DATED____________________________ 2013
KINGSTON UPON HULL CITY COUNCIL (1)
and
# (2)
AGREEMENT FOR THE DEVELOPMENT
of
SELWORTHY CLOSE, HULL
Contract Ref.
YORE – 98DFEM
DOCUMENT D
Kingston upon Hull City Council
The Guildhall
Alfred Gelder Street
Kingston upon Hull
HU1 2AA
Ref: MF/89860-1
CONTENTS
SECTION
HEADING
PAGE
1
INTERPRETATION
4
2
CONDITIONALITY
15
3
THE DEVELOPER'S PLANNING OBLIGATIONS
15
4
THE PROFESSIONAL TEAM, THE BUILDING CONTRACTOR AND
THE SUB-CONTRACTORS
16
5
COMPLETION
19
6
TITLE
19
7
PLANNING AGREEMENTS
20
8
WARRANTY DEEDS
21
9
THE PLANS AND SPECIFICATIONS
22
10
RELEASES AND CONCERNS
22
11
THE DEVELOPMENT
23
12
INSPECTION OF THE DEVELOPMENT
28
13
INSURANCE
29
14
NEW ENCUMBRANCES
30
15
VAT
31
16
LICENCE TO USE PLANS ETC
31
17
DEVELOPER'S LIABILITY
32
18
DEFAULT OF THE DEVELOPER
32
19
CONSTRUCTION INDUSTRY SCHEME
34
20
PROPER LAW
35
21
PROBLEM SOLVING AND DISPUTE RESOLUTION
36
22
NOTICES
39
23
THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
39
24
EXISTING SITE AT DEVELOPER'S RISK
40
25
GENERAL
40
26
STATUTORY POWERS
41
27
FREEDOM OF INFORMATION
41
28
OVERAGE
43
29
BEST VALUE
43
30
STANDARD CONDITIONS
43
31
REGENERATION BENEFITS
45
32
ENVIRONMENTAL PROVISIONS
45
33
DEMOLITION WORKS
34
KEY PERFORMANCE INDICATORS
49
35
THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
49
36
PROGRAMME PROGRESS & OUTPUTS
50
ERROR! BOOKMARK NOT DEFINED.
THE FIRST SCHEDULE - THE TRANSFER
52
THE SECOND SCHEDULE - THE SITE PLAN
53
THE THIRD SCHEDULE – MASTER PROGRAMME
54
THE FOURTH SCHEDULE – KEY PERFORMANCE INDICATORS
55
THE FIFTH SCHEDULE – PLANS AND SPECIFICATIONS
56
THE SIXTH SCHEDULE – DEMOLITION SPECIFICATIONERROR! BOOKMARK NOT DEFINED.
THE SEVENTH SCHEDULE – OVERAGE
57
THE EIGHTH SCHEDULE – OPEN BOOK ACCOUNTING PRINCIPLES
64
THIS AGREEMENT is made on
2013
BETWEEN:
(1)
KINGSTON UPON HULL CITY COUNCIL of the Guildhall, Alfred Gelder Street, Hull
HU1 2AA (the Owner); and
(2)
1
# (company number #)) whose registered office is at # (the Developer)
INTERPRETATION
In this Agreement where the context allows it:
1.1
The following words and expressions shall mean:
Act means the Town and Country Planning Act 1990;
Architect means the reputable architect or architects experienced in
developments of this size and complexity from time to time appointed by the
Developer in relation to the Relevant Building Contract and/or the
Development;
Building Contractor to the extent that any building contractor or contractors
is/are from time to time appointed in relation to the Development means a
building contractor or contractors experienced in a development of this
complexity and type from time to time employed by the Developer under the
Relevant Building Contract approved by the Owner such approval not to be
unreasonably withheld or delayed;
CDM Coordinator means any coordinator or coordinators from time to time
appointed by the Developer in relation to the Development who is of repute and
is experienced in a development of this type;
CDM 2007 means the Construction (Design and Management) Regulations 2007;
CIS the Construction Industry Scheme under the provisions of the Finance Act
2004 Part 3 Chapter 12
Closure Order means Road Closure Order and/or Footpath Diversion Order;
Completion Date 10 Working Days after the satisfaction of the Conditions;
Completion Time means 2.00 pm;
Conditional Period means #;
Conditions means:(a)
the satisfaction of the Road Closure Order Condition and Footpath
Closure Condition in relation to the Development; and
(b)
satisfaction of the Planning Condition.
Customs: H M Revenue and Customs
Delaying Factors means an event of Force Majeure, delay caused by the act
of the Owner and any extension allowed under the terms of any Relevant
Building Contract (save to the extent that the extension arises out of the act or
default of the Developer);
Demolition Works the demolition of any Unit on the Property and of the
Remaining Units;
Demolition Specification means the specification at the Sixth Schedule
Development means the development of the whole of the Property for the
construction of # in accordance with the Plans and Specifications and including
where appropriate, the Infrastructure Works and the Public Amenity Works;
Developer's Solicitors means #;
EIR shall have the meaning prescribed in clause 27
Employer's Representative means any reputable employer's representative or
representatives with experience of developments of this complexity and type from
time to time appointed by the Developer in relation to the Relevant Building
Contract and/or the Development;
Encumbrances means any rights, reservations, covenants (other than
financial , charges and restrictions) and/or all other encumbrances affecting the
Property or any part thereof;
Event of Insolvency means any event where the Developer
(a)
goes into liquidation (other than for the purpose of a solvent
reorganisation)
(b)
enters into a voluntary arrangement or other scheme of arrangement
for the benefit of any of its creditors in satisfaction or compromise of its
debt
(c)
is subject to an application for an administration order (unless the
application is successfully re-opposed) or an administration order
(d)
gives notice of intention to appoint an administrator, is subject to the
filing at court of the prescribed documents in connection with the
appointment of an administrator or has an administrator appointed in
relation to it
(e)
has a receiver or manager or an administrative receiver appointed in
relation to any of its property or income
(f)
is struck-off the Register of Companies or
(g)
otherwise ceases to exist;
Failure to Achieve a Critical KPI means:
(a)
(in relation to Health and Safety as defined in the Key Performance
Indicators) where the accident statistics (as measured by reference to
RIDDOR reported accidents on the Property show:(i)
a score of more than 1 for two consecutive quarters (as
measured according to the scoring/benchmarks referred to in
the Key Performance Indicators); and
(ii)
it can be demonstrated that such score is due to the material
neglect or default of the Developer in failing to meet acceptable
health and safety standards; and
(iii)
the Developer has failed to comply with a remediation action
plan prepared by the Developer and approved by the Owner
(such approval not to be unreasonably withheld or delayed) to
remedy such failures of acceptable health and safety standards;
(b)
(in relation to Environment and Sustainability as defined in the Key
Performance Indicators) where Units on the Property fail to qualify for
the relevant awards or certificates required under paragraph 9.1 to 9.3
of the Fourth Schedule;
Final Certificate means a post-construction certificate issued by an
Employer's Representative confirming that the Units shown on the Plans and
Specification achieved Eco Homes Very Good standard and level five standard
of the Code for Sustainable Homes (or equivalent);
FOIA means Freedom of Information Act 2000 together with any guidance
and/or codes of practice issued by the Information Commissioner in relation to
such legislation;
Footpath Closure Condition the obtaining of a Footpath Diversion Order
which is Immune from Challenge
Footpath Diversion Order means either an order or series of orders pursuant
to Section 247 and/or 257 of the Town and Country Planning Act 1990 or an
order or series of orders pursuant to section 118 or section 119 or (if relevant)
section 116 of the Highways Act 1980 for the stopping up or diversion of a
footpath;
Force Majeure means any one or more of the following:(a)
fire;
(b)
storm or other exceptionally adverse weather condition;
(c)
war hostilities rebellion insurrection military or usurped power or civil
war;
(d)
labour lockout, strikes or other industrial disputes;
(e)
riot, terrorist action, civil commotion or order;
(f)
act of Government;
(g)
non availability of labour and materials or equipment; and
(h)
any other cause or circumstances beyond the reasonable control of the
Developer and/or those under its control
Provided That in relation to part (a) (d) (e) and (g) of such definition such matter
shall only be Force Majeure to the extent that the same have not been caused
or aggravated by the act or omission of the Developer and/or those under its
control;
Immune from Challenge means in respect of the relevant Planning Consent
or Closure Order:(a)
any challenge period with regard to any decision (including but not
limited to a decision upon appeal or by a Court or pursuant to any
application or appeal under Section 73 of the Act) has expired without
judicial proceedings being initiated;
(b)
all judicial proceedings initiated within any challenge period have been
finally determined (meaning the later of (i) the date a court has made a
decision upon those proceedings and no further appeal to a higher court
has been or can be made or (ii) the date the judicial proceedings have
been withdrawn without remission to the local planning authority or the
Secretary of State; and
(c)
where judicial proceedings have been fully determined (as above
defined) and the planning application the subject of those proceedings
has been remitted to the local planning authority or the Secretary of
State it or he has made a decision with regard to such matters so
remitted; or
(d)
any challenge period with regard to a Closure Order having expired
without judicial proceedings being initiated; and
(e)
all such proceedings initiated within any challenge period having been
finally determined (meaning no further judicial proceedings or appeal
can be made);
Infrastructure Works means those works contained within the Plans and
Specifications as the parties agree or it is determined constitute the
Infrastructure Works for the purposes of this Agreement;
Initial Certificate means a design stage certificate issued by an authorised
assessor confirming that the Units shown on the Plans and Specification will
achieve Building for Life (Silver) Standard and will achieve a level 5 standard of
the Code for Sustainable Homes (or equivalent);
Intellectual Property means any or all of the following: patents, trade marks,
service marks, drawings, designs, registered designs, utility models, design
right, copyright (including copyright in computer software), database rights,
inventions, trade secrets and other confidential information, technical
information, know-how, business or trade names, rights to prevent passing off,
and all other intellectual property rights and rights of a similar or corresponding
nature in any part of the world, whether registered or not or capable of
registration or not and including all applications and the right to apply for any of
the foregoing rights;
Interest Rate means four per cent above the base rate from time to time of
National Westminster Bank plc;
Key Performance Indicators the key performance indicators attached at the
Fourth Schedule or such other Key Performance Indicators as agreed by the
parties;
Landscape Architect means the reputable landscape architect or architects
experienced in developments of this size and complexity from time to time
appointed by the Developer in relation to the Relevant Building Contract and/or
the Development;
Master Programme means the master programme for both build and renting of
the Development attached at the Third Schedule of this Agreement;
Material Operation has the same meaning as defined in Section 56(4) of the
Act but shall exclude:
(a)
any site investigation survey or assessment;
(b)
any preparatory works to enable commencement of construction of the
Property or any part of it including (but not limited to) any works of
demolition and/or remediation and/or infrastructure;
(c)
the erection of fencing site compounds and/or site offices;
(d)
the digging of a trench which is to contain the foundations or part of the
foundations of a building;
(e)
laying of any underground mains or pipes to the foundations or part of
the foundations of a building or through any such trench as is
mentioned in paragraph (d) above; or
(f)
any operation in the course of laying out or constructing a road or part
of a road (but the construction of a whole road shall constitute a
Material Operation);
Mechanical and Electrical Engineer means any mechanical and electrical
engineer or engineers from time to time appointed by the Developer in relation
to the Relevant Building Contract and/or the Development provided that such
other mechanical and electrical engineer or engineers are reputable and
experienced in undertaking a development in the nature of the Development;
