to the terms of any Transaction Document, either party may at any time end the
discussions and negotiations to implement the Proposed Initiative by providing one month’s
written notice to the other party at any time.
6 Exclusivity and standstill
6.1 Restrictions
In consideration of each party negotiating with the other regarding the Proposed Initiative:
(a) each party must terminate any discussions taking place at the time with any person, other
than the other party, about the Proposed Initiative or any transaction substantially similar
to, or in substitution for, the Proposed Initiative; and
(b) each party must not, on or before the end of the Exclusivity Period:
(i) directly or indirectly, solicit or respond to any enquiries or proposals of any
person, other than the other party or a relevant Government Agency, about the
Proposed Initiative or any transaction substantially similar to, or in substitution for,
the Proposed Initiative; or
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(ii) give information to or have discussions with any person other than the other party
or a relevant Government Agency about the Proposed Initiative,
unless the directors of that party, by complying with clause 6.1(b), would breach their fiduciary
duties.
7 Confidentiality and announcements
7.1 Confidentiality
A party must not disclose the Confidential Information of another party to any other person
except:
(a) with the consent of the party whose Confidential Information it is;
(b) as required by law or an applicable stock exchange; or
(c) to its professional advisers and employees for the purpose of progressing and negotiating
the Transaction Documents or otherwise implementing the Proposed Initiatives in the
manner specified in the Transaction Documents, on the basis that the person to whom
the Confidential Information is disclosed keeps the information confidential.
7.2 Announcements
A party must not make a press release, announcement or other public statement about the
Proposed Initiative except with the written consent of the other party or as required by law or an
applicable stock exchange.
8 Costs and expenses
(a) Each party bears its own costs and expenses (including of accountants, lawyers and
other advisers) incurred in the negotiation, preparation and signing of this document.
(b) Responsibility for the costs and expenses (including of accountants, lawyers and other
advisers) incurred in the negotiation, preparation and signing of the Transaction
Documents will be set out in the Transaction Documents.
9 General
9.1 Amendments
This document may only be amended by written agreement between all parties.
9.2 Assignment
A party may only assign this document or a right under this document with the written consent of
each other party.
9.3 Counterparts
This document may be signed in any number of counterparts. All counterparts together make
one instrument.
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9.4 No merger
The rights and obligations of the parties under this document do not merge on completion of any
transaction contemplated by this document.
9.5 Entire agreement
(a) This document supersedes all previous agreements about its subject matter and
embodies the entire agreement between the parties.
(b) To the extent permitted by law, any statement, representation or promise made in any
negotiation or discussion has no effect except to the extent expressly set out or
incorporated by reference in this document.
9.6 Further assurances
Each party must do all things reasonably necessary to give effect to this document and the
transactions contemplated by it.
9.7 No waiver
(a) The failure of a party to require full or partial performance of a provision of this document
does not affect the right of that party to require performance subsequently.
(b) A single or partial exercise of or waiver of the exercise of any right, power or remedy does
not preclude any other or further exercise of that or any other right, power or remedy.
(c) A right under this document may only be waived in writing signed by the party granting
the waiver, and is effective only to the extent specifically set out in that waiver.
9.8 Governing law and jurisdiction
(a) Queensland law governs this document.
(b) Each party irrevocably submits to the non-exclusive jurisdiction of the Queensland courts
and courts competent to hear appeals from those courts.
9.9 Severability
A clause or part of a clause of this document that is illegal or unenforceable may be severed from
this document and the remaining clauses or parts of the clause of this document continue in
force.
10 Notice
10.1 Method of giving notice
A notice, consent or communication under this document is only effective if it is:
(a) in writing, signed by or on behalf of the person giving it;
(b) addressed to the person to whom it is to be given; and
(c) given as follows:
(i) delivered by hand to that person’s address;
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(ii) sent to that person’s address by prepaid mail or by prepaid airmail, if the address
is overseas; or
(iii) sent by email to that person’s email address where the sender receives an email
receipt from the recipient to the sender which indicates that the email was
received at the email address of the recipient.
10.2 When is notice given
A notice, consent or communication given under clause 10.1(a) is given and received on the
corresponding day set out in the table below. The time expressed in the table is the local time in
the place of receipt.
