The terms and conditions of the Grant Agreement apply to all Applications submitted to the Council on or after 19 March 2021
PORTSMOUTH CITY COUNCIL
CIVIC OFFICES, GUILDHALL SQUARE
(1) PORTSMOUTH CITY COUNCIL whose principal address is at Civic Offices, Guildhall Square, Portsmouth, Hampshire, PO1 2PX (the “Council”);
(2) The Applicant as named in the Application Form;
(A) The Council has allocated funding from the Air Quality Improvement Programme for the purposes of providing grants to support the upgrade of Taxis and Private Hire Vehicles which are currently non-compliant with the Clean Air Zone.
(B) The Council has agreed to pay the Grant to the Applicant to assist it in carrying out the Project.
(C) This Grant Agreement sets out the terms and conditions on which the CAF Grant is made by the Council to the Applicant.
(D) These terms and conditions are intended to ensure that the CAF Grant is used for the purpose for which it is awarded.
(E) Unless the context otherwise requires, the terms set out in Schedule 1 shall have the meanings ascribed to them in Schedule 1.
Purpose of the Clean Air Fund
1. By submitting the Application Form, the Applicant confirms that it agrees and accepts the terms and conditions of this Grant Agreement.
2. The Council reserves the right to change these terms and conditions and will inform the Applicant beforehand of any significant changes.
3. The Applicant agrees that any information provided may be cross referenced with other databases of information that the Council holds, such that the Council may verify the information provided by the Applicant and any changes to the vehicles referenced in the Application against the Council’s records.
4. The Applicant acknowledges and accepts that any grant funding awarded under the Clean Air Fund is awarded according to scoring and prioritisation of each application in the Funding Round. The Council intends (but does not guarantee) that the Clean Air Fund will run for as long as funding is in place. The Council reserves the right to increase or decrease the amount of funding available under the Clean Air Fund and/or withdraw the Clean Air Fund completely at any time.
5. Should additional funding be made available by the Council for the Clean Air Fund, the Applicant, who is already in receipt of the CAF Grant and/or the Grant Approval Letter, will not be entitled to any further payment or additional funds. All payments or offers of funding are final except where the Council are entitled to withdraw the CAF Grant in accordance with this Grant Agreement. Similarly, if the funding available for the Clean Air Fund is reduced or withheld, the Council reserves the right to stop further payments being made to the Applicant.
Payment of Grant
6. The Council shall pay the CAF Grant to the Dealership, Seller or Retrofit Supplier, and only to the Applicant if it has been agreed with Portsmouth City Council in writing in advance, in accordance with this Grant Agreement but the CAF Grant shall only become payable if:
5.1 clause 7 below has been fulfilled to the satisfaction of the Council;
5.2 the Council has issued the Grant Approval Letter to the Applicant; and
5.3 the Applicant has satisfied any requirements set out in this Grant Agreement and the Grant Approval Letter.
6. The frequency of payment of the CAF Grant will be made in accordance with the provisions of Schedule 2 and will depend on the funding option that the Applicant selects in their Application.
7. If any funding is incorrectly paid to the Applicant by the Council, the Applicant shall repay such sums to the Council as soon as practicable but in any event promptly. This shall include (without limitation) any situation where the CAF Grant has been paid in error before fulfilment of all the conditions required by this Grant Agreement and the Grant Approval Letter.
8. The Dealership, Seller, Retrofit Supplier or Applicant shall only be paid the CAF Grant on the Applicants submission of the Required Information. Should the Council be of the opinion that any of the Required Information has not been provided or in the Council’s reasonable opinion the Required Information does not satisfy the criteria then the Council reserves its right to withhold or withdraw payment of the CAF Grant in part or in its entirety and the Applicant shall have no legal recourse.
9. The claim for the CAF Grant by the Applicant shall be by way of a completed Claim Form and accompanying Required Information which must be received by the Council no later than any date or deadline set out in the Grant Agreement or the Grant Approval Letter. Any Claim Form received by the Council after the aforementioned date or deadline shall not be valid and will be of no effect and no CAF Grant will be payable.
10. The CAF Grant or any part of it that becomes payable to the Applicant shall be payable under the Council’s standard payment terms which are 30 (thirty) days from date of receipt of a valid Claim Form together with the Required Information. For the avoidance of any doubt, the Applicant will not claim for any capital costs and/or measures within the Project if such capital costs and/or measures have been incurred prior to the receipt of the Grant Approval Letter from the Council.
11. In no event shall the Council contribute towards any cost overruns or cost increases by the Applicant in its delivery of the Project.
Use of Grant
12. The CAF Grant may be used to fund capital costs for measures within the Project as set out in Schedule 2 or other measures that are approved by the Council in writing. No part of the CAF Grant shall be used however to support option appraisals or feasibility studies which cannot be properly capitalised in accordance with proper accounting practise. The Applicant shall not make any changes to the Project without the Council’s prior written agreement.
13. The Applicant shall demonstrate to the satisfaction of the Council funding commitment to the Project from other sources where reasonably required by the Council.