Monitoring Surveyor means any suitably qualified surveyor, architect or other
appropriate person from time to time being retained by the Owner in connection
with the Development whose identity and contact details shall be notified to the
Developer by the Owner;
NHBC Certificate: means a final certificate (known as a "CML Certificate")
issued by the National House Building Council confirming that in its opinion the
relevant dwelling or dwellings have been constructed in accordance with the
National House Building Council's technical requirements and with the Building
Regulations;
Owners Condition means the obtaining of the Secretary of States consent
where required under the Local Government Act 1989, under Section 123 of
the Local Government Act 1972 and under Section 25 and 32 of the Housing
Act 1985 and/or any other consents required at law for the Owner to transfer
the Property or any part thereof to the Developer;
Owner's Solicitors means the Town Clerk’s Service, Kingston upon Hull City
Council, the Guildhall, Alfred Gelder Street, Hull, HU1 2AA (ref: 89860-1);
Planning Acts means the Town and Country Planning Act 1990, the Planning
(Listed Buildings and Conservation Areas) Act 1990, the Listed Buildings Act
1990, the Planning (Hazardous Substances) Act 1990, the Planning
(Consequential Provisions) Act 1990, the Planning and Compensation Act
1991, the Planning and Compulsory Purchase Act 2004 and any other or
subsequent legislation of a similar nature;
Planning Agreement an agreement or unilateral undertaking in respect of all
or part of the Property under Section 106 and 106A of the Act or Section 111
Local Government Act 1972 which is necessary for the grant or implementation
of a Satisfactory Planning Permission;
Planning Condition means the Satisfactory Planning Permission in respect of
the Development becoming Immune from Challenge;
Planning Consent any consent or approval granted pursuant to the planning
application # submitted to the Owner as Local Planning Authority;
Planning Obligation means a statutory obligation that is necessary for or
assists in the carrying out of the Development including (without limitation) an
obligation under section 106 of the Town and Country Planning Act 1990,
section 38 or 278 of the Highways Act 1980 or section 104 of the Water
Industry Act 1991;
Plans and Specifications means the plans and specifications annexed at the
Fifth Schedule for the Development (as appropriate) as may be varied pursuant
to clause 9.2;
Prescribed Manner shall have the meaning given to in clause 30;
President means the President of the Royal Institution of Chartered Surveyors
or a person acting on his behalf;
Price means #;
Professional Team means any Architect, Employer's Representative, Quantity
Surveyor, Mechanical and Electrical Engineer, Structural Engineer and CDM
Co-ordinator Supervisor and any other professional or other similar advisor
from time to time appointed by the Developer or the Building Contractor in
relation to the Relevant Building Contract and/or the Development;
Property means the land edged red on the plan attached at the Second
Schedule of this Agreement;
Public Amenity Works means those parts of the Plans and Specification
identified as public amenity works);
Quantity Surveyor means any quantity surveyor from time to time being
appointed by the Developer in relation to the Relevant Building Contract and/or
the Development who is reputable and experienced in development of this
type;
Relevant Building Contract means any building contract or contracts entered
into or procured by the Developer as a deed in respect of the Development in
the form and on terms
approved by the Owner such approval not to be
unreasonably withheld or delayed (but incorporating defects liability period of
one year;)
Request for Information shall have the meaning set out in FOIA or any
apparent request for information under FOIA or EIR;
Requisite Consents means all planning permissions, listed building consents,
building regulation consents and all other statutory and non-statutory consents
required from any body or third party to lawfully carry out, retain and use the
Development;
Road Closure Order means either:(a)
an order or series of orders to be made by the Secretary of State under
Section 247 of the Act; or
(b)
an order or series of orders under Section 116 of the Highways Act for
the stopping up or diversion or extinguishment of the highways within
the Property;
Road Closure Order Condition means the obtaining of a Road Closure Order
and it becoming Immune from Challenge;
Satisfactory Planning Permission means a planning permission together with
all associated Planning Obligations which in each case and when taken
together are acceptable to the Developer acting reasonably;
Senior Representatives shall mean any director or senior executive officer of
the Developer or the Owner respectively;
Statutory Agreement means any agreement or unilateral undertaking in
respect of or affecting the Property under section 106 of the Town and Country
Planning Act 1990, section 33 of the Local Government (Miscellaneous
Provisions) Act 1982, section 38 and/or section 278 of the Highways Act 1980,
section 104 of the Water Industry Act 1991 or, in each case, any provision to
similar intent, any agreement with any appropriate company, authority or body
concerning a water supply to or drainage from the Property, any agreement
with any appropriate company, authority or body relating to any other services
to or from the Property, or any access serving the Property, and any other
agreement with any appropriate company, authority or body which is required
or desirable to carry out, retain and use the Development;
the Standard Conditions: the Standard Commercial Property Conditions
(Second Edition);
Structural Engineer means any structural engineer or engineers experienced
in development of this complexity and type from time to time appointed by the
Developer in relation to the Relevant Building Contract and/or the
Development;
Sub-Contractor means any sub-contractor engaged by the Relevant Building
Contractor in relation to the material design or construction of the Development;
Surveyor: means any expert appointed to determine any dispute in
accordance with the provisions of this Agreement;
Termination Date means #;
Transfer means the transfer in the form annexed at the First Schedule;
Unit means a flat or flats or apartment or apartments or house or houses or
dwelling or dwellings;
Utilities means data transmission, drainage, electricity, energy of any other
type, gas, telephone, water and all other services;
VAT means Value Added Tax or any tax of a similar nature which may be
substituted for or levied in addition to it;
Warranty Deeds means warranty deeds with step in rights in favour of the
Owner which are assignable twice without the consent of the warrantor from:
(a)
the Professional Team in the
form approved by the Owner such
approval not to be unreasonably withheld or delayed;
(b)
the Building Contractor in the
form approved by the Owner such
approval not to be unreasonably withheld or delayed; and
(c)
each Sub-Contractor in the form approved by the Owner such approval
not to be unreasonably withheld or delayed
in each case with any amendments reasonably requested by the relevant
warrantor or their insurers and approved by the Owner, such approval not to be
unreasonably withheld or delayed;
Working Day means any day which is not a Saturday or a Sunday or
Christmas Day, boxing day, Good Friday or a statutory bank holiday in England
and Wales.
1.2
Any reference to any statute includes:
1.2.1
any amendment, modification, extension or re-enactment of it at any
time;
1.2.2
all instruments, orders, plans, regulations, permissions, directions and
any other form of subsidiary legislation at any time made, issued or
given under or drawing validity from any statute; and
1.2.3
all European Union law, directives and regulations.
1.3
Any reference to any form of legal entity includes all other forms of legal entity.
1.4
Obligations by more than one person are joint and several and where any party
to this Agreement is more than one person references to that party are to each
person individually as well as jointly with the others comprising that party.
1.5
Any obligation not to do anything constitutes an obligation not to do it, allow it or
suffer it to be done.
1.6
The clause headings in this Agreement are for reference only and are not to be
taken into account in its construction or interpretation.
1.7
It is hereby agreed and declared that the Owner is entering into this Agreement
in its capacity as landowner only and not further or otherwise.
1.8
References to a clause, paragraph, schedule or annex shall be to a clause,
paragraph, schedule or annex to this Agreement and reference to a paragraph
shall be to a paragraph of the relevant schedule or the relevant part of the
relevant schedule.
2
CONDITIONALITY
2.1
The completion of the sale and purchase of the Property is conditional on the
Conditions being satisfied in accordance with this Agreement.
2.2
If this Agreement does not become unconditional within the Conditional Period
either the Owner or the Developer may terminate it at any time afterwards by
giving 10 Working Days' written notice to the other provided that:2.2.1
any termination is without prejudice to any claim by any party
in
respect of any earlier breach of this Agreement; and
2.2.2
at the date of service of the written notice this Agreement has not
become unconditional.
2.3
The Developer shall use reasonable endeavours to procure satisfaction of the
Conditions as soon as reasonably practicable.
2.4
The Developer shall be entitled to waive the Road Closure Condition and/or the
Footpath Diversion Condition and/ or the Planning Condition by the service of
written notice on the Owner and upon service of such notice the Condition shall
be deemed to have been satisfied.
3
THE DEVELOPER'S PLANNING OBLIGATIONS
3.1
The Developer shall not make any alteration or variation to the Satisfactory
Planning Permission or submit a new or revised planning application relating to
the Property without prior written consent of the Owner (such consent not to be
unreasonably withheld or delayed Provided Always that it shall be deemed to
be reasonable for the Owner to withhold consent if in the Owners reasonable
opinion such alterations or variations or revised planning application does not
accord with the Owner’s objectives for regeneration of the area) and if the
Owner consents to such alteration or variation the Owner will at the reasonable
cost of the Developer co-operate with the Developer and use their reasonable
endeavours to assist the Developer in obtaining the relevant alteration or
variation to the Satisfactory Planning Permission.
3.2
In this clause 3 the Owner shall notify the Developer in writing whether or not it
approves or refuses its approval to the relevant application within ten Working
Days (save where the Owner acting reasonably requires further information
clarification or documentation to determine the application in which case the
Owner shall notify the Developer within ten Working Days of receipt of the
application and shall upon receipt of such information, clarification or
documentation notify the Developer in writing whether or not it approves or
refuses its approval to the relevant application within five Working Days of the
receipt of the relevant information clarification or documentation) and if the
Owner does not within such relevant period confirm whether it approves or
refuses such application then the consent of the Owner shall be deemed to
have been granted.
3.3
In the event that the Owner exercises its option in the Transfer to buy back the
whole or any part of the Property which has not been developed in accordance
with the provisions of this clause either party shall be able to on completion of
such transfer to terminate this Development Agreement in relation to the land
the subject of the Transfer back to the Owner by service of written notice upon
the other party
Any termination pursuant to clause 3.3 is to be without prejudice to the
antecedent rights of either party and for the avoidance of doubt the Agreement
shall continue and remain applicable in relation to any relevant part or parts of
the Property in relation to which Development has commenced save to the
extent that the Development Agreement has been lawfully terminated in
accordance with clause 18 of this Agreement.