If a notice is It is given and received on
Delivered by hand or sent (a) that day, if delivered or sent by 5.00pm on a Business
by email Day; or
(b) the next Business Day, in any other case.
Sent by post (a) three Business Days after posting, if sent within
Australia; or
(b) seven Business Days after posting, if sent to or from a
place outside Australia.
10.3 Address for notices
A person’s address and email address are those set out below, or as the person notifies the
sender:
Name Coast2Bay Housing Group Ltd
Attention Andrew Elvin
Mailing address PO Box 324 Nambour QLD 4560
Email address [email protected]
Name Eco Cottages Pty Ltd
Attention Greg Phipps
Mailing address 4 Jarrah St, Cooroy QLD, 4563
Email address [email protected]
11 Operation
Clauses 1, 8 and 9 survive expiry or termination of this document.
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Schedule
Proposed Initiative
Background Coast2Bay is an independent, not-for-profit affordable housing
organisation, which provides affordable, safe and appropriate homes for
individuals and families through the Sunshine Coast, Noosa, Moreton
Bay and Gympie regions.
Eco Cottages designs, builds and installs modular, transportable and
relocatable homes.
The parties are proposing to collaborate on their respective strengths to
provide project coordination in respect of a potential community and
affordable housing development.
Key Terms The parties wish to enter into this agreement to reflect their intended
relationship to progressively collaborate in the development of the
Project.
Coast2Bay will be initially responsible for advising and sharing
information on community and affordable housing models, best practice
in built form and other practical considerations for consideration of
inclusion in the Project.
It will assist in advocating for the project with Noosa Council and will also
develop and inform the Queensland Government of the potential for
affordable housing, apply for grants and subsidies for the proposal.
Eco Cottages will provide qualified resources during the process where
appropriate to advise and assist with the development of a model and
documentation suitably compliant with the local planning scheme.
Coast2Bay will undertake this project with a view to assisting in the
management and coordination role for all community stakeholders large
and small, and investment into the community component of the Project.
The parties will proceed with the Proposed Initiative in the four Stages
set out in this Schedule.
Stage 1 – Project The parties will:
Feasibility, Development (a) collaborate on proposed design drawings to make the product
Approval & Funding suitable for community and/or affordable housing;
(b) share ideas and IP to deliver a successful integrated housing
project;
(c) jointly consult with Noosa Council seeking support for the
proposed initiative, as required;
(d) introduce the Project to engage Government Agencies for review
and discussion involving possible government funding for the
community and affordable housing elements; and
(e) lodge a development application with Noosa Council.
The parties will enter into a services agreement with respect to their
roles and responsibilities in developing the project structure, feasibility,
finance and delivery framework (Stage 1 Services Agreement).
Stage 2 – Project Once the Project is approved, it will be delivered in accordance with
Approval and Delivery earlier stages of the Proposed Initiative and the terms and conditions of
any accepted submission on an ongoing basis.
The parties will enter into a services agreement with respect to their
roles and responsibilities in delivery of the Project (Stage 2 Services
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Agreement) and a contract of sale or lease for community and
affordable housing elements.
Transaction Documents The Transaction Documents for the Proposed Initiative will include the
Stage 1 Services Agreement and Stage 2 Services Agreement.
Each Transaction Document will contain terms usual having regard to
the propose work to be undertake, including:
(a) detail regarding the roles and responsibilities of the parties and
any deliverables;
(b) standards required to be met for deliverables;
(c) timeframes for deliverables;
(d) fees payable;
(e) intellectual property provisions; and
(f) a process for resolving any disputes that arise.
The parties may decide to combine Transaction Documents or draft
them contemporaneously where that is appropriate given the stage of
the Proposed Initiative and the information available to them at the time.
Funding Each party will cover their own respective costs and expenses unless
agreed in this document or otherwise in writing in the Transaction
Documents.
Anticipated timetable Stage Provisional Commencement date
Stage 1 TBC
Stage 2 TBC
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Execution
EXECUTED as a deed
Signed sealed and delivered
by
Coast2Bay Housing Group Ltd ACN 127 308 856
by:
Director Director/Secretary
Full name of Director Full name of Director/Secretary
Signed sealed and delivered
by
Eco Cottages Pty Ltd (ACN 124 625 458)
by:
Director Director/Secretary
Full name of Director Full name of Director/Secretary
Date:
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