14. If any part of the CAF Grant remains unspent at the end of the Project the Applicant shall return any such monies to the Council within seven (7) days of its written request. Interest shall accrue at a rate of 2% above the base lender rate from time to time of the Barclays Bank Pc on all such monies.
Application and Eligibility Criteria
15. The Applicant acknowledges and accepts that the Application will be allocated a unique application reference number which includes reference to the relevant grant scheme Applicants apply for.
16. If the Council requires any amendment to or further information on an Application, the Council will put an Application on hold until the Applicant supplies the amendment or further information and the Council is satisfied with the Application. If the Clean Air Fund has been exhausted before the Applicant supplies that amendment or additional information, the Council will reject the Application and the CAF Grant will not be payable.
17. The Applicant may apply for grants for multiple vehicles under a single application. The Council reserves the right to set and amend the limit on the maximum number of vehicles that can be applied for to manage the fair and effective distribution of the funding.
18. The Applicant may be deemed to not be eligible if they do not meet any of the Eligibility Criteria as set out for the respective CAF Grant in Schedules 2.
19. The information in the Application must be consistent across the V5C Registration Document and other documents submitted to the Council. The Council will notify the Applicant of any discrepancies that are identified which the Applicant must correct before the Application can be progressed. If the Applicant fails to provide the Required Information within 14 days of it being requested the Council may reject the Application.
20. If the Applicant reapplies following a rejected Application, the Applicant must submit a revised Application, whether through submitting a completely new application or making amendments to the rejected Application, along with any additional Required Information. The Applicant may not reapply within the same Funding Round as when their last Application was rejected.
21. The Council will notify the Applicant of the acceptance or rejection of any Application in writing using the email address provided in the Application.
22. The Applicant acknowledges that the CAF Grant cannot be transferred to another person or entity or applied to another vehicle not detailed in the Application.
Withholding, Suspending and Repayment of Grant
23. Where the Council finds that the Applicant is in breach of this Grant Agreement, including but not limited to, fraudulent or inaccurate information submitted to the Council, the Council may seek recovery of the CAF Grant in full and may bring legal proceedings against the Applicant. In the event of fraudulent applications, the Council may pass all the information to the relevant authorities.
24. The Council may withhold and have no obligation to pay the CAF Grant or, where the CAF Grant has been paid out, may require the Applicant to repay the CAF Grant, in whole or in part, in any or all of the following circumstances: –
a) The Applicant breaches any terms of this Grant Agreement;
b) The Applicant has provided any inaccurate, false or misleading information in the Application for the CAF Grant or in any documents or information submitted in relation to the CAF Grant;
c) The Applicant fails to complete/implement the necessary steps, works or measures in relation to the Project within the timescales specified in this Grant Agreement or the Grant Approval Letter (and the time shall be of the essence)and/or fails to provide satisfactory supporting evidence / information to the Council as required by this Grant Agreement and/or the Grant Approval Letter;
d) The Applicant completes/implements the necessary steps, works or measures in relation to the Project prior to receipt of the required approvals as specified in this Grant Agreement;
e) The Applicant uses the CAF Grant for purposes other than those for which it has been awarded;
f) The Project does not start within the dates and deadlines set out in this Grant Agreement and/or the Grant Approval Letter;
g) The Council considers that the Applicant has not made satisfactory and diligent progress with the delivery of the Project;
h) The Applicant is, in the reasonable opinion of the Council, delivering the Project in a negligent manner;
i) The Applicant obtains duplicate funding from a third party for the Project;
j) The Applicant commits or has committed a Prohibited Act;
k) The Applicant and/or any member of the governing body, employee or volunteer of the Applicant has (i) acted dishonestly or negligently at any time and directly or indirectly to the detriment of the Project or the Council; or (ii) taken any actions which, in the reasonable opinion of the Council, bring or are likely to bring the Council’s name or reputation into disrepute;
l) The Applicant ceases to operate for any reason, or it passes a resolution (or any court of competent jurisdiction makes an order) that it be wound up or dissolved (other than for the purpose of a bona fide and solvent reconstruction or amalgamation);
m) The Applicant becomes insolvent, or it is declared bankrupt, or it is placed into receivership, administration or liquidation, or a petition has been presented for its winding up, or it enters into any arrangement or composition for the benefit of its creditors, or it is unable to pay its debts as they fall due;
n) The Applicant’s acts or omissions in relation to the Project result in a breach of the grant funding conditions that the Council must comply with in relation to the Clean Air Fund and/or the CAF Grant with the central Government and/or the Applicant does not provide any necessary information when required that would allow the Council to obtain such grant funding;
o) If the provision of the CAF Grant itself is deemed (by an appropriate authority) to breach the UK Subsidy Control Regime, the Council may at its absolute discretion reduce, suspend or withhold the CAF Grant, or require all or part of the CAF Grant (together with any applicable interest as may be payable under the UK Subsidy Control Regime) to be repaid by the Applicant;
p) There is a breach of any covenants and/or warranties given in this Grant Agreement and/or the Application including but not limited to the warranties given in clause 40;
25. The Council reserves the right to end an Applicant’s entitlement to the CAF Grant if any of the following occur:
a) The Council has reasonable grounds to believe that the Applicant is no longer eligible for the CAF Grant (i.e. the Applicant is benefitting from the grant funding to which they are no longer entitled as set out in this Grant Agreement). In these circumstances the Council will write to the Applicant with the reasons for the decision.
b) The Council has reasonable grounds to believe that the Applicant is not using the CAF Grant for its intended purpose
c) The Applicant is not responding to communication from the Council within 14 days of the communication being sent.