4
THE PROFESSIONAL TEAM, THE BUILDING CONTRACTOR AND THE SUBCONTRACTORS
4.1
The Developer or the Building Contractor shall enter into appropriate
arrangements with NHBC or such other body approved by the Owner such
approval not to be unreasonably withheld or delayed in writing in respect of
Buildmark Guarantee or equivalent in compliance with the Council for Mortgage
Lenders Requirements relating to individual units in the Development; and
4.2
The appointment of the Professional Team (whether appointed by the
Developer or the Building Contractor), the employment of the Building
Contractor and the Sub-Contractors shall (to the extent that a Building
Contractor, Sub-Contractors and/or the Professionals comprising of the
Professional Team are from time to time engaged
by the Developer and
without obligation whether under this sub clause 4.2 or otherwise
on the
Developer to engage any Building Contractor, Sub-contractor, and/or member
of the Professional Team provided that the provisions of this clause shall apply
if any of the aforementioned are engaged at any time) only be made after:
4.2.1
due enquiry as to their respective repute, competence and suitability
with respect to the Development; and
4.2.2
the approval by the Owner of the terms and forms of their appointment
or employment, such approval not to be unreasonably withheld or
delayed.
4.3
The Developer shall ensure that on any appointment of any member of the
Professional Team (whether appointed by the Developer or the Building
Contractor), the Relevant Building Contract and every Sub-Contractor provides
that the party concerned will maintain professional indemnity cover with a
reputable insurer throughout the period that it retains liability for breach of the
terms of its appointment or engagement of at least £5 million on an each and
every claim basis.
4.4
The Developer shall ensure that before any appointment each member of the
Professional Team (whether appointed by the Developer or the Building
Contractor), the Building Contractor and every Sub-Contractor produces details
of its professional indemnity insurance to the Owner.
4.5
After the appointment of any member of the Professional Team (whether
appointed by the Developer or the Building Contractor), the employment of the
Building Contractor and the employment of any Sub-Contractor the Developer
will not materially vary or terminate (and will ensure that the Building Contractor
will not materially vary or terminate) any appointment or employment to the
detriment of the Owner without the consent of the Owner, such consent not to
be unreasonably withheld or delayed.
4.6
Immediately after the appointment of any and each member of the Professional
Team (whether appointed by the Developer or the Building Contractor), the
employment of the Building Contractor and the employment of any SubContractor the Owner shall supply the Developer with full certified copies of the
documents involved.
4.7
The Developer shall:
4.7.1
take all reasonably practicable steps to procure the proper
performance of the obligations of each member of the Professional
Team employed by it and take all reasonably practicable steps to
ensure that the Building Contractor does the same in respect of each
member of the Professional Team and the Sub-Contractors employed
by it;
4.7.2
take all reasonably practicable steps to procure the proper
performance of the obligations of the Building Contractor;
4.7.3
not waive, release or vary or estop itself from enforcing or seeking
redress for any obligation of any member of the Professional Team
(whether appointed by the Developer or the Building Contractor), the
Building Contractor or any Sub-Contractor without the Owner's
consent, such consent not to be unreasonably withheld or delayed
Provided That for the avoidance of doubt the Owner shall be entitled to
refuse consent to any variation which would materially reduce the
relevant professional or contractors' liability in relation to the
Development and/or which would or would be likely to increase
materially the cost of the Development delay completion of the
Development and/or reduce the market rent or sales value and/or open
market value of the Property;
4.7.4
knowingly not do anything which would entitle any member of the
Professional Team (whether appointed by the Developer or the
Building Contractor), the Building Contractor or any Sub-Contractor to
treat their appointment or employment as terminated by breach.
4.8
The Developer shall procure that in the event of a replacement of the Building
Contractor, any member of the Professional Team or any Sub-contractor that
the provisions of this clause 4 are complied with in full in relation to any such
replacement
5
COMPLETION
5.1
The Owner will within ten Working Days of satisfaction of all of the Conditions
transfer the Property to the Developer.
5.2
On the Completion Date the Owner will transfer in the form of the Transfer the
Property and the Developer shall pay to the Owner the Price
5.3
The Owner will transfer the Property with full title guarantee save that the
operation of sub-section 3(1) of the Law of Property (Miscellaneous Provisions)
Act 1994 shall not extend as mentioned in sub-section 3(2)
5.4
The transfer for the Property and any part thereof shall be subject to the
Standard Conditions of Sale.
5.5
Completion of the Transfer shall take place before the Completion Time on the
Completion Date at the offices of the Owners' Solicitors or such location within
England and Wales as they direct.
5.6
All monies due to the Owner under this Agreement are to be paid by direct
credit to the Owner's Solicitors bank account from the Developers Solicitors
bank account and shall be deemed to be received by the Owner's Solicitors
only when they are received by the Owner's Solicitors bank.
6
TITLE
6.1
The Property or part or parts of it are transferred subject to such of the following
matters as relate to or affect them:
6.1.1
All matters capable of registration in registers open to public inspection
(including the Register of Local Land Charges) whether or not so
registered.
6.1.2
Any notice, order, proposal or requirement of any local or other duly
constituted authority whether made before or after the date of this
Agreement.
6.1.3
Everything disclosed or reasonably expected to be disclosed by
searches and as a result of enquiries, whether formal or informal and
whether made in person or in writing by or on behalf of the Developer
or which a prudent Developer ought reasonably be expected to make.
6.1.4
All actual or proposed charges, notices, orders, restrictions and other
matters arising under the Planning Acts.
6.1.5
All easements, profits, quasi-easements, liabilities, public or private
rights, exceptions, reservations, restrictions, covenants, conditions and
agreements affecting the Property and any liability attaching to the
Property or its owner or occupier to carry out work to or to contribute to
the cost of any work on any roads, driveways, passageways, sewers,
drains, fences or other items of any type at all used or enjoyed by the
Property.
6.1.6
any unregistered interests which fall within any of the paragraphs of
Schedule 3 of the Land Registration Act 2002; and
6.1.7
such unregistered interests as may affect the Property to the extent
and for so long as they are preserved by the transitional provisions of
Schedule 12 of the Land Registration Act 2002.
6.2
Title to the Property having been deducted to the Developer before the date of
this Agreement the Developer accepts title to the Property and shall not
thereafter be entitled to raise any enquiry objection requisition
7
PLANNING AGREEMENTS
If a Planning Agreement is required to secure or implement a Satisfactory Planning
Permission the Developer shall negotiate agree and enter into any requisite Planning
Agreement unless the Planning Agreement contains a condition which it would not be
reasonable for a developer to accept in the circumstances and the Developer shall use
all reasonable endeavours to secure a Planning Agreement which does not contain a
condition which it would not be reasonable
for a developer to accept in the
circumstances and the Owner shall, at its own cost, as soon as reasonably practicable,
execute and complete it at the Developer's direction Provided That:
7.1
Its terms are approved by the Owner, such approval not to be unreasonably
withheld or delayed provided that the consent of the Owner is assumed if the
Owner has not confirmed in writing to the Developer whether or not it approves
the terms within fifteen Working Days.
7.2
The Planning Agreement provides that:
7.2.1
It does not come into force until the implementation of the
Planning
Consent.
7.2.2
The Owner has no liability under it after it parts with its interest in the
Property.
7.3
The Developer simultaneously with the completion of the Planning Agreement
(if any) provide the Owner with an indemnity in respect of the Owner's
obligations and liabilities under the relevant Planning Agreement in relation to
the Property in the form the Owner reasonably requires and enter into a deed of
indemnity with the Owner simultaneously with the completion of the Planning
Agreement in respect of the Owners obligations and liabilities under it in a form.
7.4
The Developer confirms to the Owner before the completion of the Planning
Agreement that where there is an agreed form of Planning Consent annexed to
the Planning Agreement and subject to the Planning Consent being issued by
the local planning authority in that form or in a form not materially less
detrimental to the Developer the Planning Consent will constitute a Satisfactory
Planning Permission .
8
WARRANTY DEEDS
8.1
The Developer shall ensure that:
8.1.1
each member of the Professional Team appointed (whether appointed
by the Developer or the Building Contractor);
8.1.2
any Building Contractor; and
8.1.3
each Sub-Contractor
enters into and delivers to the Owner a Warranty Deed as soon as reasonably
possible after its appointment or employment and in all cases before the
relevant member of the Professional Team, the Building Contractor or Subcontractor commences any works.
8.2
If any member of the Professional Team, the Building Contractor or any SubContractor is replaced the Developer shall ensure that the replacement enters
into and delivers to the Owner a Warranty Deed as soon as reasonably
possible after its appointment or employment and in all cases before the date
the relevant professional commences work on the Property.
9
THE PLANS AND SPECIFICATIONS
9.1
The Developer may without the Owner's previous written approval make minor
non-material alterations to the Plans and Specifications.
9.2
The Developer may with the Owner's previous written approval in each case,
not to be unreasonably withheld or delayed), make material alterations to the
Plans and Specifications in order to obtain a Satisfactory Planning Permission
or substitute any materials referred to in the Plans and Specifications with
materials of an equivalent or superior standard Provided Always That it shall be
deemed to be reasonable for the Owner to withhold its consent if in its
reasonable opinion the alteration addition or omission does not accord with
Owner's objectives for the regeneration of the area;
9.3
The Developer will keep the Owner supplied with details of any material
alterations or any material substitution of materials.
10
RELEASES AND CONCERNS
10.1
The Developer will at its own cost obtain and negotiate the terms of:
10.1.1
any agreement or other document required for the release of any
Encumbrances to the extent that the Encumbrances would be infringed
by the Development or would prevent or impede the lawful carrying out
or progress of the Development or its retention and use;
10.1.2
any agreement or other document required for the grant of any
easement or other right which is required or desirable in order to
lawfully carry out, retain and use the Development
10.2
The Owner will enter into any agreement or other document referred to in
clause 12.1 as owner of the Property if its terms have first been approved by
the Owner (such approval not to be unreasonably withheld or delayed) and the
Developer will enter into any such agreement or other document to undertake
all obligations contained in it in respect of the carrying out of the Development
and the Developer
will joint and severally indemnify the Owner against all
actions, proceedings, costs, claims, demands, damages, losses, liability,
charges, penalties, fines, fees and expenses of any type arising out of, by
reason of any breach by the Developer of those obligations.
10.3
The Developer will at its own cost apply for and use all reasonable endeavours
to obtain any order required to obtain any necessary Road Closure Order or
Footpath Diversion Order or other necessary consent licence, permission or
approval including without prejudice to the generality of the foregoing the
closure of any public open space to the extent that they may be required or
desirable for the carrying out of the Development and the Owner will at its own
cost provide such assistance that the Developer reasonably requires to assist
the Developer in complying with the obligation in this clause 10.
11
THE DEVELOPMENT
11.1
The Developer warrants and represents to the Owner that the Developer will
use the standard of skill and care reasonably to be expected of a competent
Developer experienced in works of a similar size, scope and complexity to the
Development in the co-ordination, management and supervision of the Building
Contractor and the Professional Team and the selection and preparation of any
relevant materials, methods of use, performance specifications and/or
requirements.
