SNR Denton UK LLP / Pinsent Masons LLP

Conditional Land Sale Agreement in respect of land at the West

Kensington and Gibbs Green Estates, London W14
Dated ~3 3
The Mayor and Burgesses of The London Borough of Hammersmith and Fuiham
(the Council)
EC Properties LP
(the Buyer)
Earls Court Limited
(the Guarantor)
Contents
Definitions and interpretation 6
2 Sale of Gibbs Green School and Farm Lane 55
3 Not Used 56
4 Scheme conditionality and Trigger Notice 56
5 Seagrave Planning Permission 57
6 Sos Consent condition 57
7 Assurances 60
8 Sale and purchase of the Option Land (Seagrave Road Rouses) and Advance
Payments and adjustments 60
9 Deductions and adjustments and payments: Allowable Revenue Expenditure and
Allowable Capital Expenditure 65
10 Councils adverse rights agreement 69
11 Phasing Programme and Phase drawdown 69
12 Phase Completion 79
13 Provision of Replacement Homes 80
14 Grouping of Replacement Homes and Preferred Replacement Accommodation 95
15 Not Used 95
16 Form of Replacement Accommodation Lease and completion 95
17 Form and completion of the Replacement Home Underlease 99
18 Early Purchase Contract 99
19 Standard Purchase Contract 100
20 Advance Existing Purchase Contract 100
21 Voluntary Advance Purchase Contract 101
22 Secure Tenant Contract 101
23 Existing Registered Providers 101
24 Panels and Independent Representative 102
25 Not used 103
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26 Vacant Possession Condition 103
27 Overage 103
28 Mitigation of adverse impact on cessation of works 103
29 Title 105
30 Access for surveys and further information 105
31 Snagging matters 107
32 Considerate constructors scheme 107
33 Copyright and licence to use documents 107
34 Access and copies 107
35 Notices 108
36 VAT 109
37 Interest and payments 109
38 Project Delivery Group 109
39 Damages 113
40 Disputes 113
41 Default, Termination and run off 116
42 Alienation 117
43 Guarantee 121
44 Guarantor and replacement of Guarantor 121
46 Liability caps 121
46 Freedom of information 121
47 Confidentiality 124
48 Miscellaneous 124
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SCHEDULES
Schedule I - Guarantor Substitution Covenant Adequacy and Enhancement 129
Schedule 2 Purchase Contracts 147 -.
Schedule 3Precedent PPDN and Phasing Programme 176
Schedule 4Sale and Purchase of Gibbs Green School 178
Schedule 5- Phase Completion Mechanics 183
Schedule 6 Land Release and Vacant Possession and Use of Option Land Pending Transferl86
Schedule 7- Phase Transfer 220.
Schedule 8 Replacement Accommodation Lease 223
Schedule 9 Aoquisition of out of phase properties 224
Schedule 10- Repurchase and Overage Provisions 227
Schedule 11 - Replacement Accommodation Completion Mechanics 241
Schedulel2 SecureTenancy 245
Schedule 13 Adverse Right Deeds 246
Schedule 14- Draft Phase Transfer 247
Schedule 15 Out of Phase Properties Lease 248
SchedulelsTerminatiOnand Expiry 249
Schedule 17 Deed of Novation 261
Schedule 18 Halfway Condition Date Extensions 267
Schedule 19- Forms of Charge 270
Schedule 20 Service Charge Strategy 276
Schedule 21 Ancillary Documents 277
Schedule 22 Phase Impact Assessment 278
Schedule 23 Agreed Collateral Warranties 280
Schedule 24- GIA Allowance 286
Schedule 25 Refund Termination Event 288
Schedule 26 Form of Rehousing Report 291
Schedule 27 - GEA Distribution by Phase 297
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This Deed is made on 2.3 _!--~t2D~ 2013
Between:
(1) The Mayor and Burgesses of The London Borough of Hammersmith and Fuiham of
Town Hall, King Street, Hammersmith, London W6 9JU (the Council);
(2) EC Properties LP a limited partnership registered in England and Wales under number
LPI 4695 whose registered office is at 15 Grosvenor Street, London WI K 4QZ acting by its
general partner EC Properties GP Limited (company number 7696161) whose registered
office is at 15 Grosvenor Street, London Wi K 4QZ (the Buyer); and
(3) Earls Court Limited (Company Number 557276) whose registered office is at 15 Grosvenor
Street, London WIK 4QZ (the Guarantor).
Background:
A The Council is the freehold owner of land comprising part of the Option Land.
B The Council and the Buyer have agreed, subject to and in accordance with the terms of this
Agreement, to sell and buy respectively the Councils land interests in phases.
C The Council is not able to agree to dispose of a significant proportion of the Option Land and
the Buyer is not willing to acquire such land other than with vacant possession.
D The Parties have agreed to work together to secure agreement of terms with tenants and
occupiers in order to achieve greater certainty in relation to securing vacant possession. In
particular, the Parties acknowledge the need to provide replacement housing units to rehouse
residents whose Existing Homes are located in a Demolition Phase in accordance with the
Section 106 Agreement.
E The Council is the freehold owner of Gibbs Green School and Farm Lane.
F The Council has agreed to sell and the Buyer has agreed to purchase Gibbs Green School
and Farm Lane subject to and in accordance with the terms of this Agreement.
It is agreed:
I Definitions and interpretation
1.1 In this Agreement unless the context otherwise requires:
Accounting Date means any Annual Accounting Date and any Interim Accounting Date.
Accounting Standards means UK GAAP or International Financial Reporting Standards provided
that where derivatives are held any liabilities connected with such derivatives will be determined in
accordance with International Financial Reporting Standards.
Actual GEA means the aggregate GEA permitted by a Satisfactory Scheme Overage Planning
Permission to be carried out on all such parts of the Scheme Overage Area in respect of which the
Scheme Overage Trigger Date has occurred but excluding all Excluded Areas.
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Adaptation Assessment Report means the agreed form of report to be completed by each
Occupational Therapist.
Adaptation Contribution Cap means 100000.
Adaptation Costs means the aggregate total costs incurred by the Buyer in connection with the
building or installing of Adaptations at Replacement Homes for the occupiers of those homes
pursuant to the Councils Adaptations Policy.
Adaptations means:
(a) those adaptations which are integral to the design and construction of the structure of
a Replacement Home (or the building of which it forms part)including (but not limited
to) the installation of access ramps and incorporating wider door frames for
wheelchair access (Integral Adaptations) and
(b) those adaptations which are not Integral Adaptations including (but not limited to) the
installation of any grab rail, stair rail, stair lift, bath or bed hoist or lift (Non-Integral
Adaptations)
and in either case are to be made to meet the needs of a prospective occupier of such Replacement
Home, as assessed by an Occupational Therapist in accordance with the Councils Adaptations
Policy.
Adaptations Policy means the Councils p01 icy as to the entitlements of Qualifying Owners and
Secure Tenants to Adaptations.
Additional Costs and Compensation Liability means any potential and/or actual liability of the
Council for Non-Deductible Compensation and Costs.
Additional Costs and Compensation Liability Security means such additional security
arrangements as the Council might reasonably require the Buyer to provide in respect of any
Additional Costs and Compensation Liability as shall come into effect pursuant to the provisions set
out in paragraph 5.6.11 of Part I of Schedule 6.
Additional Costs and Compensation Security Arrangements means such additional security
arrangements as shall come into effect pursuant to the provisions of paragraph 5.6 of Schedule 6.
Additional Qualifying Asset Value means the total of (a) the Secured Amounts in relation to any
Secured Assets within the SAP not owned by a Relevant Entity and (b) the amounts secured by a
security in favour of the Council created pursuant to clause 9.18 in respect j~xisting Homes not
owned by a Relevant Entity and (c) the value of any other security in respectassets not owned by any
Relevant Entity available to the Council for the discharge of any Outstanding Liabilities (together with
any other security being offered to the Council on the Insolvency of the Buyer or the Guarantor
pursuant to paragraph 1 of Schedule 16).
Additional Security means any bonds cash deposits or other security provided to the Council in
connection with the Outstanding Liabilities in addition to the Collateral Security other than any
Additional Costs and Compensation Security Arrangements.
Additional Security Arrangements means the arrangements relating to any Additional Security
pursuant to paragraph 2.17.5 of Schedule 1.
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Administrative Body means any administrative, public, quasi-public, judicial, quasi-judicial body or
entity (including the Secretary of State, court or tribunal).
Advance Existing Purchase Contract means the forms of contract to be offered to registered
proprietors of Privately Owned Residential Units who are not entitled to or do not wish to take a
Replacement Home within the Development pursuant to the provisions of clause 20.
Advance Payment(s) means each of 6 payments which subject to clause 8.1 .4(b)(ii) shall be of equal
amounts and which in aggregate amount to the Balance to be paid by the Buyer to the Council in
accordance with the provisions of clause 8.
Affordable Housing means residential units where the rent or price is permanently reduced, directly
or indirectly, by means of subsidy from the public, private or voluntary sectors and which is provided
or managed by a Registered Provider or local authority including shared ownership identified in a
scheme submitted to and approved in writing by the local planning authority.
Agreed PPDN means a PPDN that has been agreed by Parties or the Project Delivery Group, or
determined by the Expert, in accordance with the provisions of clause 11.6.
Agreed PPDN Date means the date the PPDN is agreed or determined pursuant to clause 11.6.
