4 Indoor Environment Management PRESENCE TEST FURTHER INSTRUCTION Does the lease encourage, facilitate or require the parties to monitor and manage their indoor environment? Clauses could relate to: programs and systems to asses and eliminate hazardous materials ensuring that where hazardous materials cannot be eliminated, risks are controlled and minimised storage of hazardous materials. OVERVIEW ADDITIONAL BENEFITS air in the workplace can provide significant health benefits for employees and improve employee efficiency and productivity. The World Green Building Council’s The Business Case for Green Building uses 15 independent studies to evidence up to 11% improvement from good indoor environment.1 Green Star - Performance Air quality data may be used as an input into Green Star – Performance compliance requirements. SAMPLE CLAUSES NOTES CLAUSE CONCERN/RISK MITIGATION none noted 1.1 Quality of indoor air The Landlord and Tenant [will /will use reasonable endeavours to] install monitoring systems to monitor the quality of air, including levels of carbon monoxide, and outdoor air intake to the occupied of the Base Building and Premises. The Landlord and Tenant install provide reports containing details of the indoor air quality of the Base Building or Premises to the other party each [month/quarter]. The Landlord and Tenant [will / will use reasonable endeavours to] reduce pollutants entering the Base Building and Premises. Parties may be concerned with the cost of monitoring indoor air quality. Any of monitoring or improving indoor quality may be justified by studies that show it results in higher levels of employee health, leading to increased attendance at work. CLAUSE CONCERN/RISK MITIGATION
5 Sustainable Utilities PRESENCE TEST FURTHER INSTRUCTION Does the lease encourage, facilitate or require the parties to discuss procurement of more sustainable utilities/offsets or install plant and equipment to enable the generation and of sustainable utilities? Clauses could relate to: on-sale of electricity, gas or water on-sale of certified renewable sources of a utility (eg. Australian GreenPower or NCOS Offsets) installation of renewable energy plant and equipment, cogeneration plant and equipment or embedded energy networks installation of recycled facilities installation of demand management systems. OVERVIEW In the that a building begins to produce its own electricity, gas or water (including recycled water) it is important that tenants are able to purchase this from the landlord under the lease. SAMPLE CLAUSES CLAUSE CONCERN/RISK MITIGATION none noted 1.1 On-sale of Utilities If the Landlord offers to supply any utilities (including water, electricity and gas) to the Tenant: the Tenant may to purchase utilities from the Landlord; the price to be charged for the supply of utilities will be [the maximum allowable amount under applicable legislation / $[insert rate]]; the Landlord [will/will not] impose any charge for access to the Landlord’s internal utility networks; the Tenant must pay the Landlord for the utilities within [insert #] days of the Tenant being billed by the Landlord; and if the Tenant defaults in payment of any account rendered by the Landlord for any utility, the Landlord may (in addition to any other rights) disconnect the supply of the utility. The reasonable cost of the disconnection and of any reconnection of the utility will be payable immediately on demand. Tenants may be concerned that landlords will require them to purchase utilities at a higher cost then they need to pay if obtaining utilities directly from a supplier. This clause is drafted in a way that ensures that tenants will not be required to pay an amount over the market rate available to them. Note: tenants may also be protected from being required to pay more than the available retail market rate by regulation.
NOTES CLAUSE CONCERN/RISK MITIGATION This clause creates a mechanism for the parties to adjust NABERS Ratings where parties have acted in good faith and undertaken reasonable efforts to obtain a Target NABERS Rating. When deciding whether to use this clause, parties should determine their expectations in relation to the other party achieving a NABERS Rating. For example, A tenant moving into a building because it expects the landlord to achieve a Base Building NABERS Rating may not want to to this clause. A landlord may find this clause acceptable if it satisfied that the tenant will use its best endeavours to obtain a Tenancy NABERS Rating. 1.4 Adjusted NABERS Rating If a party reasonably believes that the Target NABERS Rating for which it is responsible cannot be achieved then provided: that party gives written notice to the other party stating the reasons why the Target NABERS Rating cannot be achieved and requesting an Adjusted NABERS Rating (Adjustment Notice); that party has taken all reasonable measures to achieve the Target NABERS Rating; the inability to achieve the Target NABERS Rating is not due to any misrepresentation regarding the condition or capacity or the Building, the Services or the Premises or deterioration in or failure of relevant parts of the Building, the Services or the Premises or to activities in the Building or the Premises; and that or the parties together, has or have exhausted all reasonable avenues to achieve the Target NABERS Rating, the Adjusted NABERS Rating will become the Target NABERS Rating. Once the Adjustment Notice is given, the other party may agree to the request for an Adjusted NABERS Rating in writing within [insert #] days. If the other party does not accept the request for an Adjusted NABERS Rating, or respond within the time period in clause 1.4(b), the request may be referred by either or both parties for resolution by an Expert appointed under the processes in the Lease. none noted none noted
SAMPLE CLAUSES NOTES CLAUSE CONCERN/RISK MITIGATION none noted 1.1 Landlord to comply Subject to clause 1.3 the Landlord [must / must use its reasonable endeavours to] provide and operate the Services at all times in accordance with the higher of the: requirements and standards specified in Schedule [insert Schedule prepared by Landlord] (Operational Performance Standards); and the relevant Australian Standards. [Drafting note - Operational Performance Standards may cover issues such as thermal comfort and lighting levels] The tenant may be concerned that the landlord will operate the building at conditions that are uncomfortable. The tenant should have input into the Operational Performance Standards Schedule. Australian Standards will also protect the tenant against uncomfortable comfort levels. NOTES CLAUSE CONCERN/RISK MITIGATION Metering and monitoring are critical in reducing consumption. This clause enables tenants to obtain the information they need to lower electricity and other costs and improve indoor environment. Clause 1.2(a) - this may include equipment to monitor: carbon dioxide concentrations; air speed; humidity; particulate matter; airborne microbials; or ambient sound levels. 1.2 Monitor Performance With the Landlord’s permission \(which must not be unreasonably withheld), the Tenant may install within the Premises equipment to monitor the Landlord’s compliance with clause 1.1(a). The Landlord must produce to the Tenant, [Tenant/Landlord’s], when requested, the Landlord’s records relating to the operation and performance of the Services including confirmation that the Building’s heating, cooling and ventilation system and Building Management System have been tuned, commissioned and tested for contaminants in accordance with a regular maintenance program. none noted none noted NOTES CLAUSE CONCERN/RISK MITIGATION