11.2
The Developer will not commence the Development until the Initial Certificate
has been issued and will commence the Infrastructure Works by # and
Development by # and will carry out or procure that the Development is carried
out:
11.2.1
in a good and workmanlike manner;
11.2.2
in accordance with good building practice;
11.2.3
with good quality materials in accordance with British Standards and
Codes of Practice and/or any other relevant regulations, including the
following building and other standards:-
(a)
Secured by Design principles
(b)
Sustainable Homes minimum of level 5
(c)
Building for Life (minimum of level Silver) Standard/ Creating
Places
11.2.4
in accordance with the Plans and Specifications;
11.2.5
in accordance with the Requisite Consents;
11.2.6
in accordance with the CDM Regulations;
11.2.7
without any actionable infringement of any Encumbrances;
11.2.8
in accordance with any relevant Statutory Agreement and/or any other
relevant agreement or document entered into in accordance with this
Agreement;
11.2.9
as soon as reasonably practicable and in any event completed by the
Termination Date unless the Developer is prevented from doing so by
Delaying Factors when the Developer will be allowed an extension of
time certified by the Developer as being reasonable and agreed in
writing by the Monitoring Surveyor, such agreement not to be
unreasonably withheld or delayed;
11.2.10 so as to procure a copy of a Final Certificate and a copy of an NHBC
Certificate is sent to the Owner in respect of all of the Units on the
Property;
11.2.11 in accordance with the Master Programme but provided that in the
event that the Termination Date is extended in accordance with the
definition of the Termination Date the relevant dates under the Master
Programme shall be similarly extended;
11.2.12 so the Infrastructure Works are completed on or before a date which is
# from the date of the Agreement to adoptable standards as certified
by a joint surveyor appointed by the Owner or the Developer for this
purpose appointed by the President for the time being of the Royal
Institution of Chartered Surveyors on application of either party and
these fees shall be borne as the joint surveyor directs and in the
absence of direction as borne by the parties in equal shares
11.3
The Developer will ensure that
11.3.1
the materials specified for use or incorporation in the Development are
or will be in accordance with British Standards and Codes of Practice
and/or any other relevant regulations from time to time; and
11.3.2
that no materials or method of use generally known to be deleterious
to health and safety, to the integrity of buildings or other structures or
plant or machinery or not in accordance with good building practice will
be specified for use or incorporation in the Development and that it will
not authorise any of them to be used.
11.4
The Developer will ensure that during the carrying out of the Development:
11.4.1
the Property is at all times secured as well as reasonably practicable
against unauthorised entry and that any trespassers who do gain entry
to the Property are lawfully removed as soon as can be reasonably
achieved;
11.4.2
no advertisements, posters, placards or signs are fixed to or displayed
from or on the boundaries of the Property (other than those giving the
names of and the roles played by the members of the Professional
Team, the Building Contractor and any other person engaged in
connection with the Development and inoffensive sale boards) without
the Owner's written consent, such consent not to be unreasonably
withheld or delayed;
11.4.3
the Property is kept reasonably tidy and properly cleared of surplus
materials, rubble, rubbish or waste and that no goods or materials are
deposited or stored on it which are not required within a reasonable
time for the carrying out of the Development;
11.4.4
proper provision is made for the support and use of any land, walls,
buildings, roads, and footpaths adjacent or near to the Property and
which are affected by the Development;
11.4.5
any unsatisfactory or unsuitable materials used in the Development
are replaced and any defective workmanship in the Development is
remedied whether or not at the request of the Owner or the Monitoring
Surveyor;
11.4.6
proper arrangements are made with the appropriate supply companies
for the provision of all water, gas, electricity, telephone and other
services required for the carrying out of the Development;
11.4.7
all necessary safety and other measures are taken to prevent damage
or injury to any person or property and that any nuisance or
disturbance caused to any owner or occupier of any nearby property is
kept to a minimum;
11.4.8
the Owner is notified immediately if any articles of value or of historic
or prehistoric interest are discovered during the Development and
(subject to the rights of the Crown) the Owner will have the sole
property in any such articles and they shall be dealt with as the Owner
shall direct.
11.5
The Developer will keep the Owner informed of:
11.5.1
all material measures taken and stages reached by the Developer in
performing its obligations;
11.5.2
the progress of the Development;
11.5.3
any material problems or delays affecting the Development
and will promptly supply to the Owner any information or documentation
reasonably requested by the Owner.
11.6
In respect of CDM 2007 the Developer will:11.6.1
Before starting work on any relevant Development elect to be the
primary client under the CDM 2007 in respect of the relevant
Development and will promptly supply the Owner with a copy of its
election.
11.6.2
Where the Development is notifiable under the CDM 2007, procure
that the Health & Safety Executive is properly notified and promptly
supply the Owner with a copy of the acknowledgement received from
the Health & Safety Executive.
11.6.3
Comply with the client's obligations under the CDM 2007, ensure that
any CDM Co-ordinator and any Building Contractor comply with their
respective obligations under the CDM 2007, liaise with any CDM Coordinator to allow any CDM Co-ordinator to assist the Developer in
performing the Developer's duties as client under the CDM 2007 and
to indemnify the Owner against all actions, claims, proceedings, costs,
expenses, demands and losses made against or incurred by the
Owner as a result of any failure by it to comply with this clause.
11.6.4
Ensure that the health and safety file in respect of the Development is
prepared as required by and in accordance with the CDM 2007,
ensure that copyright licences are obtained so that all the material in
the health and safety file may be copied and used freely and to keep it
or any completed parts of it available for inspection by the Owner
where such inspection is reasonably required by the Owner and
everyone authorised by the Owner and to provide copies of it to the
Owner and such person on request.
11.7
The Developer shall be responsible for and indemnify the Owner against all
actions, proceedings, costs, claims, demands, damages, losses, liability,
charges, penalties, fines, fees and expenses of any type arising out of, by
reason of or incidental to any injury, damage or accident to any person or
property or any breach of, interference with or disturbance to any Encumbrance
or arising from the carrying out of the Development or through the negligent or
other wrongful act or default of the Developer, the Building Contractor, the
Professional Team, any Sub-Contractor or other sub-contractor or any other
person involved in the Development other than the Owner and/or its agents.
11.8
The Developer shall procure the adoption of the Infrastructure Works as soon
as practicable without delay and shall enter into any agreement necessary for
the adoption of the Infrastructure Works and where necessary to procure such
adoption the Owner as estate owner shall as soon as reasonably practicable
execute and complete any such agreement at the Developer's cost provided
that:-
11.8.1
its terms are approved in writing by the Owner (such approval not to be
unreasonably withheld or delayed) and in the event that Owner does
not confirm its approval or refusal of such terms within fifteen Working
Days the Owner's approval shall be deemed to have been granted;
11.8.2
the Owner is indemnified by the Developer and the Building Contractor
in respect of any obligations and liabilities under the Agreement.
11.9
The Developer shall ensure that on completion of a Unit or Units the Owner is
supplied with a copy of the Final Certificate and an NHBC Certificate in respect
of the Unit or Units so completed and within 10 Working Days of such
completion receives copies of the same.
12
INSPECTION OF THE DEVELOPMENT
12.1
The Owner and the Monitoring Surveyor may during the undertaking of the
Development enter the Property at all reasonable times to inspect the
Development and the materials used in it and may if it reasonably suspects a
breach of the obligations under this Development Agreement break open
and/or carry out tests on any part of the Development, any damage caused
being rectified at the Owner's cost if no breach of this Agreement is found but
otherwise at the Developer's cost.
12.2
In exercising their rights under clause 12.1 the Owner and the Monitoring
Surveyor will cause as little obstruction or delay to the progress of the
Development as reasonably practicable observe all health and safety
requirements for such entry and will not issue any instruction to the Contractor
or the Professional Team but will address any requirements, comments or
complaints to the Developer.
12.3
The Developer will
procure that the Employer's Representative pays due
regard to the reasonable requirements of the Owner and/or the Monitoring
Surveyor during the course of the Development so far as those requirements
are consistent with this Agreement.
12.4
Pending completion of any relevant part of the Development if the Owner shall
at any time properly give the Developer written notice of any non-observance or
non-performance by the Developer of any agreements covenants or obligations
contained in this Agreement then the Developer shall remedy the same as soon
as reasonably practicable or forthwith in the case of emergency and shall
ensure that all such works are diligently and expeditiously carried out without
any delay or interruption in so far as reasonably possible.
12.5
Provided that the Owner has given the Developer written notice under this
Agreement
and allowed the Developer a reasonable period to remedy the
breach, upon default by the Developer in remedying any non-observance or
non-performance or any delay, suspension or interruption to the same the
Owner may (but shall not be obliged to) enter upon the Property or any part
thereof for the purpose of repairing and maintaining the Property and/or the
Development and/or removing substantiated defective works or any works or
items which contravene the terms of this Agreement or for the purpose of
remedying such default by the Developer of any obligations contained in this
Agreement and all reasonable costs and expenses in so doing shall be paid by
the Developer to the Owner within twenty eight days of written demand as a
liquidated debt together with interest thereon at the Interest Rate from the date
which is twenty eight days from the date of expenditure until the date of Actual
Payment.
13
INSURANCE
13.1
The Developer will at all times from the date of this Agreement insure and keep
insured the Development in its full reinstatement value for the time being and all
unfixed goods and materials in connection with the Development in their full
replacement cost for the time being under an 'All Risks' policy of insurance
(including damage caused by terrorism) with the Owner noted specifically on
the policy on terms and in an insurance office of repute approved by the Owner,
such approval not to be unreasonably withheld or delayed.
13.2
At the reasonable written request of the Owner (but no more than once in every
12 month period) the Developer will produce evidence of such insurance and of
the payment of the last premium.
13.3
The Developer will not do anything which may prejudice any policy of insurance
for the time being in force in respect of any nearby or adjoining premises or
which may result in such insurance becoming void or voidable or the rate of
premium under such insurance being increased.
13.4
The Developer will at all times comply with all requirements of the insurers of
the Development.
13.5
Where the Developer fails to insure or defaults in insuring the Development as
provided for in this Agreement the Owner shall be entitled to insure the
Development at the expense of the Developer and such proper sums shall be
payable by the Developer to the Owner within 7 days of demand.
13.6
If the Development or any part of it is destroyed or damaged the Developer will
promptly make the appropriate insurance claim and obtain the maximum
payment of insurance monies as soon as reasonably practicable with all monies
received being paid to and held by the Landlord pending the rebuilding, repair
or reinstatement of the Development in accordance with this Agreement.
13.7
The Developer will (subject to all necessary consents being obtained which the
Developer shall use reasonable endeavours to procure with all expedition)
diligently and expeditiously to rebuild, repair or otherwise reinstate the
Development as appropriate in a good and substantial manner in accordance
with the provisions of this Agreement and if the insurance monies received are
insufficient for that purpose the Tenant shall make up the deficiency out of its
own monies and (without affecting the generality of this clause) the Developer
shall ensure that the rebuilding and/or reinstatement or repair of the
Development starts as soon as reasonably practicable after the date of
destruction or damage and does not stop until the Development is rebuilt and
reinstated in accordance with this Agreement.