Allowable Capital Expenditure means:
(a) all moneys required to be paid pursuant to every Early Purchase Contract, Standard
Purchase Contract, Advance Existing Purchase Contract and Secure Tenant Contract
(including without limitation the purchase price where calculated and payable as
provided in this Agreement, payments under the Contribution Policies, home loss
payments and early redemption payments) and every Voluntary Advance Purchase
Contract Provided that:
(i) any part of the purchase price in respect of a property acquired pursuant to a
Voluntary Advance Purchase Contract which exceeds the open market value
of such property (as determined in accordance with Part 4 of Schedule 2 or
any costs including Stamp Duty Land Tax attributable to (or which would not
otherwise have been payable if it were not for) the element of the price which
exceeds the open market value as so determined) without the consent of the
Council;
(ii) the aggregate amount of payments towards or cost incurred in the acquisition
of property taking the aggregate cost of acquisition under Voluntary Advance
Purchase Contracts to more than 5,000,000 without the consent of the
Council;
(Ni) any payment for Adaptations up to the Adaptation Contribution Cap;
(iv) any payment towards Car Parking and Garden Compensation Policy as paid
under PartS of Schedule 2; and
(v) any payment towards Considerate Constructors Compensation Policy as
paid under clause 32.2,
shall not be included as Allowable Capital Expenditure;
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(b) all sums which are to be Allowable Capital Expenditure by virtue of clause 2 of the
Compulsory Purchase, Closure Order and Appropriation Scheme Costs and
Compensation Agreement; -
(c) Stamp Duty Land Tax paid by the Buyer to a Qualifying Owner or otherwise pursuant
to the terms agreed in connection with any Early Purchase Contract, Standard
Purchase Contract, Advance Existing Purchase Contract or Voluntary Advance
Purchase Contract (subject in the case of Voluntary Advance Purchase Contracts to
the aggregate cap of 5,000,000 and the exclusion of tax triggered by over market
value consideration referred to in (a) above);
(d) reasonable legal and valuation fees properly incurred in connection with the entering
into or administration of any Early Purchase Contract, Secure Tenant Contract,
Standard Purchase Contract, Advance Existing Purchase Contract and Voluntary
Advance Purchase Contract (subject in the case of Voluntary Advance Purchase
Contracts to the aggregate cap of 5,000,000 referred to in (a) above) including those
paid to the Panel Advisors on behalf of sellers of Qualifying Acquisitions by way of
reimbursement.
Allowable Revenue Expenditure means expenditure comprising:
(a) ground rent paid out in respect of a property (including any paid on completion of the
acquisition of that property due to apportionments made on such completion for the
period after the date of completion);
(b) service charge and insurance costs payable in respect of a property (including any
paid on completion due to apportionments for the period after the date of completion);
(c) all other properly incurred outgoings of any description incurred in respect of a
property (including any paid on completion due to apportionments for the period after
the date of completion);
(d) costs incurred in connection with and/or the performance of obligations in any charge
entered into pursuant to clause 9.18;
(e) maintenance costs incurred in relation to a property so far as the same qualify to be
included as Allowable Revenue Expenditure pursuant to the provisions of clause 9;
(1) the reasonable and proper managing/letting agents fees incurred in respect of a
property (provided that if letting and management services are undertaken by the
Buyer or a Connected Party (as the case may be) the Buyer or the Connected Party
will be entitled to charge a market rate and this shall be included as Allowable
Revenue Expenditure);
(g) irrecoverable VAT incurred in respect to a property;
(h) tax deductible or payable in respect to income earned from a property after due
allowance for any available allowance or set-off and the Buyer agrees to act
reasonably and to apply tax accounting and audit policies with respect to the manner
in which income is received or treated in its accounts which are consistent with such
policies as are applied in the preparation and audit of the financial statements and
accounts for the whole of the corporate group of which the Buyer is a member
provided that the Buyer should not be obliged to utilise allowances or tax credits from
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activities in other parts of the Buyers corporate group which do not relate to the
Development; and
(i) all other taxes, rates levies or duties (including any paid on completion due to
apportionments) properly payable in respect to a property,
in each case incurred in relation to a property acquired by way of a Qualifying Acquisition and less all
rent or other income received from such property.
Annual Accounting Date means the date in each year chosen by the Relevant Entity from time to
time to which its annual accounts shall be prepared.
Annual NAV Certification Date means in the case of an Annual NAV Report the relevant Annual
Accounting Date.
Annual NAV Report means a report prepared pursuant to paragraph 2 of Schedule I that:
(a) certifies the aggregate NAV of the assets of any Relevant Entities;
(b) specifies the Additional Qualifying Asset Value; and
(c) specifies the aggregate of (a) and (b) this being the Total NAV,
as the relevant Annual NAV Certification Date.
Appeal means all or any of the following:
(a) an application to the Secretary of State under sections 78 and 79 of the Planning Act
following a Planning Refusal; or
(b) an application to the local planning authority under section 73 of the Planning Act for
development without complying with one or more conditions in a Planning
Permission; or
(c) a Call-in; or
(d) an appeal to the Secretary of State in accordance with section 20 of the Listed
Buildings Act against a Planning Refusal; or
(e) an application under section 19 of the Listed Buildings Act for development without
complying with one or more conditions in a conservation consent.
Applicable Security Arrangements means the security arrangements applicable to the assets in the
SAP from time to time as provided in Schedule 1.
Appropriate meana to appropriate Council interests for planning purposes by the Council under
section 122 of the Local Government Act 1972 (which shall have the effect, inter alia, of applying
section 237 of the Town and Country Planning Act 1990).
Appropriation means the appropriation of land belonging to the Council which is not Appropriation
Scheme Land.
Appropriation Scheme means a scheme proposed by the Buyer (including all required
documentation for the implementation of the scheme) for the transfer of the interests of the Buyer or
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of the Connected Party (or in the case of the Seagrave Road Site any interest of the Buyer, any
Connected Party or Seagrave Road LP) in the Appropriation Scheme Land to the Council to allow for:
(a) the acquisition by agreement of the Appropriation Scheme Land by the Council for
planning purposes including enabling the implementation of and compliance with any
Planning Permission and Planning Agreement (pursuant to section 227 of the Act
which shall have the effect, inter alia, of applying section 237 of the Act); and
(b) the subsequent transfer back to the Buyer, the relevant owner or a Connected Party
of the freehold or long leasehold interest in the Appropriation Scheme Land so
transferred to the Council,
Provided That in the case of the Seagrave Road Site the transfer or lease shall be to the
Buyer or a Connected Party or to Seagrave Road LP.
Appropriation Scheme Land means:
(c) the Seagrave Road Site; and/or
(d) other property within the Earls Court Regeneration Site which the Buyer or the
Guarantor or any Connected Party or any of them owns or has an interest.
Approved Closure Order means a Closure Order promoted by the Council which has been
approved by the Buyer in accordance with paragraph 5.11.2 of Part I of ScheduleS.
Approved CPO means a CPO which has been approved by the Buyer in accordance with paragraph
5.10.3 of Part 1 of Schedule 6.
Assessment Date means the date 5 Working Days after the provision of a NAV Report to the Council
pursuant to Schedule 1.
Assured Tenant means a tenant of a Registered Provider under an assured tenancy (within the
meaning of the Housing Act 1988) and resident within the Option Land as at the date of the Detailed
Needs Assessment.
Auditor means the auditors of the Relevant Entity commissioned to prepare any NAV Report or the
confirmation required under paragraph 2.4.3 of Schedule 1.
Balance means 74,500,000 (or 75,000,000 if the Seagrave Road Houses are included in the
Option Land) but subject to adjustment in accordance with clause 8.1.4(b) if applicable.
Base GEA means 9,926,911 square feet (being the total GEA of 10,113,417 square feet less the
areas for use as community cultural and educational purposes) being the GEA within the Scheme
Overage Area apportioned to each part of the Scheme Overage Area as shown in Schedule 27 which
the Parties have agreed to use as a base figure for the purposes of the calculation of Scheme
Overage).
Base Transfer means the transfer in the form contained in at Schedule 14.
Blight Indemnity Agreement means an agreement dated 16 March 2012 and made between the
Council, the Buyer and the Guarantor as extended by letter dated 9 July 2012.
Blight Notice has the meaning set out in the Compulsory Purchase, Closure Order and Appropriation
Scheme Costs and Compensation Agreement.
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Build Phase means that part or parts of the Replacement Homes Redevelopment Area on which the
Buyer proposes to build, is building or has built Replacement Homes for the Relevant Demolition
Phase.
Buyer Insolvency NAV Report means a report prepared pursuant to paragraph 1.1.2 of Schedule 16
that:
(a) certifies the aggregate NAV of the assets of any entity that is to have direct liability to
the Council with regard to the Outstanding Liabilities (whether as principal or
guarantor) following the completion of a Deed of Novation pursuant to paragraph 1.1
of Schedule 16;
(b) specifies the Additional Qualifying Asset Value; and
(c) specifies the aggregate of (a) and (b) as being the Total NAV,
as at a date specified in the report after the date of the relevant Insolvency.
Buyers Appropriation Scheme Notice means as defined in paragraph 5.1 of Part I of Schedule 6.
Buyers Estate Assets means any properties acquired by the Buyer (or relevant nominee) under any
Early Purchase Contract, any Advance Existing Purchase Contract and Secure Tenant Contract and
Standard Purchase Contract or any Voluntary Advance Purchase Contract or pursuant to the Blight
Indemnity Agreement or the Compulsory Purchase, Closure Order and Appropriation Scheme Costs
and Compensation Agreement.
Buyers Novatee has the meaning as in Schedule 16.
Buyers Overage Cap means 65,000,000.
Buyers Solicitors means Pinsent Masons LLP of 30 Crown Place, London EC2A 4ES (Ref:
NJB/638930.07000/AMPL) or such other firm of solicitors as the Buyer notifies to the Council in
writing.
Call-in means the reference of a Planning Application to the Secretary of State under section 77 of
the Planning Act.
CapCo PLC means Capital & Counties Properties PLC company number 07145051.
Capped Compensation and Costs means the aggregate of the following:
(a) all sums payable by the Buyer under the Blight Indemnity Agreement;
(b) all sums payable by the Buyer under Schedule 2 (other than sums paid in respect of
a Voluntary Advance Purchase Contract to the extent that the same do not qualify as
Allowable Capital Expenditure); and
(c) any sums payable by the Buyer under the Compulsory Purchase, Closure Order and
Appropriation Scheme Costs and Compensation Agreement (other than the Non
Deductible Compensation and Costs).
Car Parking and Garden Compensation has the meaning given to it in paragraph 4.2.8 of Part I of
Schedule 2.
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Car Parking Ratio means the ratio of car parking spaces per residential unit (regardless of whether
or not it is a Replacement Home) permitted by the Planning Permission or a related Planning
Agreement.
Car Parking Space means a car parking space that the Buyer makes available to the Council
pursuant to the terms of this Agreement.
Certified Phase means any Phase for which, at the Halfway Condition Date, there is a Live Agreed
PPDN in respect of which the Independent Certifier has issued Independent Certifiers Habitable
Certificates (or the Buyer would be entitled for such to be issued) for all of the Replacement Homes
(save for those Replacement Homes that the Buyer will make available pursuant to clause 13.2.1(b)
set out in such Live Agreed PPDN.