Monitoring and Reporting
26. The Applicant shall closely monitor the delivery and success of the Project to ensure that the aims and objectives of the Project are being met and that this Grant Agreement is being adhered to. The Applicant shall immediately inform the Council of any concerns or issues in relation to progress and any matters affecting the delivery of the Project.
27. Should the Applicant be subject to financial or other difficulties which are capable of having a material impact on its effective delivery of the Project or compliance with this Grant Agreement it shall notify the Council as soon as possible.
28. At any time after the Council receives the Application for the CAF Grant including after an Application has been accepted and/or after any payment has been made, the Council may ask for evidence of an Applicant’s eligibility for the CAF Grant and/or any other information about vehicles referenced in an Application for the purposes of determining eligibility for the CAF Grant.
29. Where further information is required the Council will make a written request for any such information and the Applicant must provide that information to the Council by the date stated in that request.
30. If as a result of checks of the information provided by the Applicant the Council at its sole discretion decides that an Application does not meet the Eligibility Criteria then the Council will reject the Application and notify the Applicant accordingly.
31. Eligibility Criteria for each CAF Grant are listed in Schedule 2. If the Applicant does not meet the Eligibility Criteria the CAF Grant will not be granted.
32. Once the Council is satisfied that the Application meets Eligibility Criteria, the Applicant will be sent the Grant Approval Letter.
33. If the Applicant selects to purchase or lease a Compliant Vehicle, they have 3 months from the Grant Approval Letter to notify the Council of a vehicle that has been identified and is ready to purchase or lease.
34. The CAF Grant will be provided for an approved Application at the Applicant’s request, once the Applicant has identified a vehicle they will purchase or lease and the Council has approved this vehicle. Within 7 days from the Council approving the vehicle, the Applicant must pay the Dealership or Seller the remaining balance of payment, or the full amount if previously agreed in writing, and submit the completed Claim Form to the Council so that the council can pay the remaining CAF Grant payment to the Dealership or Seller, by emailing CAZHelpDesk@portsmouthcc.gov.uk and must also provide such evidence as required by the Council, including but not limited to evidence as set out in Schedules 2.
34A. The Applicant must also provide evidence of the old Non-Compliant Vehicle/s being scrapped or sold. The Council will release the CAF Grant to complete the purchase or lease of the new Compliant Vehicle/s upon receipt of this evidence. The Council will provide the CAF Grant directly to the Dealership or Seller, and only to the Applicant if it has been agreed with Portsmouth City Council in writing in advance.
35. If the Applicant selects to undertake a Retrofit Solution they have 28 days from the date of the Grant Approval Letter to make a booking to have a Retrofit Solution installed from an Approved Supplier. The Applicant confirms that the Council may verify with the Approved Supplier that a booking is in place, and also once the Retrofit Solution has been installed. The Applicant gives the Council permission to contact Approved Suppliers to gather such information for the purposes of this Grant Agreement.
36. The installation of a Retrofit Solution must be undertaken within four months from the date of the Grant Approval Letter (if that option is selected) using the Approved Supplier. The Applicant must notify the Council in writing of the retrofit conversion having taken place by emailing CAZHelpDesk@portsmouthcc.gov.uk and providing such evidence as is set out in Schedule 2 within those four months.
37. The Council may extend the periods specified in this Grant Agreement and/or the Grant Approval Letter for the Applicant to complete a purchase or lease or undertake a Retrofit Solution in exceptional circumstances. If the Applicant does not comply with any extended time periods set by the Council the Application may be rejected and no funding will be awarded, or funding may be reclaimed by the Council if already issued in accordance with the terms of this Grant Agreement.
38. Without prejudice to the Council’s other rights and remedies, the Council may at its absolute discretion permit a ‘sunset period’ from any charges payable to enter or drive within the Clean Air Zone, to the Applicant awaiting an approved upgrade, and being required to use their Non-Compliant Vehicles in the meantime. However the Council does not have an obligation to provide this.
39. The Applicant acknowledges that if the Applicant does not use the Approved Supplier for the purposes of the Project, the Council will reject the Application and the CAF Grant will not be awarded and any previously awarded CAF Grant will have to be repaid to the Council.