13.8
The Developer will not vary or authorise any variation of insurance cover
without the Owner's prior approval, such approval not to be unreasonably
withheld or delayed, and will immediately notify the Owner of, and supply
copies of, any endorsements or other amendments to any relevant policy and
any notification or correspondence received from the insurers.
13.9
The Developer will at all times from the date of this Agreement insure and keep
insured all liability of the Developer and the Owner in respect of personal injury,
death or damage to property to a minimum limit on any one claim of
£5,000,000.00.
14
NEW ENCUMBRANCES
14.1
During the currency of the Agreement the Owner shall not use the Property
except for its existing use at the date of this Agreement without the consent of
the Developer (such consent not to be unreasonably withheld or delayed).
14.2
The Owner shall not during the currency of this Agreement grant or create any
easements, rights, privileges or tenancies affecting the Property or if this
agreement is terminated in relation to the part of the Property to which this
Development Agreement remains subject to without the consent of the
Developer such consent not to be unreasonably withheld or delayed Provided
That consent shall not be deemed to be unreasonably withheld if the grant of
consent would lead to a hindrance or barrier to completing the Development.
15
VAT
Any money payable and taxable supplies made under this Agreement are exclusive of
VAT and the relevant party will pay all VAT properly chargeable in respect of them at the
time when the money is due or the supply is made and the other party shall supply the
relevant party with a valid VAT invoice in the full amount addressed to the relevant party.
16
LICENCE TO USE PLANS ETC
16.1
The Developer hereby grants as far as it is able to the Owner an irrevocable,
royalty-free transferable non-exclusive right and licence in relation to the
Property only (with freedom to sub-license) of the Intellectual Property of the
Plans and Specifications and any other plans and/or specifications in relation to
any other works relating to the Development and any amendments and
additions to them and any documentation and /or information submitted in
support of any planning application
16.2
The Developer warrants that the Intellectual Property for the Development will
not infringe the rights of any third party and no third party has threatened or so
far as it is aware is currently threatening proceedings in respect of such
infringement; and
16.3
The Developer shall pay all royalties or other sums payable in respect of the
supply and use of any patented articles processes or inventions required in
connection with the performance of the Developer's obligations under this
Agreement and shall indemnify and hold the Owner harmless (and keep
indemnified and hold harmless (notwithstanding termination of this Agreement)
against any and all loss or damage (including without limitation any economic
loss or other loss of profits, business or goodwill or any consequential loss)
suffered by the Owner as a result of the Developer's breach of any or all the
warranties in this clause.
16.4
The Developer will provide one copy of the items referred to in clause 16.1 to
the Owner or any person authorised by the Owner on request.
Provided that the provisions of this clause shall not apply to the design of house types
save and only to the extent necessary to implement the Planning Permission and/or any
other planning consent or approval of reserved matters and/or Planning Agreement.
17
DEVELOPER'S LIABILITY
17.1
Subject to clause 17.2 the Developer shall not be relieved of its obligations or
responsibilities under this Agreement in any way at all because of:
17.1.1
the
issue
of
any
certificate
by
the
Architect/Employer's
Representative/Developer or the Monitoring Surveyor;
17.1.2
the absence of any objection by the Owner or the Monitoring Surveyor
to any defect in the Development or any failure by the Developer to
comply with its obligations under this Agreement;
17.1.3
the successful prosecution of a claim against the Building Contractor,
any sub- contractor, any member of the Professional Team or any
other person.
17.2
the Developer shall following expiry of the defects liability period in relation to
the Property have no further liability in connection with the construction of the
Property save for any claims arising prior to the expiry of the defects liability
period;
18
DEFAULT OF THE DEVELOPER
18.1
The Developer shall be treated for the purposes of this clause (but without
limitation) as being in default if:
18.1.1
it does not remedy in all material respects a substantial breach or
failure to comply with its obligations under this Agreement after proper
notice from the Owner allowing it reasonable time to do so;
18.1.2
an Event of Insolvency occurs in relation to it unless the Agreement is
assigned to a funder approved pursuant to this Agreement or a third
party approved by the Owner acting reasonably within 3 months and
for the avoidance of doubt the Owner can refuse such approval if the
Owner in its reasonable opinion considers such third party may not be
able to comply fully with the obligations of the Developer under this
Agreement;
18.1.3
the Developer does not commence a Material Operation in relation to
the Development by # provided that the Developer shall be entitled to
an extension to such date as may be stipulated by the Employer's
Representative and approved by the Monitoring Surveyor (such
approval not to be unreasonably withheld or delayed) where there is a
delay due to any Delaying Factor;
18.1.4
the whole the Development is not practically completed by the
Termination Date and a NHBC Certificate not issued in relation to all
Units by the Termination Date;
18.1.5
the Infrastructure Works are not completed to adoptable standards in
accordance with clause 11.2.12;
18.1.6
the Developer fails to use reasonable endeavours to achieve
maximum scores for delivery of the Key Performance Indicators;
18.1.7
a Failure to Achieve a Critical KPI
provided that the Owner shall not exercise its rights under this Agreement
without serving prior written notice on any funder approved by the Owner in
accordance with the provisions of this Agreement and allowing such funder a
reasonable period to remedy the breach (if such breach is capable of remedy).
18.2
If the Developer is in default under clause 18.1 the Owner may (but shall not be
obliged to) at any time afterwards until the default (if capable of remedy) is
remedied:
18.2.1
invoke the relevant provisions of all or any of the Warranty Deeds held
by the Owner for assuming that responsibility; and/or
18.2.2
at its absolute discretion dispose of the whole or any part of the
Property carry out some other development on it or choose to retain it
without completing the Development; and/or
18.2.3
terminate this Agreement by service of a notice on the Developer
Provided That the exercise by the Owner of any of its rights under this subclause shall not affect or prejudice any other right or remedy of either party
against the other in respect of the breach to which it relates or any previous
breach of this Agreement.
18.3
Upon the Owner giving any notice to terminate under this clause:
18.3.1
The Agreement shall end and the Developer shall immediately vacate
the part or the whole of the Property (as applicable) in relation to
which the Development has not been completed and the provisions for
transfer of the whole or relevant part of the Property contained in the
transfer shall be exercisable by the Owner. .
18.3.2
If the Developer's Solicitors have registered any notice or other entry
against the Owner's title in respect of the Agreement, the Developer
shall, at its own cost, forfeit or cause the same to be cancelled in all
respects and if the Developer shall not have submitted an application
for the removal of any such entry within ten Working Days of such
termination the Owner shall be appointed as attorney in order to make
such application on behalf of the Developer.
19
CONSTRUCTION INDUSTRY SCHEME
19.1
To comply with or procure compliance with the provisions of the CIS the
Developer shall immediately following the date of this Agreement provide its
unique tax reference and accounts office reference to the Owner to allow the
Owner to verify the Developer's registration status with Customs and following
notification to the Owner by Customs of the Developer's registration status the
Owner's obligations under the CIS in connection with the payment of the
monies due (if any) to the Developer under this Agreement shall be as follows:19.1.1
If Customs notify the Owner that the Developer is registered for gross
payment the Owner shall pay the monies due to the Developer under
this Agreement in accordance with the terms of this Agreement without
any deduction or withholding on account of tax under the CIS.
19.1.2
If Customs notify the Owner that the Developer is either registered for
deduction of tax for the purposes of the CIS or is unregistered the
Owner shall be entitled to deduct and withhold from the monies due to
the Developer under this Agreement a sum equal to the appropriate
relevant percentage (as specified by order of the Treasury in force at
the date of payment) of so much of the monies due to the Developer
under this Agreement as is required under Finance Act 2004 Section
61(1) and, if any such deduction is required, the Developer shall only
be entitled to payment of the balance of the monies due to it under this
Agreement from the Owner under this Agreement
19.1.3
The Developer agrees to notify the Owner immediately of any change
in its status for the purposes of the CIS
20
PROPER LAW
This Agreement shall be governed by and interpreted in accordance with English law
and the parties irrevocably submit to the jurisdiction of the English courts.
21
PROBLEM SOLVING AND DISPUTE RESOLUTION
21.1
Where provision is made for any matter or value to be ascertained or any
dispute to be determined "in the Prescribed Manner" the same shall be
determined in accordance with this clause.
21.2
In this Agreement Dispute (except in relation to any legal dispute) shall mean
and include any difference or dispute between the parties to this Agreement
arising out of or in connection with this Agreement and shall include any
question as to the validity or interpretation of this Agreement and any Dispute
arising before or after termination of this Agreement.
21.3
Negotiations
21.3.1
Any Dispute which may arise shall first be referred to Senior
Representatives of the Owner and the Developer for resolution through
negotiations. Either Party may at any time give five days' notice in
writing to the other requiring that a Dispute be referred to Senior
Representatives of the Parties. Any such notice shall contain brief
particulars of the Dispute which is to be so referred.
The Senior
Representatives shall meet within five days of the expiry of the notice,
or within such shorter or longer period as may be agreed between the
Parties, and shall at their meeting negotiate in good faith in an attempt
to resolve the Dispute.
The Parties shall bear their own costs of
referring a Dispute to Senior Representatives for resolution through
negotiation.
21.3.2
The terms of resolution of any Dispute referred to and resolved by
Senior Representatives shall be recorded in writing and shall be
signed by the Senior Representatives between whom such Dispute
was resolved.
21.3.3
If a Dispute is not resolved by Senior Representatives or if a Dispute
has not been resolved within 14 days after service of notice requiring
that a Dispute be referred to Senior Representatives of the Parties for
resolution either Party shall be entitled to refer any Dispute to Expert
Determination as set out below.
21.4
Expert Determination
21.4.1
No Dispute shall be referred to an Expert for determination before the
expiry of 14 days from the date of service of a notice requiring a
Dispute to be referred to Senior Representatives of the parties for
resolution.
21.4.2
A Party wishing to have a Dispute referred to an Expert for
determination shall give notice in writing to that effect to the other
Party. The notice shall contain sufficient particulars of the Dispute to
be referred to the Expert to allow the other Party to understand the
nature of the Dispute and the profession or discipline of the Expert who
is to be appointed.
21.4.3
The parties shall agree the identity of the Expert to be appointed. In
default of agreement within 14 days of the date of service of a notice
referring a Dispute to an Expert for determination the Expert shall be
appointed on the application of either Party by the Chairman or
President as the case may be for the time being of the Appointing
Body named in clause [30.4.4] below.
21.4.4
The "Appointing Body" shall be:
(a)
For financial disputes: The Chartered Institute of Public Finance
Accountancy in England and Wales
(b)
For technical disputes nominated by the President or Vice
President or other duly authorised officer of either The Royal
Institute of Chartered Surveyors or The Chartered Institute of
Housing as appropriate.