Challenge means any application to the court by a third party for judicial review, or any ultra vires
claim, or other challenge (including a statutory challenge) by a third party as to:
(a) any decision made or to be made (including the decision to enter into this
Agreement), or any action taken or to be taken, or any omission, inaction or non-
determination by the Council or any failure by the Council to reach an agreement with
a third party in relation to the Development; or
(b) any decision made or to be made, or any action taken or to be taken, or any
omission, inaction or non-determination by an Administrative Body, or any failure by
an Administrative Body to reach an agreement with the Council and/or the Buyer
and/or any other person or legal entity, in relation to the Development.
Challenge Period means whichever of the following applies:
(a) the period of 6 weeks following an order or action to which section 288 of the
Planning Act and section 23 of the Acquisition of Land Act 1981 apply; and
(b) the period of 3 months following any other order or action of the Secretary of State or
of any other competent authority; and
(c) the period of 6 weeks following any order, action or decision of any court in
Proceedings.
Closure Order means all statutory or regulatory orders required for the pedestrianisation, diversion,
stopping-up, or closing of highways including footpaths and/or any order for controlling or regulating
vehicular and other traffic (including pedestrians) to enable the whole or part of the Development to
be carried out and used.
Closure Orders Compensation and Costs means the same as in the Compulsory Purchase,
Closure Order and Appropriation Scheme Costs and Compensation Agreement.
Collateral Security means the securities to be provided and maintained pursuant to paragraph 3 of
Schedule 1 in order to provide the Minimum Security Cover.
Compensation Overage means the overage calculated in accordance with Part 3 of Schedule 10.
Compensation Overage Area means all such parts of the Option Land (or any interest of the Council
in it) which as at the earlier of the Final Phase Long Stop Date and the date on which this Agreement
is Terminated or Expires has not already been transferred to the Buyer (save for land to which the
Buyer is absolutely entitled to a transfer of and which remains to be completed).
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Compensation Overage Disposal means a Disposal of land forming part of the Compensation
Overage Area.
Compensation Overage Period means the period of 5 years commencing on the earlier of:
(a) the Final Phase Long Stop Date; and
(b) Termination or Expiry of this Agreement.
Compensation Overage Rate means 12,500,000 per acre adjusted in line with the movement in
RPI from the date upon which the first Advance Payment becomes due until the end of the calendar
month preceding the relevant Compensation Overage Disposal such adjustment to be in the same
manner as set out in clause 8.1.4(b).
Compulsory Purchase, Closure Order and Appropriation Scheme Costs and Compensation
Agreement means an agreement made on even date between the Council, the Buyer and the
Guarantor.
Connected Party means a company, limited partnership or other entity which is any of the following:
(a) a person connected with the Buyer and/or the Guarantor and/or CapCo PLC within
the meaning of section 839 of the Income and Corporation Taxes Act 1988; or
(b) any subsidiary undertaking or parent undertaking (as has the same meaning as set
out in section 1162 of the Companies Act 2006) of the Buyer and/or the Guarantor
and/or CapCo PLC or any subsidiary undertaking of a parent undertaking of the
Buyer and/or the Guarantor and/or CapCo PLC or any subsidiary or holding company
(as has the same meaning as set out in section 1159 of the Companies Act 2006) of
the Buyer and/or the Guarantor and/or CapCo PLC; or
(c) an entity in which the Buyer and/or the Guarantor and/or CapCo PLC and/or any
Project Funder (whether jointly or otherwise) have a Controlling Interest; or
(d) an entity with which the Buyer and/or the Guarantor and/or CapCo PLC has entered
into any form of joint venture, collaboration or other profit sharing arrangement in
respect of the Development or any part or parts thereof.
Constructors Compensation Cap means the sum of 200,000.
Contribution Policies has the meaning given to it in paragraph 4 of Part I of Schedule 2.
Controlled Dealing means the transfer of the freehold of the Relevant Land or the completion of the
grant of a lease for a term of more than 35 years but excluding leases or transfers of land for utility
infrastructure, highway, public amenity community uses or other non-residential purposes.
Controlling Interest means:
(a) an interest in shares in a company conferring in the aggregate 50% or more of the
total voting rights conferred by all the issued shares in that company taking account
of restrictions on voting rights contained in the articles of association of that company;
or
(b) an interest in 50% or more of the total voting rights in a limited partnership or 50% or
more of the decision-making powers in any other vehicle.
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Council Abandonment Event means the occurrence of any of the events described in paragraphs
5.8.4, 5.10.5, 5.13.3(e) of Part I of Schedule Gas a Council Abandonment Event.
Council Owned Residential Units means all residential dwellings owned by the Council at the
Option Land (in respect of which the Parties acknowledge that if any Secure Tenants exercise their
Right to Buy and complete the acquisition of their dwellings such dwellings will cease to be treated as
Council Owned Residential Units and will be treated as Privately Owned Residential Units).
Councils Solicitors means SNR Denton UK LLP (ref: RGB190883.00001) or such other firm of
solicitors as the Council notifies to the Buyer in writing.
Counsel means counsel with at least 10 years experience in compulsory purchase procedures and
compensation claims and planning matters as the Council shall select in consultation with the Buyer
and shall jointly appoint with the Buyer.
CPO means a compulsory purchase order authorising the acquisition by the Council of:
(a) any (i) Third Party Interests in the Option Land and/or (H) Third Party Interests
affecting the Option Land (but for the benefit of a property situated outside of the
Option Land) to the extent such Third Party Interests inhibit or restrict the carrying out
and/or use of the Development of the Option Land and/or (iii) any Third Party
Interests other than (i) needed for any highways works or other mitigation measures
required by a Planning Permission and/or a Planning Agreement or otherwise
required by the local planning or highways authority for the carrying out and/or use of
the Development on the Option Land (which could include Third Party Interests
outside the Earls Court Regeneration Site but within the Councils administrative
area); and/or
(b) any (i) Third Party Interests in the Seagrave Road Site (save for any interests owned
by the Buyer or a Connected Party) and/or (ii) any Third Party Interests affecting the
Seagrave Road Site (but for the benefit of a property situated outside the Seagrave
Road Site) to the extent that such Third Party Interests inhibit or restrict the carrying
out and/or use of the Development of the Seagrave Road Site; and/or (Ni) any Third
Party Interests other than the above needed for any highways works or other
mitigation measures required by a Planning Permission and/or a Planning Agreement
or otherwise required by the local planning or highways authority for the carrying out
and/or use of the Development on the Seagrave Road Site (which could include Third
Party Interests outside the Earls Court Regeneration Site but within the Councils
administrative area); and/or
(c) any (i) other Third Party Interests in the Earls Court Regeneration Site (excepting the
interests of TfL in the TfL Land and non-TfL interests in the TfL Land until TfL has
disposed of an interest in all or part of the ilL Land to the Buyer or a Connected
Party, whereupon such non TfL interests come within this paragraph (c) unless
acquired by the Buyer or a Connected Party) and/or (ii) any other Third Party
Interests to the extent such Third Party rights inhibit or restrict the carrying out and
use of the Development which benefit land or property situated within the Councils
administrative area and/or (Hi) any other Third Party Interests needed for any
highways works or mitigation measures required by a Planning Permission and/or
Planning Agreement or otherwise required by the local planning authority or a
highways authority for the carrying out and/or use of the Development (which could
include Third Party Interests outside the Earls Court Regeneration Site but within the
Councils administrative area) and shall not include any interest of the Buyer or a
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Connected Party in the Earls Court Regeneration Site without the prior written
consent of the Buyer,
in each case including the subsoil of any existing highway within the Option Land and
required for the Development and to the mid point of any highway adjacent to the external
boundaries of the Option Land and the Seagrave Road Site and in each case pursuant to
section 226 of the Planning Act and/or section 13 of the Local Government (Miscellaneous
Provisions) Act 1976 and/or any other powers so enabling and shall not include any interest
of the Buyer or a Connected Party in the Earls Court Regeneration Site without the prior
written consent of the Buyer.
CPO Budget means a total CPO Compensation and Costs budget estimate.
CPO Compensation means the compensation payable or paid to claimants in respect of Third Party
Interests in accordance with the Compulsory Purchase, Closure Order and Appropriation Scheme
Costs and Compensation Agreement.
CPO Compensation and Costs means the CPO Compensation and Costs as set out in Schedule I
to the Compulsory Purchase, Closure Order and Appropriation Scheme Costs and Compensation
Agreement.
CPO Implementation Programme means a programme agreed between the Council and the Buyer
for acquiring Third Party Interests which, by virtue of a confirmed CPO or negotiations with the owners
of Third Party Interests, the Council is authorised to acquire and which, where applicable, will have
due regard to the rehousing programme, Independent Certifiers Habitable Certificates and above all
the need to secure vacant possession of Third Party Interests in a Satisfactory CPO by the Initial
Target Vacant Possession Date, the VP Target Date and the VP Date, as applicable.
CPO Land means land the subject of Third Party Interests to which a CPO or proposed CPO relates.
CPa Restart Notice means a notice served upon the Council by the Buyer in respect of a proposed
CPO which has been the subject of a CPO Suspension Notice.
CPO Start Date means the date on which the Council receives a CPO Start Notice.
CPO Start Notice means a notice served upon the Council by the Buyer requiring the Council to
commence preparing to make a CPO and if such a notice is in respect of any part of the Option Land
it shall only be served where that part is the subject of the Demolition Phase identified in an Agreed
PPDN.
CPO Suspension Notice means a notice served by the Buyer upon the Council in respect of a
proposed CPO where either:
(a) not all the Reserved Matters approvals applied for by the Buyer in respect of the part
of the Development to which the CPO relates have received approval; or
(b) in the opinion of the Buyer such a Reserved Matters approval is the subject of
Onerous Planning Conditions relevant to such part of the Development,
and the effect of such notice shall be that:
(I) the Council shall suspend carrying out any work (other than responding to
any Blight Notice or Proceedings) in respect of a proposed CPO until a CPO
Restart Notice is served by the Buyer on the Council PROVIDED THAT work
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may continue as specified in writing by the Buyer to the Council during such
suspension; and
(ii) the Time Critical Item Completion Period in respect of such proposed CPO is
suspended (whether or not the Buyer has specified in writing the continuation
of any work during such suspension) until a CPO Restart Notice is served.
CPO Trigger Date means the date of a CPO Start Notice in respect of one or more Agreed PPDNs
for a Demolition Phase.
Damages Balance means all outstanding damages remaining due but unpaid by the Council to the
Buyer on Termination of this Agreement in accordance with the provisions of Schedule 16.