The Applicant’s Obligations
40. The Applicant covenants and warrants that:
a) All information provided to the Council (including but not limited to as part of the Application) is accurate and complete and it may be relied upon by the Council for the purposes of assessing an Application;
b) The Applicant will inform the Council if any part of the information is no longer correct within seven days of such information no longer being correct;
c) At any time within 3 years of receiving the CAF Grant, the Applicant will inform the Council in writing by emailing CAZHelpDesk@portsmouthcc.gov.uk within seven days of the Bus or Coach purchased, leased or retrofitted as part of the Project being sold or transferred;
d) The Buses or Coach/es purchased, leased or retrofitted as part of the Project have not previously been subject to the Clean Air Fund or similar schemes whether run by the Council or any other public authority where funding has been given to purchase, lease retrofit or upgrade such vehicles;
e) The Applicant will be willing to share evidence (such as contracts, email confirmation or vehicle telematics) of the use of the CAZ by any vehicle purchased, leased, upgraded or retrofit under the Project, with the Council and at the Council’s request. The previous Legal Owner or the Registered Keeper of the vehicles subject to the Project have not previously applied and been awarded any funding from the Council or any other public authority to purchase, lease, upgrade or retrofit such vehicles; and
f) The Applicant will use reasonable endeavours to operate the new Compliant Vehicle/s which was/were purchased, leased, upgraded or retrofitted as part of the Project for journeys which include the CAZ and wider Portsmouth area for at least 3 years from the date the CAF Grant was paid to the Applicant
g) The Applicant will prioritise indefinitely the use of the new Compliant Vehicle/s which was/were purchased, leased, upgraded or retrofitted as part of the Project, for journeys which include the CAZ and wider Portsmouth area, over any other vehicles in the fleet which do not meet the emission standards of a Compliant Vehicle.
41. Where the Applicant is also the Legal Owner, the Applicant warrants that it has full capacity and authority to enter into this Grant Agreement; and obtained authority from the Registered Keeper where applicable.
42. Where the Applicant is the Registered Keeper but not the Legal Owner, the Applicant warrants that it:
a) has full capacity and authority to enter into this Grant Agreement;
b) has obtained written and signed authority from the Legal Owner; and
c) will do everything possible to ensure the Legal Owner complies with any relevant obligations in this Grant Agreement.
43. The Applicant acknowledges that only one Application may be made and funding granted per Bus or Coach regardless of changes of ownership and shall ensure its Application complies with this condition. For the avoidance of doubt, Applications in relation to vehicles which have already been subject to any grant funding from the Council prior to the Application will not be accepted.
Rejection of the Application
44. Without limiting its other rights and remedies, the Council may reject an Application if the Applicant does not:
a) where the option to purchase/lease a Compliant Vehicle is selected:
i. Identify a vehicle ready to purchase or lease within three months from the date of Grant Approval Letter (or any other deadline set out in the Grant Approval Letter);
ii. Complete a purchase or new lease of a Compliant Vehicle, if the vehicle is Approved by the Council, within 7 days from receiving the Council’s approval of the vehicle;
iii. Provide any required information within 14 days of the Council requesting it; and/or
iv. Comply with the terms and conditions of this Grant Agreement or the Grant Approval Letter.
b) Where the option to retrofit a vehicle is selected:
i. Book an appointment for a Retrofit Solution, if selected, with an Approved Supplier within 28 days from the formal date that an Application is approved;
ii. Provide any required information within 14 days of the Council requesting it;
iii. Complete the Retrofit Solution, if selected, with an Approved Supplier or purchase a Compliant Vehicle, if selected, within four months of the date that an Application is approved; and/or
iv. Comply with the terms and conditions of this Grant Agreement or the Grant Approval Letter.
45. Without prejudice to the Council’s other rights and remedies, the Council may at its absolute discretion reduce, suspend or withhold the CAF Grant or require all or part of the CAF Grant to be repaid by the Applicant if any of the circumstances in Clause 44 arise.
Limitation of Liability
46. The Council accepts no liability for any consequences, whether direct or indirect, that may arise from the Applicant running the Project, the use of the CAF Grant or from withdrawal of the CAF Grant. The Applicant shall indemnify and hold harmless the Council, its employees, agents, officers or sub-contractors with respect to all claims, demands, actions, costs, expenses, losses, damages and all other liabilities arising from or incurred by reason of the actions and/or omissions of the Applicant in relation to the Project, the non-fulfilment of obligations of the Applicant under this Grant Agreement or its obligations to third parties.
47. The Council are not responsible or liable for any action taken by a Legal Owner or Registered Keeper in relation to the sale, lease, financial arrangement or future use of the Bus or Coach referenced in the Application including ongoing operating or maintenance costs.
48. The Council’s liability under this Grant Agreement is limited to the payment of the CAF Grant.
Records and Evidence
49. The Applicant will keep accurate records of any documents submitted to the Council in relation to the Application and evidence of receipt of the CAF Grant received from the Council.