(c)
For land valuation disputes: nominated by the President or Vice
President or other duly authorised officer of The Royal Institute of
Chartered Surveyors.
21.4.5
The Expert shall act as an expert and not as an arbitrator, and the
provisions of the Arbitration Act 1996 and the law relating to arbitration
shall not apply to the Expert or his determination or the procedure by
which he reaches his determination.
21.4.6
The Expert shall determine the Dispute referred to him acting
impartially and in good faith. The Expert will establish the procedural
rules to be applied to the determination which must accord with the
following:(a)
Each party will be entitled to make submissions to the Expert and
to supply the Expert with data and information which it considers
to be relevant.
(b)
The Expert may request either Party to provide him with such
other written or other statements, documents or information as
he may require in order to determine the Dispute referred to him
and the Parties shall comply promptly with any such request.
(c)
Communications from a Party to the Expert or from the Expert to
a Party shall be copied to the other Party at the same time and
by the same method.
(d)
The Expert will be entitled to make such site visits or inspections
as he considers are necessary or appropriate.
(e)
The Expert shall not take into consideration any document or
statement which has not been made available to the other Party
to comment; and
(f)
A failure by a Party to respond to any request or direction by the
Expert shall not invalidate the Expert's determination.
21.4.7
Unless a shorter period is agreed between the Parties at the time of
the Expert's appointment the Expert must give his determination in
writing with reasons within 42 days of his appointment. The Expert's
statement of reasons for his determination shall identify the
documentation, investigations and other evidence considered by the
Expert in arriving at his determination.
21.4.8
The Expert's time for reaching his determination may be extended by a
period of 14 days with the consent of the referring Party or by such
longer period as may be agreed by both Parties.
21.4.9
The fees and expenses of the Expert shall be borne by the Parties in
equal shares unless the Expert otherwise determines in his decision.
The Expert shall have jurisdiction to direct the payment by the
unsuccessful Party to the successful Party in any reference of a
Dispute to an Expert for destination of the successful Party's legal sots
of such reference. The amount of such costs shall be agreed between
the Parties if possible an in default of agreement shall be assessed by
the Court on the standard basis.
21.5
Save where this Agreement expressly provides otherwise all disputes as to any
aspect of this Agreement between the Parties shall be determined in the
Prescribed Manner.
21.6
The determination of the expert shall be binding between the Parties save in
the event of manifest error or fraud.
22
NOTICES
22.1
Any notice or communication required or given by either party to the other party
in connection with this Agreement shall be in writing and delivered by hand or
by first class or registered post to the relevant address or addresses prescribed
in this clause 22 of the party to whom the notice is to be given (or such other
address as the recipient may have notified to the sending party in writing) and
any such notice so sent shall be deemed, if delivered by hand, to have been
served at the time of delivery and if posted by first class or registered post to
have been served on the second business day following the date of posting.
22.2
All notices or communications to the owner shall (unless the Owner shall give
notice to the Developer otherwise) be delivered to the Owner at the address
stated in the Particulars and marked for the attention of the Town Clerk with a
copy supplied to the Assistant Head of Service, Physical Regeneration at
Kingston House, Bond Street. Hull. HU1 3EN or such other officer notified by
the Owner to the Developer in writing from time to time.
22.3
All notices or communications to the Developer shall (unless the Developer
shall give written notice to the Owner otherwise) be delivered to the Developer
at the registered office of the Developer.
23
THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement (except for any funder approved by the
Owner in accordance with the provisions of this Agreement) has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms but this does not
affect any right or remedy of a third party which exists or is available apart from that Act.
24
EXISTING SITE AT DEVELOPER'S RISK
24.1
With effect from the date this Agreement becomes unconditional the Developer
shall take the Property or relevant part thereof in its existing state and condition
as at the date of the Agreement and it is agreed and declared that the Owner
does not warrant that the Property or any part thereof is fit or suitable for the
Development or any other purpose for which the Developer or any other person
intends to use it or any other purpose and the carrying out of the Development
and any such usage pursuant to the provisions of this Agreement shall be at the
Developer's own risk and the Owner will not be responsible for any loss, injury,
damage or expense which may be suffered or incurred by the Developer or any
other person on the Property or in the event that the Property or any part
thereof proves defective, unsound, unfit or unsuitable in any way for the
Development or any other purpose.
24.2
The Developer acknowledges that:24.2.1
It has inspected the Property or has arranged for it to be inspected on
its behalf; or
24.2.2
It has been given the opportunity to inspect the Property but has not
done so
and that it has entered into this Agreement solely as a result of that inspection
(or without making any inspection) and examination of the documents of title
produced to it and that no representation whether oral or written has been
made to it before this Agreement by or on behalf of the Owner (except those
made in writing by the Owner's Solicitors in reply to any written enquiry or
statement made by the Developer's Solicitors) which has influenced or induced
it to enter into this Agreement or any agreement collateral to this Agreement
25
GENERAL
25.1
This Agreement is personal to the Developer and the Developer shall not hold
on trust, charge, assign or part with the benefit or burden of this Agreement.
25.2
Nothing in this Agreement shall create or imply a partnership or a joint venture
between the parties.
25.3
The Developer is not and shall not at any time hold itself out or allow itself to be
held out as the agent of the Owner for any purposes and under no
circumstances shall the Developer have authority to bind the Owner or hold
itself out to the Tenant, the Building Contractor, any of the Professional Team
or any other person as having such authority and all contracts and agreements
entered into by the Developer shall be entered into by it as principal with the
respective third parties and the Owner shall have no obligation or liability in
connection with them.
25.4
Any consent or approval required from either party under this Agreement is to
be obtained before the act or event to which it applies is carried out or done
and is to be effective only when given in writing.
25.5
If any part of this Agreement is held to be illegal, void, invalid or unenforceable
for any reason the legality, validity and enforceability of the remainder of this
Agreement shall be unaffected.
25.6
Following completion of the sale and purchase of the Property the terms and
conditions of this Agreement shall remain in full force and effect in so far as
they have not then been fully implemented or relate to matters which are to
operate following that date.
25.7
If at any time the provisions of this Agreement become illegal, invalid or
unenforceable in any respect under any law or regulations of any jurisdictions
neither the legality, validity or enforceability of the remaining provisions of the
Agreement shall be in any way be affected or impaired as a result.
26
STATUTORY POWERS
Nothing contained in or done under this Agreement and no consents given by the Owner
shall prejudice the Owner's rights, powers or duties and/or obligations in the exercise of
its functions or under any statutes, bye-laws, instruments, orders or regulations.
27
FREEDOM OF INFORMATION
27.1
The Developer acknowledges that the Owner is subject to the requirements of
FOIA and the Environmental Information Regulations 2004 (EIR) and shall give
its reasonable assistance and co-operation to the Owner (at the Developer's
reasonable expense) to enable the Owner to comply with the Owner's
information disclosure requirements at law.
27.2
The Developer shall use its reasonable endeavours to procure the:27.2.1
transfer of any Request for Information to the Owner as soon as
practicable after receipt after receiving a Request for Information;
27.2.2
provide the Owner with a copy of all information in its possession or
power in the form the Owner reasonably requires within such period as
the Owner may reasonably specify; where such information is to be
disclosed in accordance with the Owner's obligations at law; and
27.2.3
provide all necessary assistance as reasonably requested by the
Owner to enable the Owner to respond to a Request for Information
within the time for compliance set out in section 10 of the FOIA or
regulation 5 of the EIR
27.3
The Owner shall notify the Developer if it receives a Request for Information
relating to the Agreement and shall take into account any reasonable
representations the Developer makes in relation to such request but the Owner
shall be responsible for determining at its absolute discretion whether the
commercially sensitive information and/or any other Information:
27.3.1
is exempt from disclosure in accordance with the provisions of the
FOIA and EIR;
27.3.2
is to be disclosed in response to a Request for Information and in no
event shall the Developer respond directly to a Request for Information
unless expressly authorised to do so by the Owner.
27.4
The Developer acknowledges that the Owner may, acting in accordance with
the Secretary of State for Constitutional Affairs’ Code of Practice on the
discharge of public authorities’ functions under Part 1 of FOIA (issued under
section 45 of the FOIA, November 2004), be obliged under the FOIA or the EIR
to disclose information:
27.4.1
without consulting with the Developer, or
27.4.2
following consultation with the Developer and having taken its views
into account.
27.5
The Developer shall use all reasonable endeavours to ensure that all
information produced in the course of this Agreement or relating to this
Agreement is retained for disclosure.
28
OVERAGE
28.1
29
The Parties shall comply with the obligations and provisions of the # Schedule.
BEST VALUE
The Developer acknowledges that the Owner is subject to a duty in Section 3 of the
Local Government Act 1999 and must undertake or refrain from undertaking such
actions as the Owner reasonably requests to enable the Owner to comply with its
obligations under such Act and must permit any inspector in connection with the
exercise of its statutory powers and duty at reasonable times upon reasonable written
notice access to the Property, any documentation or data which the relevant inspector
reasonably requests access to relating to the Property and any consultant or contractor
which the Developer holds or to which it has access.
30
STANDARD CONDITIONS
Part 1 of the Standard Conditions are incorporated in this Agreement in so far as they
are applicable to a sale by private treaty and are not inconsistent with or varied by this
Agreement (the terms of which shall prevail in case of conflict) Provided That:
30.1
Conditions 1.4 (VAT), 3.3 (Retained Land), 7.1.2 and 7.1.3 (insurance) shall not
apply;
30.2
the following shall be added as Condition 6.2.4:
“If the buyer persists with any requisition which the seller is unable or unwilling
upon reasonable grounds to deal with satisfactorily, the seller may rescind the
contract if the buyer does not withdraw the requisition within 5 Working Days of
being requested to do so and Condition 9.2 shall then apply”;
30.3
the time in Conditions 8.1.2 and 8.1.3 shall be the Completion Time;
30.4
the following shall be added as Condition 8.1.4:
“If there is any mortgage or charge on the property the seller shall not be
obliged to deliver the vacated mortgage or charge or Form DS1 in respect of it
(or any other substantive form of release of such mortgage or charge) at
completion but the buyer shall complete on the basis of an undertaking from
the seller's solicitors (if the seller's solicitors offer such undertaking) to pay over
to the mortgagee or chargee the monies required to redeem the mortgage or
charge and to forward the receipted mortgage or charge or Form DS1 (or other
appropriate substantive evidence of discharge of the mortgage or charge) to
the buyer's solicitors when received by them”;
30.5
Condition 8.3.2 shall be deleted and replaced by the following:
“Apportionment is to be made as at the date of actual completion”;
30.6
in Condition 9.1.1 the words “or in the negotiations leading to it” shall be
deleted;
30.7
for the purposes of Condition 9.3 references to the purchase price shall be to
the purchase price plus any VAT payable in respect of it.