Deductions Account means an annual account prepared in accordance with the provisions of clause
9.
Deed of Novation means a deed of novation in the form (or substantially in the form) as set out at
Schedule 17 with such amendments as may be required depending on whether the Guarantor intends
to assume the liabilities of the Buyer under paragraph 1.1.2 of Schedule 16.
Deemed Refusal means a failure by the local planning authority to give notice as described in
section 78(2) of the Planning Act within the prescribed period (and including any extended period
agreed between the Buyer and the local planning uthority).
Demolition Phase means that part of the Option Land that the Buyer identifies (pursuant to clause
11) as being a phase that it wishes to bring forward, in order to facilitate the demolition and
construction of the Development, and in relation to which the Council will be obliged (pursuant to the
terms of this Agreement) to decant any residents and transfer to the Buyer.
Detailed Needs Assessment means an assessment by the Council of the Needs of all Secure
Tenants and Assured Tenants, and any family members lawfully living with them on a permanent
basis at the time of the assessment, living within the Demolition Phase identified in a PPDN.
Development means the development of the whole or part of Earls Court Regeneration Site,
including on a phase by phase basis, to create a mixed-use high-quality scheme reflecting the design
principles and concepts as set out in the relevant Planning Permission and Reserved Matters
approvals or any replacements, substitutions, variations or amendments thereto secured by the Buyer
or secured with the Buyers consent or approval Provided that any application for planning permission
in respect of the Main Site or any replacements, substitutions, variations or amendments thereto shall
be in general accordance with the scheme applied for pursuant to the Planning Application (Main
Site).
Development LBHF means Development of that part of the Main Site falling within the London
Borough of Hammersmith and Fuiham comprising demolition of existing buildings and the creation of
any or all of open space and mixed-use development of office, residential, hotel, serviced apartments,
leisure, hospital, education/health/community/culture use, car parking, replacement of existing depot
structure with new stabling structure, highway alterations and decking structures over railway lines
and tunnels, waste and utilities temporary and incidental works.
Development RBKC means Development of the Earls Court Site RBKC comprising demolition of
existing buildings and the creation of any or all of open space and mixed use development of office,
residential, hotel, serviced apartments, leisure, hospital, education/health/community/culture use, car
parking, works at Earls Court station, ticket hall, escalators, works to existing tunnel to create direct
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access from the Main Site to the station, highway alterations and decking structures over railway
lines, demolition and replacement of the depot structure.
Disposal means a sale for a capital sum by way of a transfer of a freehold or the grant of a lease for
a premium.
Earls Court Regeneration Site means the land shown edged red on the plan attached and marked
Plan A being the Earls Court regeneration area (currently including but not limited to the land
commonly known as the Lillie Bridge Depot, the West Kensington estate, the Gibbs Green estate,
Gibbs Green School, the Seagrave Road Site, ECI and EC2), as the same may be varied from time
to time pursuant to the terms of this Agreement.
Earls Court Site RBKC means the land and property within the Royal Borough of Kensington and
Chelsea as shown edged dotted red in Planning Application (Earls Court) on plan ECM2-PA-03-101-
A.
Early Purchase Contract means the contract to be entered into between the Buyer and the
registered proprietors of Privately Owned Residential Units in accordance with clause 18.
Early Purchase Contract Financial Cap means 7,500,000.
Early Purchase Contract Purchase Price means the purchase price that the relevant Owner would
receive pursuant to the terms of the Early Purchase Contract as agreed or determined in accordance
with the provisions of Schedule 2.
ECI means that the part of the Earls Court Exhibition Centre known as Earls Court I shown edged
red on the plan attached and marked EC1 and EC2 Outline Plan.
EC2 means that part of the Earls Court Exhibition Centre known as Earls Court 2 shown edged red on
the plan attached and marked ECI and EC2 Outline Plan.
Estimated Habitable Date means each date notified to the Council as the anticipated date on which
an Independent Certifiers Habitable Certificate will be issued in relation to the Replacement
Accommodation for the Relevant Phase (as each date may change from time to time) (or such later
date as may be referred to in a Home Election Notice).
Excluded Areas means:
(a) where they are external all of the following: highways, roadways, footpaths,
balconies, forecourts, rooftops, terraces, canopies, fire escapes, open bin stores,
service yards, gardens, landscaped areas, car parking, walls, fences, and buildings or
structures housing any utilities or Service Media (whether or not owned by a statutory
provider) or any waste disposal apparatus used in connection with any development;
and
(b) under floor voids, any parts of the undercroft which are not Lettable Undercroft, any
area the permitted use of which pursuant to the Satisfactory Scheme Overage
Planning Permission is for community, cultural or educational purposes (making due
allowance for the extent to which such community, cultural or educational purpose is
intended to be rentalised or to generate income, licence fees or capital receipts at
rates equivalent to other commercial uses on the Development) and any land owned
by the Buyer or a Connected Party at the date of this Agreement or subsequently
acquired by the Buyer or a Connected Party otherwise than pursuant to the
consideration paid by the Buyer to the Council under the terms of this Agreement.
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Exclusivity Agreement means an agreement dated 29 July 2011 and made between the Council
and Capital & Counties Properties PLC as varied by a supplemental agreement dated 29 July 2012.
Existing Homes means all homes on the Option Land that, as at the date of this Agreement, were
Council Owned Residential Units, Privately Owned Residential Units or RP Owned Residential Units.
Expert means as defined in clause 40.
Expiry in relation to this Agreement means any of the following:
(a) the Final Phase Long Stop Date has occurred;
(b) Phase Completion has occurred in respect of all Phases;
(c) a Trigger Notice has not been served within one month of the Councils notice
pursuant to paragraph 1.9 of Schedule 16; or
(d) the Buyer has served a Scheme Discontinuance Notice,
and Expire Expires and Expired shall be construed accordingly.
Farm Lane means all that freehold land known as 11 Farm Lane, Fulham Broadway, London SWIG
1PU as shown edged red on the plan attached with drawing number is 55100/66 as labelled 11 Farm
Lane and which comprises part of the land registered at the Land Registry under title number
NGLI 62125 and all of the land registered at the Land Registry under title number N0L226384.
Farm Lane Mortgage means the legal mortgage over Farm Lane to be provided by the Buyer to the
Council as part of the Collateral Security immediately following the transfer of Farm Lane to the Buyer
pursuant to this Agreement in the form of the draft mortgage in Part I of Schedule 19.
Farm Lane Transfer means the transfer deed effecting the transfer of Farm Lane from the Council to
the Buyer in accordance with the provisions of clause 2 and to be in the form (or substantially in the
form) of the transfer annexed at Schedule 21.
Final Account means the final account to be prepared pursuant to clause 9.
Final Accounting Date means 31 March next following the earliest of:
(a) the date upon which Phase Completion has occurred in respect of all Phases;
(b) the Final Phase Long Stop Date; and
(c) Termination or Expiry of this Agreement.
Final Phase Long Stop Date means 31 December 2035 (being the date after which no further CPU
Start Notices may be served).
Finally Disposed of means in the case of a Judicial Review:
(a) the determination of the Proceedings or action or appeal in question (and any further
appeal or appeals); and
(b) the expiration of any time allowed for an appeal against such determination, without
such appeal being made.
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Financial Assessment Date means the date of the application of the Financial Test (being not less
than 3 months prior to the date of any assignment or novation of this Agreement).
Financial Test means where the aggregate of the NAV of the assignee or the novatee (as the case
may be) and (if applicable) the NAV of any continuing or new guarantor and (if applicable) any other
proposed form of security acceptable to the Council acting reasonably is equal to or exceeds the
lower of:
(a) 120% of the Outstanding Liabilities at the Financial Assessment Date; and
(b) the Initial Guaranteed Amount.
Flex has the meaning given to it in clause 13.4.1 (and Flexed and Flexes shall be construed
accordingly).
GEA means gross external area as measured in accordance with the RICS Code of Measuring
Practice 6th Edition.
GGS Charge means the charge over the Buyers beneficial interest in Gibbs School to be provided by
the Buyer to the Council in the form of the draft charge in Part 3 of Schedule 19.
GGS Legal Mortgage means the legal mortgage in relation to Gibbs Green School in the form of the
draft legal mortgage in Part 4 of Schedule 19 that may be provided to the Council pursuant to
paragraph 3.28 of Schedule 1.
GIA means gross internal area as measured in accordance with the RICS Code of Measuring
Practice 6th Edition.
Gibbs Green School means all that freehold land known as Gibbs Green School, Mund Street,
London W14 9LY and which is shown edged red on the plan attached with drawing number 55100/65
as labelled 11 Mund Street (Gibbs Green School) and which forms part of the land registered at the
Land Registry under title number NGL210692.
Gibbs Green School Consents means the consents of the relevant Secretary of State (if required) to
the disposal of Gibbs Green School under (a) schedule Ito the Academies Act 2010 and (b) section
77 of the School Standards and Framework Act 1998.
Gibbs Green School Schedule of Condition means the photographic schedule of condition relating
to Gibbs Green School annexed hereto and dated 1 November 2012.
Gibbs Green School Transfer means the transfer deed effecting the transfer of Gibbs Green SchoQi
from the Council to the Buyer in accordance with the provisions of clause 2 and to be in the form (or
substantially in the form) of the transfer annexed at Schedule 21.
Guaranteed Amount means the amount defined in paragraph 2.9 of Schedule 1 subject to revisions
from time to time in accordance with Schedule 1.
Guarantor Insolvency NAV Report means a report prepared pursuant to paragraph 1 of
Schedule 16 that:
(a) certifies the aggregate NAV of the assets of any Relevant Entities but including the
proposed new guarantor pursuant to paragraph I of Schedule 16 in lieu of the
guarantor that shall be Insolvent; and
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(b) specifies the Additional Qualifying Asset Value; and
(c) specifies the aggregate of (a) and (b) as being the Total NAy,
as at a date specified in the report after the date of the relevant Insolvency of the Guarantor.
GVD means a general vesting declaration made under the Compulsory Purchase (Vesting
Declarations) Act 1981.