Subsidy Control and State Aid
50. In accepting the CAF Grant, the Applicant agrees to indemnify the Council and keep the Council indemnified in relation to any expense, liability, loss, under statute (including with the rules on Subsidy Control set out in Title XI Chapter 3 of the Trade and Co-operation agreement between the UK and the European Union or any UK subsidy control system implemented under the United Kingdom Internal Market Act 2020 (together the “UK Subsidy Control Regime”)) (as amended) or at common law in respect of personal injury to or death of any person whomsoever or loss of or damage to property whether belonging to the Council or otherwise or any claim by any third party arising out of or in the course of or caused or contributed to by the delivery of the Project or otherwise through the default or negligence of the Applicant or any breach by the Applicant of any term of this Grant Agreement.
51. If the provision of the CAF Grant itself is deemed (by an appropriate authority) to breach the UK Subsidy Control Regime, the Council may at its absolute discretion reduce, suspend or withhold the CAF Grant, or require all or part of the CAF Grant (together with any applicable interest as may be payable under the UK Subsidy Control Regime) to be repaid by the Applicant.
52. The Applicant acknowledges that the Council is subject to obligations under the Freedom of Information Act 2000 (“FOI”), the Environmental Information Regulations 2004 (“EIRs”), the Data Protection Act 2018 and any codes of practice and guidance made pursuant to the same as amended or replaced from time to time and may be required to provide information and cooperate with the Council in relation to such matters at no cost to the Council.
53. The Applicant acknowledges that the Council may be required to disclose information without consulting or obtaining consent from the Applicant in order to comply with the FOI and EIRs. The Council shall take reasonable steps to notify the Applicant of a request for information (in accordance with the Secretary of State’s section 45 Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the the Freedom of Information Act 2000) to the extent that it is permissible and reasonably practical for it to do so but (notwithstanding any other provision in this Grant Agreement) the Council shall be responsible for determining in its absolute discretion whether any information is exempt from disclosure in accordance with the FOIA and/or the EIRs.
Communications and Notices
54. The Applicant is responsible for:
a. providing the Council with correct and accurate information in order that the Council can assess their Application against the Eligibility Criteria and promptly notifying the Council of any changes or imminent changes to that information;
b. reading, acting on and where required responding to all emails and letters the Council sends to the Applicant regarding an Application;
c. making sure that mailbox settings for emails, including spam filters, allow the receipt of emails from the Council; and
d. making sure that correct contact details are registered with the Council and that the Council is promptly informed if those contact details change.
55. The Applicant agrees that the Council is not responsible if the Applicant fails to read and act upon any correspondence the Council sends to the Applicant.
56. The Applicant agrees to receive communications related to this Grant Agreement and the Application from the Council electronically.
57. Any notice the Council gives under this Grant Agreement may be sent to the address provided in an Application or through other correspondence and may include items sent via the post, by email, or any other electronic transmission.
58. A notice the Council sends to an Applicant will be deemed to be served in accordance with the following:
• Delivered by hand, at the time of delivery
• Posting, after two business days
• Sent by email or other electronic transmission, if sent on a business day before 16:30, on that day; or in any other case, on the next business day after the day it was sent
59. English will be the language for all communications between the Parties.
60. In all notices the Council will include the unique reference number allocated to each Application.
61. The Applicant agrees to not send the Council any material that is illegal, offensive, abusive, defamatory, menacing, or which would breach copyright, trademark, confidence, privacy or any other right. This also includes material which may contain software viruses, political campaigning, advertising for business, chain letters, mass mailings or ‘spam’.
Acknowledgment and Publicity
62. The Applicant shall acknowledge the CAF Grant in its annual report and accounts, including an acknowledgement of the Council as the source of the CAF Grant.
63. The Applicant shall not publish any material referring to the Project or the Council without the prior written agreement of the Council. The Applicant shall acknowledge the support of the Council in any materials that refer to the Project and in any written or spoken public presentations about the Project. Such acknowledgements (where appropriate or as requested by the Council) shall include the Council’s name and logo (or any future name or logo adopted by the Council) using the templates provided by the Council from time to time.
64. In using the other party’s name and logo, each party shall comply with all reasonable branding guidelines issued by the other party from time to time.
65. The Applicant agrees to participate in and co-operate with promotional activities relating to the Project that may be instigated and/or organised by the Council.
66. The Council may acknowledge the Applicant’s involvement in the Project as appropriate without prior notice.
67. The Applicant shall comply with all reasonable requests from the Council to facilitate visits, provide reports, statistics, photographs and case studies that will assist the Council in its promotional and fundraising activities relating to the Project.
68. The Council will comply with all its obligations under the Data Protection Legislation and will only process the Personal Data of the Applicant, Legal Owner and Registered Keeper to administer the CAF grant scheme including for the purposes of assessing eligibility for the CAF grant scheme, and if successful, paying the CAF Grant.