30.8
in Condition 9.3.4 the words "give notice to the buyer, before the date of actual
completion, that it" shall be omitted;
30.9
the following shall be added as Condition 9.3.5:
"the buyer shall pay the costs of the seller’s solicitors including disbursements
and VAT (on a full indemnity basis) in respect of the preparation and service of
any notice to complete and any other work done or time spent arising from the
delay in completion except in respect of any caused by the default of the seller"
31
REGENERATION BENEFITS
31.1
The Developer will deliver a training programme in a form previously approved
by the Owner (such approval not to be unreasonably withheld or delayed)
throughout the undertaking of the Development and support the employment
and training of school leavers and unemployed persons to create sustainable
employment and to maximise social and economic benefits to Hull
and in
partnership with the Owner will engage with the community in a manner
approved by the Owner acting reasonably throughout the Development
31.2
The Developer will procure that jobs are advertised locally, that local
contractors are invited to tender for subcontract packages, that the Developer
participates in a Local Construction Scheme and uses their network of local
labour supplies and make sure that records are kept of applicants for trade
opportunities and the reasons for appointment of or non-appointment of
individual tenderers
32
ENVIRONMENTAL PROVISIONS
32.1
Definitions
In this clause where the context allows it the following words and expressions
shall mean:
the Circular: Defra Circular 01/2006 Environmental Protection Act 1990 Part
2A Contaminated Land 2006;
Contamination:
the presence in, on, under or over the Property or the
emission, emanation or migration from any part of the Property of any
Hazardous Material or Waste;
Environment: all or any of:
(a)
air including (without limitation) air within buildings and other natural or
man-made structures;
(b)
water including (without limitation) inland waters, surface water,
groundwater and water in drains and sewers;
(c)
land including (without limitation) surface land, sub surface strata and sea
and river bed; and
(d)
any living organisms or eco-systems supported by any of them;
Environment Authority: any authority whether statutory, non-statutory,
governmental or non-governmental having responsibility for Environmental
Matters under Environmental Law;
Environmental Costs: the costs:
(e)
incurred by any Environmental Authority in carrying out any investigation,
monitoring or remedial action in respect of any Environmental Matters;
and/or
(f)
incurred or to be incurred by the Owner in complying with the
requirements of, or any order made in, any Environmental Proceedings;
Environmental Law: all common law, statutes and treaties which at any time
relate to Environmental Matters and/or relate to the protection of and/or the
prevention of harm and/or damage to the Environment including without
limitation, the 1990 Act, the Contaminated Land (England) Regulations 2000,
the Circular and all other circulars, statutory or non-statutory guidance, codes
of practice, directives and conventions made under any of them;
Environmental Matters: all or any of the following:
(a)
the existence of any Contamination including (without limitation) any
contact and/or exposure of any person to any Contamination;
(b)
the creation of any state of affairs damaging or harmful to the
Environment including (without limitation) any common law or statutory
nuisance
or
any
radiation
arising
from
the
existence
of
any
Contamination;
Environmental Proceedings:
(a)
any statutory notice or formal requirement of any court or any
Environmental Authority; and
(b)
any claim made by any third party
relating to Contamination in existence at Actual Completion or which occurred
before Actual Completion;
Hazardous Materials: any substance whether in solid, liquid or gaseous form
which is capable of causing harm to human health or to the Environment
whether on its own or in combination with any other substance;
Remedial Action: any action required to:
(a)
prevent, remove, remedy, clean up, abate, contain, treat or mitigate the
presence or effect of any Contamination; and/or
(b)
carry out investigative, preparatory or monitoring work including obtaining
legal and other professional advice in relation to the matters listed in this
definition
and includes, without limitation, any action required by any Environmental
Proceedings;
Waste: any discarded, unwanted or surplus substance whether or not it is
capable of being recycled or recovered or has any value;
the 1990 Act: the Environmental Protection Act 1990.
32.2
Liability
The Owner and the Developer agree that:
32.2.1
If any Environmental Proceedings are served on either of them then,
as between the Owner and the Developer, the sole responsibility for
complying with them is to rest with the Developer to the exclusion of
the Owner.
32.2.2
If any Environmental Authority wishes to recover any Environmental
Costs from either or both of the Owner and the Developer or if the
Owner itself incurs Environmental Costs then, as between the Owner
and the Developer, the sole responsibility for the payment of all such
Environmental Costs is to rest with the Developer to the exclusion of
the Owner and the Developer will pay to and/or indemnify and keep
indemnified the Owner against all such Environmental Costs.
32.3
Information
The Developer confirms that:
32.3.1
It has been given adequate opportunity to investigate the potential for
any Contamination and that it has done so or elected not to do so at its
own risk;
32.3.2
No warranty confirmation or representation has been or is being given
by the Owner as to the state and condition of the Property, its
suitability for any purpose and function or as to the accuracy of any
information given by the Owner in respect of the past history of the
Property;
32.3.3
Both it and the Owner are commercial organisations;
32.3.4
It has entered into this Agreement with full knowledge of the existence
or possible existence of Contamination;
32.3.5
The acknowledgements contained in paragraphs 32.3.1 to 32.3.4 are
intended to satisfy the requirements of the Exclusion Tests 2 (Payment
made for Remediation) and 3 (Sold with Information) and related
provisions set out in Annex 3, Chapter D of the Circular (and any other
related or relevant test or procedure) for the purpose of rendering the
Developer and not the Owner the appropriate person in respect of any
liability for any Remedial Action required under any Environmental
Proceedings;
32.3.6
It and the Owner declare the provisions of this clause to be an
“Agreement on Liability” between them for the purposes of paragraph
D38 of the Circular and the Developer undertakes to provide to any
Environmental Authority at any relevant time its confirmation that it
does not challenge the application of this clause by the Environmental
Authority in its determination of, exclusion from, apportionment and/or
attribution of all liabilities and costs in any way relating to any
Contamination including any Remedial Action.
32.4
Price
The Price has been agreed on the basis of the Developer’s acceptance of the
provisions of this clause and the liabilities imposed on the Developer under this
clause are reflected in the Price.
32.5
Declaration
For the avoidance of doubt the Owner and the Developer declare that:
32.5.1
the agreements in this clause are made with the intention that:
(a)
any
Environmental
Authority
serving
any
Environmental
Proceedings or seeking to recover any Environmental Costs
should give effect to them under all relevant statutory guidance;
and
(b)
in the absence of any relevant statutory guidance they should be
taken into account by any Environmental Authority under any
Environmental Laws under which similar responsibilities may be
imposed in considering whether and how to exercise any
discretion available to it or whether and how to make any
relevant determination;
32.5.2
the acknowledgements in this clause are made in accordance with the
Circular and all other relevant statutory guidance to exclude the Owner
from liability as an appropriate person to bear responsibility for any
Environmental Costs.
32.6
Disclosure
Nothing in this Agreement prevents the Owner disclosing the terms of this
clause to any Environmental Authority or any other third party at any time.
33
NOT USED
34
KEY PERFORMANCE INDICATORS
The Owner and the Developer agree that the delivery of the Development shall be
monitored throughout the term of this Agreement by the use of agreed Key Performance
Indicators as may be varied or modified from time to time by agreement between the
parties and both parties agree that they shall maintain and record such information as is
reasonably necessary to compile and review the Key Performance Indicators and the
Developer shall use reasonable endeavours to achieve the Key Performance Indicators.
35
THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement (except for any funder approved by the
Owner in accordance with the provisions of this Agreement) has no right under the
Contract (Rights of Third Parties) Act 1999 to enforce any of its terms but this does not
affect any right or remedy of a third party which exists or is available apart from that Act.
36
PROGRAMME PROGRESS & OUTPUTS
36.1
Representatives of the Owner and the Developer together with such other
person or persons as either party may reasonably require shall attend a
meeting to discuss programme performance and outputs at least once in any
one month period or such other period as is agreed between the parties
throughout the duration of the Development and unless otherwise agreed
between the parties:36.1.1
The meetings shall be held at the site office or such other mutually
accepted location;
36.1.2
No meeting shall be convened at less than 5 Working Days' notice
(except in an emergency where an ad hoc meeting can be arranged);
36.1.3
Documents to be considered at the meeting shall be distributed in
advance of the meetings to all attendees (accept in an emergency
where an ad hoc meeting is arranged between the parties) between
the parties.
37
STRATEGIC GROUP
37.1
The Strategic Group shall be made up of representatives of the Developer and
the Owner in the numbers set out in clause 37.3 but shall be entitled to invite
representation from other interested parties and professional advisers or
consultants as each party may reasonably require.
37.2
Each of the parties nominated representatives shall be entitled to appoint an
alternative to attend meeting and comment on his/her behalf provided that all
nominated representatives and their alternates are of an equivalent level within
the organisation and are empowered to make the decisions required.
37.3
The initial members of the Strategic Group shall be:Owner (1 member);
Developer (1 member).
37.4
The Strategic Group shall meet once a quarter or as otherwise required with
the following objects:37.4.1 To monitor and provide a forum to discuss the partnering and the
satisfaction of working relationships between the Owner and the Developer;
37.4.2 To provide a forum to discuss the strategic progress of the
Development and Conditions
37.4.3 To monitor and provide a forum to discuss the parties performance in
relation to outputs including new housing job creation local labour and
apprenticeships;
37.4.4 To discuss any other matters relating to the Development which are
notified in writing by one party to the other prior to the relevant meeting; and
37.4.5 To discuss progress and any technical issues relating to the
Development.
37.5
Either party shall be entitled by giving not less than 10 Working Days notice to
the other to call for a meeting of the Strategic Group.
37.6
The parties shall not be bound for the purposes of this Agreement by the
decisions reached within the Strategic Group
IN WITNESS of which the parties have duly executed this Agreement on the date specified on
page one.