Habitable means:
(a) the Replacement Home meets all the aspects of the Replacement Home Base
Specification and agreed Integral Adaptations applicable to that Replacement Home
(in accordance with the Home Allocation Plan) are complete save for: (i) any
Snagging Items and (ii) any Adaptations for which the Council has not paid (once the
Adaptation Contribution Cap has been exceeded);
(b) the Replacement Home and/or the Building (as defined in the Replacement
Accommodation Lease (once agreed pursuant to the terms of this Agreement)) are
connected to foul and surface water drains water and electrical supplies;
(c) the communal parts (as referred to in the Replacement Accommodation Lease (once
agreed pursuant to the terms of this Agreement)) are complete in accordance with the
requirements of the Replacement Home Base Specification to the extent reasonably
required for beneficial use and occupation of the Replacement Home provided that
for the avoidance of doubt:
(i) soft landscaping need not be practically complete if it is scheduled to be
carried out in the next planting season; and
(ii) final surfaces of all roads and footpaths to be adopted need not be practically
complete;
(d) there are adequate and lawful means of pedestrian access to and egress from the
Replacement Home to an adopted highway Provided that the Independent Certifier
shall not be entitled to object to any means of access (whether temporary or
permanent) where the Council has approved such access; and
(e) where a dedicated car parking space is to be provided with the Replacement Home
or the right to use or share a car parking area or space or spaces is to be granted by
the Replacement Accommodation Lease, there are adequate and lawful means of
vehicular access to and egress from such car parking space to an adopted highway.
Habitable Date means the date on which an Independent Certifiers Habitable Certificate is issued.
Halfway Condition means that, in respect of Replacement Homes that are being provided to replace
Exisiting Homes that are Social Housing Units, the Independent Certifier has issued one or more
Independent Certifiers Habitable Certificates (or the Buyer would be entitled for such to be issued at
the relevant date) in respect of:
(a) no fewer than 294, or if the Seagrave Road Houses are included 297, Replacement
Homes; or
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(b) Replacement Homes with a total GIA of not less than 26,270 square metres or if the
Seagrave Road Houses are included 26,538 square metres,
subject to the adjustment of the figures in (a) and (b) as may be required pursuant to clause 8
and Schedule 18.
Halfway Condition Date means that date that is the day after the tenth anniversary of this
Agreement as extended by the provisions of Schedule 18.
Holding Cost Allowance means a notional rate of interest (at the rate of 6.5% above the 6 months
London Interbank Offered Rate (LIBOR) from time to time (or if such rate shall cease to be published
such equivalent rate as may be agreed between the Parties or in default of any agreement as may be
determined by an Expert in accordance with clause 40)) which shall accrue to the Buyer in respect of
Allowable Capital Expenditure and Allowable Revenue Expenditure incurred by the Buyer in respect
of the following periods:
(a) for Allowable Capital Expenditure in respect of the period from the date such
expenditure was incurred until the date it is reimbursed by payment from or on behalf
of the Council or by deduction from Advance Payments; and
(b) for Allowable Revenue Expenditure from the 31 March next following the date such
expenditure was incurred until the date it is reimbursed by payment from or on behalf
of the Council or by deduction from Advance Payments.
Home Allocation Plan means a plan setting out the location of each Replacement Home and each
Car Parking Space (including each Outstanding Car Parking Space) for which one or more
Replacement Accommodation Lease(s) will be granted in relation to a Phase and which the Buyer
provides to the Council in accordance with clause 13.5.
Home Election Notice means a notice served by the Council on a Qualifying Owner following
notification by the Buyer in accordance with the Standard Purchase Contract agreed pursuant to
Schedule 2.
House Equivalent Replacement Home means a. property with direct ground floor acceas to the
outside and a garden or other defensible space.
House means a residential property which:
(a) does not have other accommodation above it vertically; and
(b) has a roof forming part of the property; and
(c) has a ground floor accommodation with access direct to the outside; and
(d) has an external self-contained garden or yard.
Implementation of Development means the date on which any material operation (as defined in
section 56(4) of the Planning Act) forming part of the Development begins to be carried out other than
(for the purposes of this Agreement and for no other purpose) operations consisting of site clearance,
demolition work, archaeological investigations, remedial work in respect of any contamination or other
adverse ground conditions, diversion and laying of services, erection of any temporary means of
enclosure and Implemented shall be construed accordingly provided that in the case of the
Satisfactory Main Site Planning Permission Implementation of Development shall require such
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material operations to be carried out in the Option Land Provided that Implementation shall be
deemed to have occurred when EC2 has been demolished.
Independent Certifier means the independent certifier(s) to be appointed by the Buyer pursuant to
clause 13.7.1 for the purposes of confirming when a Replacement Home is Habitable.
Independent Certifier Approved Terms means the minimum terms of appointment of the
Independent Certifier:
(a) an obligation on the Independent Certifier to enter into a collateral warranty in favour
of each of the Council, any Sub-Buyer, any guarantor (and any funder of the same)
and any other relevant third parties (including, but not limited to, any relevant building
contractor) in respect of the Independent Certifiers obligations under its appointment
with the Buyer;
(b) an appropriate duty of care to a standard reasonably to be expected of an appropriate
qualified and professional consultant suitably experienced in undertaking the role of
an employers agent/contract administrator on residential developments projects
similar to the Development;
(c) a requirement for the appointment to be by deed and for any breach to be actionable
for at least 6 years from performance or non-performance by the Independent
Certifier of the relevant service under the appointment;
(d) professional indemnity insurance cover of at least 10,000,000 in respect of each and
every claim (or such lower figure as the Buyer may accept in its absolute discretion);
(e) procedures to be followed by the Independent Certifier for the purposes of confirming
whether a Replacement Home is Habitable, such procedurea to comply with the
certification procedures detailed in this Agreement (including, but not limited to,
clause 13-7.3).
Independent Certifiers Habitable Certificate means a certificate issued by the Independent
Certifier stating that he is satisfied that the relevant Replacement Home(s) or Replacement
Accommodation is Habitable.
Independent Certifiers Non Habitable Certificate means a certificate issued by the Independent
Certifier stating that the relevant Replacement Home or Replacement Accommodation (as applicable)
not Habitable.
Independent Representative means the independent representative appointed by the Council in
accordance with the provisions of clause 24.2.
Indexed has the meaning given to it in paragraph 3.4 of Part 2 of Schedule 6 save where provided
otherwise.
Initial Assets means the first assets to be included in the SAP on the date of this Agreement as
described in paragraph 3.21 of Schedule 1.
Initial Guaranteed Amount means
(a) from the date of this Agreement to (but not including) the Trigger Date 50,000,000;
(b) from and including the Trigger Date the lowest of:
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(i) the sum of 75,000,000;
(H) from and including the date of payment of the first instalment of the Advance
Payment pursuant to clause 8, 60,000,000; and
(Hi) from and including the date of payment of the second instalment of the
Advance Payment pursuant to clause 8, 50,000,000,
subject to such adjustments as may be provided for pursuant to paragraph 5.6.11 of Part I of
Schedule 6.
Initial Target Vacant Possession Date means the date notified by the Buyer to the Council as
provided in the PPDN and/or the Agreed PPDN being the anticipated date by which the Council shall
deliver vacant possession of all of the properties located within a Demolition Phase.
Inquiry means such public inquiry as may be called by the Secretary of State to hear evidence and
determine any critical and substantive Planning Application, any CPO or any Closure Order or other
highways order in relation to the proposed Development.
Insolvent means:
(a) in relation to a company a receiver, administrative receiver or manager is appointed
over all or any of its assets or a provisional liquidator is appointed under section 135
of the Insolvency Act 1986 or it goes into liquidation either voluntarily or compulsorily
(other than a voluntary liquidation solely for the purpose of amalgamation or
reconstruction while solvent);
(b) in relation to a partnership or limited partnership:
(i) a voluntary arrangement or any compromise is made with all or any of its
creditors; or
(ii) a receiver or manager or (to the extent applicable) administrative receiver is
appointed over all or any material part of its assets; or
(Hi) it goes into liquidation either voluntarily or compulsorily (other than a
voluntary liquidation solely for the purpose of amalgamation or reconstruction
while solvent); or
(iv) the partnership or limited partnership has an administrator appointed;
(c) in relation to an individual a voluntary arrangement is made under Part VIII of the
Insolvency Act 1986 or a bankruptcy order is made under Part IX of the Insolvency
Act 1986 or he enters into any deed of arrangement or composition in satisfaction of
his debts,
and Insolvency shall be construed accordingly.
Interim Accounting Date means the half yearly date in each year chosen by the Relevant Entity from
time to time to which its half yearly accounts shall be prepared.
Interim Assessment Date means the date 5 Working Days after the provision of an Interim NAV
Report to the Council pursuant to Schedule 1.
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Interim NAV Certification Date means in the case of an Interim NAV Report the relevant Interim
Accounting Date.
Interim NAV Report means a report prepared pursuant to paragraph 2 of Schedule 1 that:
(a) certifies the aggregate NAV of the assets of any Relevant Entities;
(b) specifies the Additional Qualifying Asset Value; and
(c) specifies the aggregate of (a) and (b) this being the Total NAV,
as at the relevant Interim NAV Certification Date.
Judicial Review means in respect of a planning permission an application or appeal to the High
Court (whether by way of Part 54 of the Civil Procedure Rules or pursuant to section 288 of the
Planning Act) by any person to review any decision by the relevant Secretary of State or the local
planning authority relating to any Planning Application and any subsequent application or appeal to a
higher court and the reconsideration by the Secretary of State or the local planning authority of any
Planning Application upon remission to him or them by the High Court or any higher court.
Key Phase Criteria means:
(a) the provision of Replacement Homes on the Replacement Homes Redevelopment
Area;
(b) unless otherwise requested by residents, the provision of Replacement Homes within
the vicinity of each other in order to ensure that residents who are moving from
Existing Homes that are located in the immediate vicinity of each other on a
Demolition Phase can continue to live in the vicinity of each other;
(c) no resident of an Existing Home will need to move more than once.
LADS means liquidated and ascertained damages calculated in accordance with the provisions of
Part 2 of Schedule 6.
LADS Cap means the cap on LADS in the sum of 10 million Indexed.
LBHF Estates Solicitors means Ashfords LLP Solicitors or such other solicitors appointed from time
to time to give feedback on behalf of the Owners.
LBHF Land means those parts of the Main Site within the London Borough of Hammersmith and
Fulham.
Lettable Undercroft means all areas below ground level but only to the extent that such areas are
themselves intended to be rentalised or to generate income, licence fees or capital receipts in respect
of a Scheme Overage Use.