69. The Council may share and receive the Personal Data of the Legal Owner and Registered Keeper with an Approved Supplier for the purposes of verifying the details of the Euro Emission Standard of the vehicle and to confirm a booking for a Retrofit Solution has been made or that a Retrofit Solution has taken place. The amount of Personal Data shared will be limited to the minimum necessary. We may be required by law to disclose your personal information without your consent for the purposes of preventing or detecting crime/fraud or apprehending and prosecuting offenders (for example to the police, Cabinet Office, Department for Work and Pensions or as part of the National Fraud Initiative) or where we have a statutory duty to do so. For more information follow the link to read our National Fraud Initiative page.
70. The information provided by the Applicant to the Council will be stored for a period of 6 years plus current, otherwise known as ‘6 years + 1’, and then deleted. The Council may retain this information for a longer period of time if required by law. For more information on how the Council will process data and the rights of the Applicant, Legal Owner and Registered Keeper please visit the following website page: https://www.portsmouth.gov.uk/services/council-and-democracy/transparency/data-protection-privacy-notice/
71. If the Applicant wishes to make a complaint in relation to the handling of an Application the Council’s complaints procedure can be accessed through the following link: https://www.portsmouth.gov.uk/services/council-and-democracy/your-say/complaints/
72. If the Applicant has any concerns about the processing of personal data or wishes to pursue any rights under the General Data Protection Regulation, the Data Protection Officer can be contacted by email to DataProtection@portsmouthcc.gov.uk
73. This Grant Agreement will be governed by and construed in accordance with the laws of England and Wales.
74. The courts of England and Wales are to have exclusive jurisdiction to settle any disputes or claims (including non-contractual disputes or claims) that may arise out of or in connection with this Grant Agreement.
75. This Grant Agreement constitutes the entire agreement between the Council and the Applicant and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
76. The Council and the Applicant agree that they will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Grant Agreement. Both the Council and the Applicant agree that it will have no claim for innocent or negligent misrepresentation based on any statement in this Grant Agreement.
77. In the event of any conflict between the terms of the Grant Agreement and any other documents which form part of the Application the terms of the Grant Agreement shall take precedent.
Third Party Rights
78. This Grant Agreement does not and is not intended to confer any contractual benefit on any person pursuant to the terms of the Contracts (Rights of Third Parties) Act 1999.
79. No failure or delay by the Council to exercise any right or remedy under this Grant Agreement shall be construed as a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
80. The Council may terminate this Grant Agreement and any grant payments on giving the Applicant written notice should it be required to do so by financial restraints or for any other reason.
81. The Applicant will respond promptly to all reasonable requests for assistance from the Council to enable compliance with all applicable statutory requirements.
Schedule 1 – Defined Terms
In this Grant Agreement, the following words will have the following meanings:
“Grant Agreement” means these terms and condition of this agreement including all schedules and appendices referred to herein and/or attached hereto including the Application Form and any information submitted to the Council as part of the Application;
“Applicant” means the person applying for CAF Grant under the Clean Air Fund being either the Legal Owner or the Registered Keeper acting with permission of the Legal Owner;
“Application” means the application (including the Application Form) submitted through the Council’s website, including subsequent amendments to information provided by an Applicant made in writing to the Council, and any schedules and documents referred to;
“Application Form” means the form to apply for grant funding to be completed by the Applicant and submitted through the Council’s website;
“Approved Supplier” means an organisation with a Retrofit Solution which is approved by the Clean Vehicle Retrofit Accreditation Scheme (CVRAS) and has that solution listed on the CVRAS website https://energysavingtrust.org.uk/transport/cvras-approved-suppliers);
“Bus” means a M3 category vehicle used for the carriage of passengers, comprising more than eight seats in addition to the driver’s seat, and have a Gross Vehicle Weight of over 5000kg, and is normally (but not exclusively) used for short distance public transport services which is to be retrofitted or purchased/leased under this Grant Agreement;
“Business Day” means any day from Monday to Friday (inclusive) which is not Christmas Day, New Year’s Day, Good Friday or a statutory bank holiday;
“Clean Air Fund” means the Portsmouth City Council initiative which is operating alongside the Charging Clean Air Zone Class B+ ), to financially assist those individuals and businesses most detrimentally negatively affected by the introduction of the CAZ. The Clean Air Fund includes the local distribution of Central Government funding via grants, to assist individuals and businesses to upgrade their Non-Compliant Vehicles, including taxis and private hire vehicles, buses and coaches, and heavy goods vehicles, alongside dedicated stakeholder engagement.
“CAF Grant” means a financial grant provided for the purposes of the Project (providing a financial contribution to a Bus and/or Coach owner/operator in accordance with one of the vehicle upgrade options set out in Schedule 2) and shall be limited to the amount set out in the Grant Approval Letter;
“Clean Air Zone” or “CAZ” means the area in Portsmouth where vehicle owners are required to pay a charge to enter, or move within, a zone if they are driving a vehicle that does not meet the particular standard for their vehicle type in that zone;
“Coach” means a M3 category vehicle used for the carriage of passengers, comprising more than eight seats in addition to the driver’s seat, and have a Gross Vehicle Weight of over 5000kg, and is normally (but not exclusively) used for longer-distance service than buses which is to be retrofitted or purchased/leased under this Grant Agreement;
“Compliant Vehicle” a vehicle (Bus or Coach) which has been retrofitted or purchased/leased under the Project and which meets the standards required of a compliant vehicle for the purposes of a CAF Grant if the vehicle is:
a. a positive ignition vehicle that as a minimum meets the Euro 4 standards for that specific vehicle,
b. a compression ignition vehicle that as a minimum meets the Euro 6 standards for that specific vehicle; or,
c. an Ultra-Low Emissions Vehicle (ULEV).