THE FIRST SCHEDULE - THE TRANSFER
THE SECOND SCHEDULE - THE SITE PLAN
THE THIRD SCHEDULE – MASTER PROGRAMME
THE FOURTH SCHEDULE – KEY PERFORMANCE INDICATORS
THE FIFTH SCHEDULE – PLANS AND SPECIFICATIONS
THE SIXTH SCHEDULE – OVERAGE
1
DEFINITIONS AND INTERPRETATION
1.1
The definitions and rules of interpretation set out in this paragraph apply to this
Schedule:
Act of Circumvention: any action or default of the Developer or an associated
company of the Developer where the principal purpose or purposes is or are to
avoid or reduce the size of the Overage;
Default Rate: 3% per annum above the base lending rate from time to time of
National Westminster Bank Plc;
Development Costs: shall comprise all the reasonable and proper costs paid or
incurred by the Developer in all cases prior to the Overage Payment Date in
connection with the Development
Development Receipts: all income payments capital or other receipts and/or
other consideration paid to and/or received by and due to the Developer and by
others on its behalf in respect of the Property and the Development or any part
or parts thereof and including:
(a)
all rents licence fees and other sums due to the Developer from or sent
on behalf of any tenant licensee or occupier or any proposed tenant
licensee or occupier (unless such a sum is due but unpaid and the
chances of recovery are less than fifty per cent (50%) but such sums
shall be included if actually received before the date of payment of the
Overage;
(b)
all capital payments premiums or other sum received by or due to the
Developer or others on its behalf in respect of the Property or any part
thereof;
(c)
proceeds of sale of the whole or any part of the Property (including any
premium received for the grant of a long lease);
(d)
any compensation damages interest or other payment or sum of
whatsoever nature not otherwise provided for in this definition received
by or on behalf of the Developer for whatever purpose in respect of the
Property;
(e)
interest on any excess of Development Receipts over Development
Costs;
(f)
Proceeds of any rights covenant interest licence or estate granted to in
over or under the Property or any part thereof;
(g)
any payments or premiums payable on a surrender of any lease or
licence;
(i)
proceeds of any insurance policy relating to the Property and/or the
Development including any received or due under clause [15]
Provided That if any transaction which creates a Development Receipt as
defined above is entered into at an Under Value the Open Market Value shall be
substituted for the relevant Development Receipts in place of the actual
Development Receipts;
Disposal: a legal or equitable conveyance or transfer or assignment of or grant
of any leasehold interest or estate of the whole or any part of the Property
including an agreement for the same where the conveyance, transfer,
assignment or grant is not completed within the relevant period and Disposals
shall mean more than one Disposal;
Final Development Appraisal shall be an appraisal in the form of the
Spreadsheet Appraisal showing the aggregate of the Development Receipts and
the Market Value of the Development less the aggregate of Development Costs
for the Development which for the avoidance of doubt does not include any
monies provided by the Owner and/or Gateway to the Developer save to the
extent they are repaid by the Developer;
Interest Rate: the base lending rate from time to time of Lloyds TSB Bank plc;
Market Value: the market value of the estate(s) right(s) and/or interest or
interests in the Development on the Overage Payment Date being the estimated
amount at which the whole of those interest(s) rights and estates should
exchange between a willing buyer and a willing seller having regard to prevailing
market conditions in an arms length transaction after proper marketing wherein
the parties had each acted knowledgeably, prudently and without compulsion on
the basis that:
(a)
it is assessed in accordance with Practice Statement 3.2 of the Fifth
Edition of the RICS Appraisal and Valuation Manual;
(b)
the provisions of this agreement are disregarded;
(c)
the interest estate and rights are (save for any Disposals) assumed to
be free from all encumbrances save for those existing at the date of this
agreement;
(d)
all Disposals are deemed to have been completed at Open Market
Value;
(e)
any damage or destruction of the Property occurring after the date of
this deed is assumed to have been fully reinstated
Provided That any increase in value attributable to any change in legislation
applying VAT to the selling price of newly constructed dwellinghouses shall not
be taken into account in assessing market value;
Open Market Value: means the amount which could reasonably be expected to
be realised in the open market on a Disposal of any relevant part of the Property
as between a willing buyer and a willing seller having regard to the prevailing
marketing conditions and including the assumption at (a) to (c) inclusive and (e)
of the definition of Market Value;
Overage: the amount calculated in accordance with the following formula:
A – B x 50% where:
A
is the residual land value in the Final Development Appraisal; and
B
is the residual land value in the Spreadsheet Appraisal
Provided that:
(a)
for the avoidance of doubt the formula for the calculation of the
Overage shall only be applied if and when the Developer's return
within the Final Development Appraisal exceeds [#]% of the
Development Receipts and in the event of there being no such
excess then no Overage calculation shall be required and no
monies shall be payable by the Developer to the Owner as
Overage;
(b)
if the Overage is less than nil the Overage shall be nil and in no
circumstances shall any monies be payable by the Owner to the
Developer as Overage;
Overage Payment Date: means the earlier of:
(a)
actual completion of the whole of the Development;
(b)
the anticipated date (or the revised anticipated date in accordance with
the terms of this Agreement) for completion of the whole of the
Development as defined in the Master Programme;
Planning Agreement Costs: means the sums properly paid and required to be
paid pursuant to the Planning Agreement;
Spreadsheet Appraisal – the appraisal annexed at the Seventh Schedule;
Under Value: means Disposal at materially less than the Open Market Value;
VAT: value added tax chargeable under the Value Added Tax Act (1994 and any
similar replacement and any additional replacement tax);
Working day: any day from Monday to Friday (inclusive) which is not Christmas
Day, Good Friday or a statutory bank holiday.
2
OVERAGE PAYMENT
2.1
On the Overage Payment Date or, if later, the date 20 Working Days after the
date that the Overage (as applicable) is agreed or determined in accordance
with the provisions of this agreement the Overage shall immediately become
due from the Developer to the Owner.
2.2
The Developer covenants with the Owner that it shall pay interest at the Interest
Rate to the Owner on the Overage for the period from the Overage Payment
Date until the date the relevant payment is made.
2.3
The Developer covenants with the Owner that it shall pay interest at the Default
Rate to the Owner on the Overage if it is not paid on the due date or from such
due date that any independent expert determines in the event that the
independent expert deems it appropriate as a result of the conduct of the
Developer or the Owner in relation to the agreement or determination of the
Overage and such interest shall be payable for the period from the due date to
the date of actual payment and shall not affect any other remedy the Owner
may have.
2.4
The benefit of the Developer’s covenants in relation to Overage are assignable
by the Owner.
3
AMOUNT OF THE OVERAGE
3.1
By the date which is 20 Working Days after the Overage Payment Date the
Developer shall prepare an account and calculation (including full details of all
Development Receipts and Development Costs) of the Overage and shall
submit the same for approval by the Owner (such approval not to be
unreasonably withheld or delayed).
3.2
The Developer will:3.2.1
Maintain a record account (Development Account) in a format to be
agreed before the first statement is submitted in which all Development
Costs will be debited and all Development Receipts will be credited.
3.2.2
Supply quarterly to the Owner and their consultants the details of the
entries in the Development Account for the relevant quarter and copies
of all evidence reasonably required by the Owner to support the
incurring of Development Costs including invoices, tender quotations
and appropriate evidence of payment if relevant costs and sums and
both parties agree to comply fully with the Open Book Accounting
Principles.
3.2.3
Reply promptly to the Owner and/or their consultant's written enquiries
in relation to the Development Account.
3.2.4
Supply such further information as the Owner or their consultants may
reasonably require in relation to the calculation of the Overage and/or
the Development Receipts and/or the Development Costs and procure
any audit which may be required of such accounts.
3.3
If the parties cannot agree upon the Overage then the dispute shall be put to
the Expert in accordance with Clause [23] of this agreement.
3.4
Any costs incurred as a result of the Developer's failure to notify the Owner of a
proposed change in accordance with its obligations in the Development
Agreement will not be recoverable and shall be borne exclusively by the
Developer.
4
ACT OF CIRCUMVENTION
The Developer shall not enter into any Act of Circumvention and shall not assist cause
permit or suffer any other person to enter into or make arrangements for the entering
into of any Act of Circumvention.
5
GOOD FAITH
In respect of the calculation of Overage the Owner and the Developer shall act towards
each other in good faith in a manner wholly consistent with the observance and
performance of their respective obligations to each other.
6
VAT
For the avoidance of any doubt:6.1
each amount stated to be payable by the Developer to the Owner under or
pursuant to this Schedule is exclusive of VAT (if any);
6.2
if any VAT is chargeable on any supply made by the Owner under or pursuant
to this agreement the Developer shall on receipt of a valid VAT invoice pay the
Owner an amount equal to that VAT.
7
DISPOSAL AT UNDER VALUE
The Developer shall not enter into any Disposal of the whole or any part of the Overage
Units at an Under Value.
8
AVOIDANCE OF INCREASE IN DEVELOPMENT COSTS
The Developer shall not except in emergency or with the prior written consent of the
Owner (such consent not to be unreasonably withheld or delayed) do or allow to be
done any act or omission which would or would be likely to increase materially the
Development Costs or delay completion of the Development or reduce the market rental
or sales values and/or the open market value of an Overage Unit or Overage Units in
the Development.
THE EIGHTH SCHEDULE – OPEN BOOK ACCOUNTING PRINCIPLES
In carrying out Developers Appraisals, monitoring costs incurred and income received,
calculating overage and all other financial matters relating to appraisals, monitoring and
accounting of the Development, the parties agree that open book accounting shall apply, and
this Schedule sets out the principles to be adhered to by the Parties.
Part 1 – Principles of Open Book Accounting:
Key Principles and aspects of implementation
1
The primary aim of open book accounting is to help align the objectives of client and
developer in service delivery and to concentrate on finding value in the actual cost of
the works. It takes a long term approach to working together based on mutual trust
and shared objectives.
2
Auditability is key to open book accounting.
To avoid unnecessary additional
administration burden and costs on both sides, the parties will work together to ensure
a mutually beneficial methodology of report and review is agreed and used.
In principle, review protocols and frequency will be as follows:
Ongoing Quarterly Review – the Developer to provide a summary of planned versus
actual costs and sales (both to date and final forecast, using a costs to complete basis
to highlight by exception any significant variances, including any recommended course
of action.
Where deemed necessary the cost monitor may call for further particulars should
significant variances be highlighted.
The Developer will also maintain and provide their summary account in which all
Development Costs are debited and all Development Receipts are credited.
Final Review – the Developer will provide a detailed account of final sales revenue
and final costs for the cost monitor's review and agreement.
Where deemed necessary the cost monitor may call for further and better particulars in
order to establish and agree the Final Development Appraisal. Such information may
include supporting invoices, tenders, quotations and appropriate evidence of payment.
3
It is important to note that under an Open Book arrangement cost savings and not
solely cost increases would be highlighted and used in the calculation mechanism.
4
Back to back agreements between the Developer and their supply chain, particularly
open book, are encouraged in order to maximise the opportunities for cost savings.
5
Where works are to be sublet the Developer is expected to accept the tender that
represents best value for the scheme in terms of both price and quality.
Notwithstanding the above the Developer reserves the right to use the most suitable
contractor and/or supplier in accordance with its established supply chain processes
and it shall not be a requirement that tenders shall be obtained from any particular
number of contractors, nor the lowest priced tender used. In such circumstances the
Developer must be able to demonstrate to the costs monitor in sufficient timescales not
to adversely impact on programme that their supply chain arrangements represents
best value.
6
In general all legitimate actual cost reasonably and properly incurred, be it increases or
decreases will be recoverable. In case of dispute the dispute resolution procedure in
this Agreement will be adopted.
EXECUTED as a Deed (but not delivered
)
until the date hereof) by affixing
)
the Common Seal of the Developer
)
in the presence of:
)
Director
Secretary
The affixing hereto of the
)
Corporate Common Seal of
)
KINGSTON UPON HULL CITY COUNCIL )
is authenticated by:
)
Authorised Signatory