Liabilities means in respect of the Relevant Entity all the liabilities of that entity that shall have
accrued and that shall remain outstanding as at the NAV Certification Date (other than those under
(a) this Agreement or (b) the Compulsory Purchaae, Closure Order and Appropriation Scheme Costs
and Compensation Agreement or (c) any mortgage charge or other security relating to such liabilities
created by such agreements or in order to comply with such agreements regardless of whether the
Relevant Entity is itself a party to this Agreement) provided that:
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(a) contingent liabilities shall not be treated as Liabilities and only those liabilities that
shall have accrued and are required to be discharged at the NAV Certification Date
shall be treated as Liabilities save as provided in (c) below.
(b) where sums are payable periodically only such sums as shall be payable as at the
NAV Certification Date shall be treated as Liabilities save as provided in (c) below.
(c) sums payable on demand or upon the insolvency of the relevant entity shall however
be treated as Liabilities
(d) notwithstanding the foregoing provisions of this definition, any liabilities of the
Relevant Entity that shall have been assumed on terms that the claim of the relevant
creditor shall rank in priority after the discharge of any Outstanding Liabilities at the
NAV Certification Date shall not be treated as Liabilities,
Provided Further That (a) that save as to the specific directions set out in this definition (which
shall have precedence) Liabilities shall be determined in accordance with the Accounting
Standards and (b) that where on the NAV Certification Date the relevant entity has employees
who participate in a pension scheme an appropriate provision shall be made to take account
of any consequential liability that the Relevant Entity would have to discharge in relation to
such employees on the NAV Certification Date whether or not such liability is required to be
reported in the accounts of the Relevant Entity by reason of group accounting practice (b) any
dispute as to the liabilities that should be treated as Liabilities for the purposes of this
Agreement the amount thereof or the appropriate provision in relation to such liability under
(b) may be referred by the Buyer to an Expert for determination under clause 40.4.
Liability Release Certificate means a certificate pursuant to paragraph 2.15 of Schedule 1.
Live Agreed PPDNs means anyone of the following:
(a) an Agreed PPDN in relation to which a CPO Start Notice can be served;
(b) an Agreed PPDN in relation to which a CPO Start Notice has been served where the
Buyer has not yet confirmed to the Council, pursuant to paragraph 5.13.3(a) of Part I
of Schedule 6, that a confirmed Approved CPO is not a Satisfactory CPO or where
the Buyer has elected to recommence the CPO process pursuant to paragraph 5.15
of Part I of Schedule 6;
(c) an Agreed PPDN in relation to which a CPO Start Notice has been served and a
Satisfactory CPO has been obtained (including, for the avoidance of doubt, an
Agreed PPDN in relation to which a VP Requirement Notice is served subsequently
and an Agreed PPDN in relation to which the Demolition Phase identified in that
Agreed PPDN has been transferred to the Buyer pursuant to clause 12).
Live PPDN means a proposed PPDN served pursuant to clause 11.4 and which has not been
abandoned or become an Agreed PPDN.
Losses means all losses, indebtedness, claims, actions, damage, proper costs and expenses
(including the cost of legal or professional services), proceedings, demands and charges howsoever
arising and without implying limitation whether arising under or pursuant to statute or contract or at
common law.
MAC Certification Date means the date specified in the MAC NAV Report as the date to which it is
prepared provided that such date falls between the date of the relevant Material Adverse Change
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Notice served pursuant to paragraph 2.3 of Schedule 1 or request by the Council for a MAC NAV
Report pursuant to paragraph 2.4 of Schedule 1 (as the case may be) and the date of the actual MAC
NAV Report.
MAC NAV Report means a report prepared pursuant to paragraph 2 of Schedule 1 that:
(a) certifies the aggregate NAV of the assets of any Relevant Entities;
(b) specifies the Additional Qualifying Asset Value; and
(c) specifies the aggregate of (a) and (b) this being the Total NA!,
as at the relevant MAC Certification Date.
Main Site means the land and property within the London Borough of Hammersmith and Fulham and
the Royal Borough of Kensington and Chelsea as shown edged and dotted red in the Planning
Application (Main Site) on the plan attached numbered ECM2-PA-03-1O1 A.
Maintenance Policy means the maintenance policy agreed or determined pursuant to clause 9.
Maintenance Policy Objectives means the objectives of the Maintenance Policy as specified in
clause 9.
Material Adverse Change means:
(a) any material change in the Liabilities of the Buyer or the Guarantor or material
change in the constitution of the assets of the Buyer or the Guarantor that may occur
between Assessment Dates that would mean that the Guaranteed Amount would be
greater than the Guaranteed Amount that was applicable from the last Assessment
Date if the date of such notification was treated as an Assessment Date and that
Remedial Actions would need to be taken as provided in Schedule 1; or
(b) the lengthening of the period to the next Accounting Date or Interim Accounting Date.
Material Adverse Change Notice means a notice served by the Buyer on the Council in notifying the
Council of a Material Adverse Change.
Material Adverse Matter means such matter(s) as are set out in the title registers of the relevant
property and/or revealed by due diligence, which the Council, in its reasonable opinion, considers that
a reasonably prudent buyer having regard to the circumstances of the purchase and the Development
would not proceed.
Minimum Return Condition means a minimum anticipated return of 15% on anticipated Total
Development Costs.
Minimum Security Cover means the amount defined in paragraph 3.9 of Schedule 1.
NAR Mortgage means the legal mortgage over the Northern Access Road to be provided by the legal
owner of the Northern Access Road to the Council as part of the Collateral Security on the exchange
of this Agreement in the form of the draft mortgage in Part 2 of Schedule 19.
NAV Certification Date means the relevant date to which the Relevant NAV Report is to be prepared
in accordance with Schedule 1.
42878078.2\IoOS 27
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NAV Duty of Care means the duty of care to be provided in relation to NAV Reports and Interim NAV
Reports pursuant to paragraph 2.7 of Schedule 1.
NAV Report means a report prepared by the auditors or an independent firm of accountants on
behalf of the Buyer or the Buyers Novatee or by the auditors or an independent firm of accountants
on behalf of any other relevant entity for this purpose certifying the Net Asset Value of the assets held
by the relevant entity.
NAV Test means the test set out in paragraph 2.10 of Schedule 1.
Needs means:
(a) the type of Replacement Home (e.g. a House, a House Equivalent Replacement
Home or a flat);
(b) the location of the Replacement Home (e.g. by reference to floor if the Replacement
Home is a flat);
(c) the number of bedrooms required in a Replacement Home,
in order to accommodate a Secure Tenant or an Assured Tenant (who has elected to be
rehoused by the Council on the Development either before or during the Detailed Needs
Assessment), and any family members lawfully living with them on a permanent basis, and
Needs shall be determined by having regard to the following:
(d) the Councils allocation policy in relation to the provision of housing to Secure
Tenants. For the avoidance of doubt, if an Existing Home is partially unlawfully
occupied (e.g. where a room has been unlawfully sublet, but a Secure Tenant also
occupies) then, for the purposes of any Detailed Needs Assessment, only the Needs
of a Secure Tenant or the Assured Tenant, and any family members lawfully residing
with them on a permanent basis at the time of assessment, shall be taken into
account;
(e) any disabilities of the Secure Tenant, the Assured Tenant or any family members
lawfully living with them on a permanent basis;
(f) if an assessment of Needs under this definition would otherwise result in a
households Needs:
(i) being fewer bedrooms than the number of bedrooms in their Existing Home,
then the Needs of that household (for the purposes of the Detailed Needs
Assessment) shall be deemed to be one more bedroom than the Needs that
would otherwise be determined under this definition unless the Secure
Tenant or Assured Tenant has elected otherwise (either during or prior to the
Detailed Needs Assessment); or
() comprising a requirement for more than 5 bedrooms, then the Needs of that
household (for the purposes of the Detailed Needs Assessment) can only
ever result in a need that comprises 5 bedrooms only.
Negative Equity Compensation means both:
(a) that amount representing the difference between: (i) the Existing Home Purchase
Price or the Existing Home Valuation; and (ii) the Existing Home Acquisition Price
42878078.2\1o08 28
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(as all those terms are defined in the Standard Purchase Contract) as payable
pursuant to the relevant Standard Purchase Contract; and
(b) that amount representing the difference between: (I) the Existing Home Purchase
Price or the Existing Home Valuation: and (H) the Existing Home Acquisition Price
(as all those terms are defined in the Advance Existing Purchase Contract for
Qualifying Owners) as payable pursuant to the relevant Advance Existing Purchase
Contract.
Net Asset Value or NAV means in relation to the Relevant Entity the gross value of the assets of the
Relevant Entity less the Liabilities of the Relevant Entity.
New Rights means any new rights over the Option Land and/or any adjoining or adjacent land and/or
any other land required for the carrying out and use of the Development.
No Scheme World means the circumstances that would exist in relation to the relevant portion of the
Option Land if there had never been any Development.
Non-Deductible Compensation and Costs means the same as in the Compulsory Purchase,
Closure Order and Appropriation Scheme Costs and Compensation Agreement.
Non-Qualifying Owner means an owner of a Privately Owned Residential Unit who is living at that
Privately Owned Residential Unit as at the Standard Purchase Contract Trigger Date and who either:
(a) has been in occupation for less than one year as at the Standard Purchase Contract
Trigger Date; or
(b) would otherwise be a Qualifying Owner but who does not satisfy the requirement of
(b) in the definition of Qualifying Owner.
Non-Resident Owner means an owner of a Privately Owned Residential Unit who is not living at that
Privately Owned Residential Unit as at the Standard Purchase Contract Trigger Date (and who does
not fall into one of the exclusions in the definition of Qualifying Owner).
Northern Access Road means the property known as land lying to the south west of Philbeach
Gardens London registered with title absolute at the Land Registry under title number BGL66824.
Occupational Therapists means the professionally qualified occupational therapists employed by
the Council from time to time (and each shall be an Occupational Therapist).