“Data Protection Legislation” means the Data Protection Act 2018 and Regulation (EU) 2016/679, the General Data Protection Regulation as amended from time to time or any national replacement for such legislation;
“Dealership” means the party selling or leasing the vehicle/s to the Applicant under this Clean Air Fund scheme;
“Eligibility Criteria” means the criteria the Applicant must successfully meet to the Council’s satisfaction to be eligible to participate in the CAF Grant scheme as set out in Schedules 2;
“Euro 4” means the emissions limit values set out in the rows corresponding with Category B in the first of the tables at section 22.214.171.124 of Annex I to Council Directive 70/220/EEC
“Euro 6” means the emissions limit values set out in Table 2 of Annex I to Commission Regulation 715/2007 of 20 June 2007;
“Funding Round” means a period of time set by the Council during which applications can be submitted;
“Grant Approval Letter” means the letter sent by the Council to the Applicant confirming the Applicant is eligible for the CAF Grant in relation to the Clean Air Fund and the process the Applicant needs to follow to receive the funding in accordance with this Grant Agreement;
“Legal Owner” means the natural or a legal person who has legal ownership of the vehicle. This may not necessarily be the Registered Keeper;
“Non-Compliant Vehicle” means a vehicle (Bus or Coach) which fails to meet or exceed the standards required of a Compliant Vehicle and which is to be retrofitted and / or replaced by a Compliant Vehicle;
“Parties” means the Council and the Applicant and “Party” means either of them;
“Personal Data” has the meaning given to it by Data Protection Legislation;
“Prohibited Act” means:-
a) to directly or indirectly offer, promise or give any person working for or engaged by the Council a financial or other advantage to: (i) induce the person to perform improperly a relevant function or activity; or (ii) reward that person for improper performance of a relevant function or activity;
b) to directly or indirectly request, agree to receive or accept any financial or other advantage as an inducement or a reward for improper performance of a relevant function or activity in connection with this agreement;
c) committing any offence under:
1. the Bribery Act 2010; or
2. under sub-section (2) of Section 117 of the Local Government Act 1972; or
3. under legislation or common law concerning fraudulent acts; or
4. defrauding, attempting to defraud or conspiring to defraud the Council; or
5. any activity, practice or conduct which would constitute one of the offences listed in this definition of Prohibited Act, if such activity, practice or conduct had been carried out in the UK.
“Project” means the project to support the upgrade of buses and coaches which are currently Non-Compliant Vehicles within the Clean Air Zone for which the CAF Grant will be used as outlined in this Grant Agreement, selected and applied for by the Applicant and approved by Council.
“Registered Keeper” means the person named in section five of a vehicle’s V5C Registration Document. This may not necessarily be the Legal Owner;
“Retrofit Solution” means a system available from an Approved Supplier which, when installed in a Non-Compliant Vehicle, improves the emissions of that Non-Compliant Vehicle such that the vehicle emissions then meet those required of a Compliant Vehicle.
“Required Information” means documentation evidencing that the required measures to fulfil the requirements of this Grant Agreement and the Grant Approval Letter. This shall include all relevant paperwork, for example supporting invoices, completion documents, schedules of works, receipts, photos, etc. Whether the required documentation shall suffice is at the Council’s absolute discretion;
“Seller” means the party who is selling the vehicle/s to the Applicant under this Clean Air Fund scheme under a private arrangement (i.e. not a Dealership).
“Special Conditions” conditions forming part of this Agreement relating to any contracted services with the Council.
“Ultra-Low Emission Vehicle (ULEV)” means a vehicle that emits less than 75g of carbon dioxide (CO2) for every kilometre travelled.
“V5C Registration Document” means the V5C or vehicle registration certificate registered with the Driver and Vehicle Licensing Agency which contains essential information about a vehicle registered in the UK;
Schedule 2 – CAF Grant
1. This schedule details the two options that collectively comprise the CAF Grant.
Description of the Options
2. Bus and Coach Option 1 (‘Bus & Coach Option 1’) is a grant of up to £15,000 towards the purchase cost or long-term lease of a Bus or Coach that is a Compliant Vehicle. The Council will provide funding of up to £15,000 per approved vehicle if the Applicant is deemed eligible.
3. Bus and Coach Option 2 (‘Bus & Coach Option 2’) is a grant of up to £15,000 towards the costs of a clean vehicle retrofit accreditation scheme (CVRAS) approved Retrofit Solution. The Council will provide funding of up to £15,000 per approved vehicle towards the installation of CVRAS accredited retrofit technology, if the Applicant is deemed eligible for the funding. Vehicles retrofitted with technology that does not meet the requirements of this scheme will not be eligible for funding.