Onerous Planning Conditions means an obligation in a Planning Agreement and/or one or more
conditions or limitations attached to a Planning Permission or an approval of Reserved Matters:
(a) which restricts or controls hours of trading or operation in respect of the non
residential elements of the Development in a way which is unacceptable to the Buyer
(acting reasonably);
(b) which restricts or controls the use of plant or hours of use of plant in a way which is
unacceptable to the Buyer (acting reasonably);
(c) either individually or together results in a return of less than 20% after carrying out an
internal rate of return valuation or would otherwise prevent or limit the carrying out of
the Development or any part of it or materially adversely affect the Total Development
42878078.2\1o05 29
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Costs, the rent levels achievable or the value of the completed Development and
prevent the satisfaction of the Minimum Return Condition;
(d) making a Planning Permission temporary in nature;
(e) making a Planning Permission personal to the Buyer or to any specific persons or
class of persons;
(f) preventing or limiting the Development or any part thereof or the implementation of a
Planning Permission without the agreement or co-operation of a third party which
cannot be obtained at reasonable cost;
(g) in the case of the Seagrave Road Site, planning permission requiring any public right
of access through or any public use of any part of the property to which a Planning
Permission applies over any highways or public open space forming part of the
property or other land save in so far as is contemplated by the Planning Application
(Seagrave);
(h) in the case of the Seagrave Road Site, planning permission requiring the property to
which a Planning Permission applies to be used for decant in relation to the
Development;
(i) limiting works, use or occupation or other activities that may be carried out on the
property to which a Planning Permission applies or any dealings of any description in
respect of such property by reason of circumstances relating to other land;
(j) purporting to materially alter the design or layout of the proposed development of the
Seagrave Road Site as shown in the Planning Application (Seagrave) or as
applicable the Planning Application (Main Site);
(k) in the case of the Planning Application (Main Site) or the Planning Application (Earls
Court) imposing a time limit within which the development of the Planning Application
(Main Site) or the Planning Application (Earls Court) must be begun of less than 15
years or applications for approval of Reserved Matters must all be made of less than
12 years pursuant to sections 91 and 92 of the Planning Act;
(I) in the case of the Planning Application (Main Site) or the Planning Application (Earls
Court) or any part of them adversely affecting or limiting any other land or interests
owned or controlled by the Buyer or any Connected Party;
(m) in the case of the Planning Application (Main Site) or the Planning Application (Earls
Court) preventing or limiting development of any phase of the Development by reason
of circumstances relating to any subsequent Phase of the Development that results in
a return of less than 20% after carrying out an IRR valuation;
(n) in the case of the Planning Application (Main Site) or the Planning Application (Earls
Court) restricts phasing in any way not contemplated by a Planning Application.
Option means the option granted by this Agreement to acquire the Option Land.
Option Land means the land shown edged red on the plan attached with drawing number 55100/75
as labelled Option Land Plan and which shall either include or exclude the Seagrave Road Houses as
provided in clause 8 but for the avoidance of doubt (a) this shall exclude Farm Lane and Gibbs Green
School) and (b) where the boundary of the Option Land follows the Councils title boundary it is
42878078.2\1008 30
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intended that the Option Land should extend to the full extent of the Councils title (c) the part of the
Option Land shaded blue shall be deemed to extend up to the adjacent boundaries of the land to be
transferred to the Buyer by the Gibbs Green School Transfer and (d) where the Councils title to the
parts of the land adjacent to the area shaded blue does not extend all the way to the part of the
Option Land shaded blue then the part of the Option Land shaded blue shall be deemed to extend to
the boundary of the Councils title and (e) the Option Land shall also include any land between the
land edged red on the said plan and the land to be transferred to the Buyer by the Gibbs Green
School Transfer.
Outline Annual NAV Report means the outline NAV Report in Part 3 of Schedule 1.
Outline Interim NAV Report means the outline NAV Report in Part 2 of Schedule 1.
Outstanding Car Parking Spaces means the number of Car Parking Spaces that the Buyer will
need to make available on subsequent Build Phases pursuant to Clause 13.3.3 and which will be
calculated using the following formula:
rTotal Number of Replacement Homes Car Parking Ratio 1
I x . 170
L~ Seagrave Road Site for the Seagrave Road Sitej
For example, if the number of Replacement Homes made available on the Seagrave Road Site was
185 and the Car Parking Ratio for the Seagrave Road Site was 0.6, the number of Outstanding Car
Parking Spaces would be calculated as follows (185 x 0.6) 70 = 41.
Outstanding Liabilities means (subject to the following provisos to this definition and to the
provisions of Schedule 1) the aggregate of the following liabilities of the Buyer to the Council as at the
Relevant Assessment Date (as agreed or in default of agreement as determined by an Expert
pursuant to clause 40):
(a) following the service of the Trigger Notice the liability of the Buyer to pay the Advance
Payments so far as these are outstanding at the Relevant Assessment Date (whether
or not actually due);
(b) the liabilities of the Buyer to the Council under the Compulsory Purchase, Closure
Order and Appropriation Scheme Costs and Compensation Agreement in relation to
statutory blight (save in relation to Third Party Interests already acquired at the
Relevant Assessment Date);
(c) the liabilities of the Buyer to the Council under the Compulsory Purchase, Closure
Order and Appropriation Scheme Costs and Compensation Agreement in relation to
the purchase of Third Party Interests pursuant to a CPO or an Appropriation (save in
relation to Third Party Interests already acquired at the Relevant Assessment Date);
and
(d) the aggregate of all sums owed to the Council in the event of Termination of this
Agreement and in respect to which the Council is entitled to take security pursuant to
clause 9.18.
PROVIDED THAT
(i) the cumulative total of (b) and (c) (together with any other liabilities within the
Capped Compensation and Costs) shall not exceed the Total CPO and
Closure Orders Compensation and Costs Sum;
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(H) any liabilities of the Buyer in relation to the purchase of any Third Party
Interest outside the Option Land or in relation to any Appropriation Scheme
or the purchase of additional land or rights from the Council shall not be
Outstanding Liabilities save insofar as they may be stipulated as such in any
Additional Costs and Compensation Security Arrangements that shall be in
effect at the relevant time
(Hi) In calculating the amount of such liabilities any sums that would be credited
to the Buyer if a Final Account where drawn up on the Relevant Assessment
Date shall be deducted other than (i) any Advance Payment that shall be
outstanding at the Relevant Assessment Date (ii) the 5,000,000 referred to
in clause 8.1.1 to be retained by the Council in all circumstances and (Hi) the
10,000,000 paid to the Council pursuant to clause 8.1.1 unless the Council
shall be obHged to refund the same to the Buyer as at the Relevant
Assessment Date.
Overage means the overage payable by the Council and or the Buyer as applicable in each of the
circumstances provided for in Schedule 10.
Owners means the Qualifying Owners, the Non-Qualifying Owners and the Non-Resident Owners.
Panel Advisors means together the Panel Dispute Valuers, the Panel Solicitors and the Panel
Valuers.
Panel Dispute Valuers means the panel of no fewer than 3 and no more than 8 independent
surveyors (whether an individual, a partnership, or a company) which may be established in
accordance with the terms of this Agreement as the Panel Dispute Valuers from time to time for the
purposes of resolving valuation disputes under the Early Purchase Contract, the Advance Existing
Purchase Contract or the Standard Purchase Contract and each is a Panel Dispute Valuer (and no
Panel Dispute Valuer may also be a Panel Valuer at the same time).
Panel Dispute Valuers Minimum Terms means:
(a) the ability of the Buyer, (or as applicable any Connected Party, any Sub-Buyer, any
Guarantor (and any funder of the same)) and the Council to rely upon each and every
valuation and any statements or confirmations provided in connection therewith;
(b) an appropriate duty of care to a standard reasonably expected of expert consultants
expert and experienced in undertaking the role of a valuer of residential dwellings;
(c) an agreed capped fee scale for the work to be undertaken;
(d) a requirement for the appointment to be by deed and for any breach to be actionable
for at least 8 years from the date of any breach;
(e) an agreement as to which residents will be entitled to be provided with one-off
valuation advice in accordance with the terms of this Agreement;
(f) professional indemnity insurance cover of at least 5,000,000 (or such lower figure as
the Buyer and the Council may agree each Party acting reasonably);
(g) agreed timescales for responses in connection with different types of dispute
resolution required;
42878078.2\1008 32
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(h) so far as reasonably possible the provision of a non-exclusive duty of care to the
relevant Owner; and
(i) such other terms as are otherwise agreed by the Buyer and the Council (each Party
acting reasonably).
Panel Solicitors means the panel of no fewer than 3 and no more than 6 independent residential
qualified conveyancers or solicitors (whether an individual, a partnership, or a company) to be
established in accordance with the terms of this Agreement (and each is a Panel Solicitor).
Panel Solicitors Minimum Terms means:
(a) an agreed capped fee scale for the legal advice to be provided;
(b) a requirement for the appointment to be by deed and for any breach to be actionable
for at least 6 years from the date of any breach;
(c) an agreement as to which residents will be entitled to be provided with legal advice in
accordance with the terms of this Agreement;
(d) professional indemnity insurance cover of at least 3,000,000 (or such lower figure as
the Council and the Buyer may agree each Party acting reasonably);
(e) agreed timescales for responses in connection with different types of legal input
required; and
(f) such other terms as are otherwise agreed by the Buyer and the Council (each Party
acting reasonably).
Panel Valuers means the panel of no fewer than 3 and no more than 6 independent surveyors
(whether an individual, a partnership, or a company) to be established in accordance with the terms of
this Agreement as the Panel Valuers from time to time (and each is a Panel Valuer).
Panel Valuers Minimum Terms means:
(a) the ability of the Buyer (or as applicable any Connected Party, any Sub-Buyer, any
Guarantor (and any funder of the same)) and the Council to rely upon each and every
valuation and any statements or confirmations provided in connection therewith;
(b) an appropriate duty of care to a standard reasonably expected of expert consultants
expert and experienced in undertaking the role of a valuer of residential dwellings;
(c) an agreed capped fee scale for each type of work which equal capped fee scales
which are reasonable at the time of appointment;
(d) a requirement for the appointment to be by deed and for any breach to be actionable
for at least 6 years from the date of any breach;
(e) an agreement as to which residents will be entitled to be provided with one-off
valuation advice in accordance with the terms of this Agreement;
(f) professional indemnity insurance cover of at least 5,000,000 (or such lower figure as
the Buyer and the Council may agree each Party acting reasonably):
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(g) agreed timescales for responses in connection with different types of valuation input
required;
U) so far as reasonably possible the provision of a non-exclusive duty of care to the
relevant Owner; and
(h) such other terms as are otherwise agreed by the Buyer and the Council (each Party
acting reasonably).
Permitted Sub Buyer means a Sub-Buyer that satisfies the Sub-Buyer Criterion.