Evidence of Eligibility
4. In order to be eligible for Bus & Coach Options 1 or 2, The Applicant must meet all of the following Eligibility Criteria:
a. Are a business that owns/leases and uses Bus or Coach vehicles which are Non-Compliant Vehicles and which are M3 – GVW over 5000kg and more than 8 seats in addition to the driver;
b. Must have owned or leased the Non-Compliant Vehicle/s for at least 12 months prior to the Application*;
c. Must have been actively trading for more than 12 months and up to February 2020;
d. Must be able to evidence frequency of entry to the proposed Clean Air Zone boundary by the existing Non-Compliant Vehicle/s to be upgraded (average 2 or more days per week), and frequency of entry to the Clean Air Zone by the upgraded Compliant Vehicle/s;
e. Must evidence the sale of any Non-Compliant Vehicle/s that is/are being replaced through this fund; and
f. Have not been in receipt of, are not in the process of applying for, and will not apply for, CAF incentives from another authority.
*Exceptions may be considered for applicants who propose to replace an existing Non-Compliant Vehicle model that cannot be retrofit with a Non-Compliant Vehicle model that can be retrofit, as part of the Project.
5. The Applicant, in order to prove its eligibility for the CAF Grant will need to provide the pieces of evidence detailed in Paragraphs 7 and 8 of this Schedule.
6. Proof of ownership of a Non-Compliant Vehicle which can be evidenced through:
a. The production of an image or a suitable copy of the vehicle’s V5C; and
b. Acceptance of these terms and conditions of this Grant Agreement and the Grant Approval Letter.
7. Proof of use of the CAZ at least 2 days per week on average, by both the old Non-Compliant Vehicle being replaced and the new Compliant Vehicle obtained through this CAF Grant scheme, can be evidenced through:
a. production of a suitable image or copy of any relevant contracts, invoices or receipts held with customer’s which include the destination address, order and date of order; and/or The production of reports generated by on board telematics to monitor performance of the system in real time.
In relation to Bus & Coach Option 1
8. The Applicant will also need to produce the following further evidence once it is available as detailed in Paragraph 10.
9. Proof of the Applicant having purchased, or a long-term lease in place for, a Bus or Coach that is a Compliant Vehicle through:
a. The production of an image or a suitable copy of the vehicle’s V5C; and
b. The production of a receipt of purchase or details of a long-term lease including the vehicle’s details.
10. The Council will make a single payment towards the cost of the purchase or long term lease up to a maximum value of £15,000 against the pre-VAT cost.
11. The Applicant will be responsible for VAT payments for the purchase or lease of the vehicle.
In relation to Bus & Coach Option 2
1. The Applicant will also need to produce further evidence once it is available as detailed in Paragraphs 2 and 3.
2. Proof of the Applicant having a retrofit appointment booked for the vehicles referenced in the Application by the production of a suitable letter or order confirmation including the referenced vehicle details from a CVRAS approved retrofit provider (Approved Supplier).
3. Proof of the Applicant having had a Retrofit Solution installed in a vehicle referenced in the Application through:
a. The production of a suitable document confirming that the retrofit has taken place
b. The production of a supplier’s invoice, statement or receipt detailing the total cost of the Retrofit Solution including the vehicle’s details.
4. The Council will make a single payment towards the cost of the retrofit installation (up to a maximum value of £15,000 per approved vehicle against the pre-VAT cost).
5. The Applicant shall permit any person authorised by the Council such reasonable access to its employees, agents, premises, facilities and records, for the purpose of discussing, monitoring and evaluating the Applicant’s fulfilment of the conditions of this Agreement and shall, if so required, provide appropriate oral or written explanations from them.
6. After the technology is installed, the Applicant must comply with the operating and maintenance requirements (e.g. Adblue refill) of the Retrofit Solution.
7. The Applicant must be willing for retrofitted vehicles to be fitted with on board telematics to monitor performance of the system in real time. The vehicle’s original capability to impose engine de-rate functionality must be retained and system real time NOx reduction performance must be available via an online portal or equivalent in accordance with CVRAS requirements.
8. The Applicant is responsible for VAT payments for the retrofit of a vehicle.
9. If the Applicant is found to be operating the vehicle in a way that does not comply with the manufacturer’s requirements, the Council reserves the right to reclaim the CAF Grant in full.
10. If the Applicant’s vehicle is not eligible for retrofit technology, the Applicant may still purchase a vehicle that is eligible and carry out the retrofit on that vehicle but the cost of the vehicle will not be considered when determining the grant amount.
11. The Applicant also has the option to purchase a vehicle that is already retrofitted, provided it has not already been used by another to secure the funding from the Council or another local government authority. The Applicant will need to provide evidence of the original cost of the retrofit and that it is CVRAS accredited Retrofit Solution.