Phase means a Demolition Phase and a corresponding Build Phase as:
(a) identified by the Buyer pursuant to clause 11.2; or
(b) identified in a PPDN, an Agreed PPDN or a CPO Start Notice (as applicable)
Phase IA Seagrave Road Affordable Housing means that part of the Affordable Housing to be
constructed pursuant to the Satisfactory Seagrave Planning Permission implemented by the Buyer
and having a total GlA of not less than 13800 square metres.
Phase Car Parking Space Allowance means the figure which results when the number of
Replacement Homes that will be made available by the Buyer under an Agreed PPDN (including any
Replacement Homes to be provided pursuant to a request by the Council to use any Flex and/or
Shortfall in relation to the Relevant Phase) is multiplied by the Car Parking Ratio applicable to the
relevant Build Phase with the answer rounded down to the nearest whole number.
For example, if the Planning Permission applicable to the Relevant Build Phase permits 0.6
car parking spaces per residential unit and 100 Replacement Homes will be made available
by the Buyer under the Agreed PPDN then the Phase Car Parking Space Allowance will be
60.
Phase Completion means completion of the sale and purchase of the Relevant Phase pursuant to
the terms of this Agreement.
Phase Completion Date means the latest of:
(a) the VP Date for the Relevant Demolition Phase; and
(b) the date 10 Working Days after the satisfaction of the Vacant Possession Condition
for the relevant Demolition Phase; and
(c) the date 10 Working Days after the form of Phase Transfer and plans are agreed or
determined pursuant to paragraph 2 of Schedule 7.
Phase House Equivalent Replacement Home Allowance means the maximum number of House
Equivalent Replacement Homes that the Buyer may make available to the Council in relation to the
Relevant Build Phase. This shall be the number of Existing Homes in the Relevant Demolition Phase
that are Houses less the Phase Replacement House Allowance. This is subject to such figure, when
added to the number of House Equivalent Replacement Homes that the Buyer may make available
pursuant to all Live Agreed PPDNs, not exceeding the Scheme House Equivalent Replacement Home
Allowance. If it would, then the Phase House Equivalent Replacement Home Allowance shall be the
Scheme House Equivalent Replacement Home Allowance less the number of House Equivalent
Replacement Homes that the Buyer may make available pursuant to all Live Agreed PPDNs.
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Phase Impact Assessment means in relation to any proposed Demolition Phase, a document that is
provided by the Buyer pursuant to clause 11.3 and which:
(a) comprises a draft Phase Impact Strategy; and
(b) contains the information detailed at paragraph 2 of the Phase Impact Assessment
attached at Schedule 22.
Phase Impact Strategy means a strategy that deals with the matters referred to in clause 1 of the
Phase impact Assessment attached at Schedule 22 and which is either agreed by the Parties or
determined by the Expert pursuant to clauses 11.3.3 and 11.3.4.
Phase Rehousing Report means the report to the Buyer as to the final outcome of the Detailed
Needs Assessment in relation to the Existing Homes located in the Demolition Phase identified in the
PPDN and which shall be in the form attached at Schedule 26 (or such other form as the Parties may
agree).
Phase Replacement Homes GIA Allowance means the maximum GIA of the Replacement Homes
that the Buyer may make available to the Council in relation to the Relevant Build Phase. This shall
be calculated by using the following formula:
Total number of bedrooms in the Existing Homes identified in a proposed Demolition x 41.45
Phase square
metres
This is subject to such figure, when added to the GIA of the Replacement Homes that the Buyer may
make available pursuant to all Live Agreed PPDNs, not exceeding the Scheme Replacement Homes
GIA Allowance. If it would, then the Phase Replacement Homes GIA Allowance shall be the Scheme
Replacement Homes GIA Allowance less the G IA of the Replacement Homes that the Buyer may
make available pursuant to all Live Agreed PPDNs.
Phase Replacement House Allowance means the maximum number of Replacement Homes that
are Houses that the Buyer may make available to the Council in relation to the Relevant Build Phase.
This shall be 60% of the number of Existing Homes in the Demolition Phase that are Houses, rounded
down to the nearest wholenumber. This is subject to such figure, when added to the number of
Replacement Homes that are Houses that the Buyer may make available pursuant to all Live Agreed
PPDNs, not exceeding the Scheme Replacement House Allowance. If it would, then the Phase
Replacement House Allowance shall be the Scheme Replacement House Allowance less the number
of Replacement Homes that are Houses that the Buyer may make available pursuant to all Live
Agreed PPDNs.
Phase Setting Process means each process commencing on the date on which the Buyer notifies
the Council pursuant to clause 11.2 that it has reasonably settled plans for a proposed Demolition
Phase in relation to which it may wish to serve a PPDN and concluding on the date on which either
the Buyer serves a GPO Start Notice in relation to the Demolition Phase proposed and/or agreed or
such other earlier date on which the process in relation to that Demolition Phase lapses pursuant to
and in accordance with the provisions of clause 11.
Phase Social Housing Unit Number Allowance means the number of Social Housing Units in the
relevant Demolition Phase.
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Phase Social Housing Unit GIA Allowance means the GIA to be applied in relation to the Social
Housing Units in the relevant Demolition Phase and which shall be calculated by using the following
formula:
Total number of bedrooms in the Social Housing Units identified in a proposed x 41 .45
Demolition Phase square
metres
Phase Social Housing Unit GIA Spend means the aggregate of the GIA of each Replacement
Home identified for the purposes of calculating the Phase Social Housing Unit Number Spend where
the GIA of each such Replacement Home is calculated in accordance with clause 13.2.
Phase Social Housing Unit Number Spend means such number of Replacement Homes that the
Buyer is required to make available to replace Existing Homes that are Social Housing Units in a
Demolition Phase proposed in an Agreed PPDN and which shall be:
(a) the total number of Replacement Homes set out in the Agreed PPDN (including any
Replacement Homes that the Buyer is required to make available as a result of any
request by the Council for Replacement Homes pursuant to clause 13.2.1(c) and/or
the use of any Flex and/or Shortfall);
less
(b) the aggregate number of Replacement Homes set out in the Agreed PPDN that the
Buyer is required to make available pursuant to clause 13.2.1(b).
Phase Transfer means the transfer deed by which each Demolition Phase shall be transferred by the
Council to the Buyer (or any Sub-Buyer) upon each Relevant Phase Completion Date, the form of
which shall be determined pursuant to Schedule 7.
Phase Transfer Land means the land the subject of the Phase Transfer as set out in Schedule 5.
Phasing Programme means:
(a) the plan attached at Schedule 3 setting out the location and indicative boundary of
the proposed Demolition Phases and the proposed sequential programme for
bringing forward the proposed Deniolition Phases; and
(b) the table set out in Schedule 3 that details the likely dates on which the proposed
Demolition Phases will be brought forward,
as varied from time to time in accordance with clause 11.1.
Planning Act means the Town and Country Planning Act 1990.
Planning Agreement means an agreement or undertaking relating to the Development and or any
Phase (whether or not also affecting other property) pursuant to:
(a) section 106 of the Planning Act; or
(b) section 111 of the Local Government Act 1972; or
(c) sections 38, 184 or 278 of the Highways Act 1980; or
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(d) section 98 or 104 of the Water Industry Act 1991; or
(e) section 1 of the Localism Act 2011; or
(f) any other statutory provisions whereby the Earls Court Regeneration Site (or part or
parts thereof) is bound by obligations enforceable by any third party.
Planning Application means an application for planning permission or approval of Reserved Matters
in respect of the Development.
Planning Application (Earls Court) means the application for the Development RBKC of the Earls
Court Site RBKC reference PP/i 1/01937 or a substantially similar development applied for by the
Buyer that is designated by the Buyer in a written notice to the Council as a Planning Application
(Earls Court) for the purposes of this Agreement.
Planning Application (Main Site) means the application for the Development LBHF of the Main Site
reference 2011/0200/OUT or a substantially similar development applied for by the Buyer that is
designated by the Buyer in a written notice to the Council as a Planning Application (Main Site) for the
purposes of this Agreement.
Planning Application (Seagrave) means planning application reference 201 1/02000/FUL.
Planning Application (Seagrave Road Houses) means a planning application for the development
of the land at Seagrave Road Houses consistent with the details provided to the Council for the
purposes of consultation pursuant to clause 8.
Planning Decision means the decision of the Planning Applications Committee of the Council on 12
September 2012 to grant planning permission for the Planning Application (Main Site)
(2011/02001/OUT) subject to a Planning Agreement being entered into.
Planning Permission means a planning permission granted in respect of a substantial and material
element of the proposed Development.
Planning Permission RBKC means a planning permission including approval of Reserved Matters
for the Development RBKC within the Royal Borough of Kensington and Chelsea and also
conservation area consent and any listed building consents which may be required for the
Development RBKC.
Planning Refusal means any of the following:
(a) the refusal of a Planning Application by the local planning authority;
(b) a refusal by the local planning authority to vary or remove any condition pursuant to
an application made by the Buyer under section 73 of the Planning Act or section 19
of the Listed Buildings Act;
(c) a Secretary of State Refusal;
(d) a Deemed Refusal.
PPDN means a notice served in accordance with the provisions of clause 11.4.1 or 11.4.2, which is in
the form set out at Schedule 3 (or in such other form as may be agreed between the Parties) and
which contains the information set out in clause 11.5.3.
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PPDN Criteria means, in respect of a PPDN, that:
(a) the red line shown on the plan attached to the PPDN identifying the perimeter of a
Demolition Phase will not pass through the structure of any Existing Homes or
buildings (e.g. apartment blocks) so as to leave those Existing Homes or buildings
uninhabitable and for the avoidance of doubt the red line will not be drawn such that it
separates a row of terrace houses;
(b) the extent of those parts of the Option Land which will remain vested in the Council
(and which have not yet been drawn down by the Buyer in accordance with the
provisions of this Agreement) after the disposal of the Demolition Phase to the Buyer
are such that, if the remaining parts of the Option Land are not drawn down
subsequently under this Agreement they will be capable of independent occupation,
management and subsequent redevelopment; and
(c) no more than 200 Existing Homes may be included in a PPDN.
PPDN Date means the date identified in clause 11.5.
PPDN Response means the Councils response to the PPDN which the Council shall set out in the
PPDN, by completing the relevant blank fields and columns contained within the PPDN, and which
shall confirm whether the Council:
(a) accepts the Replacement Homes Proposal and the Buyers proposals concerning the
number of Car Parking Spaces and (if any) Outstanding Car Parking Spaces to be
made available for that Phase;
(b) in the event that clause 13.2.1(c) applies, wishes to propose an alternative
Replacement Homes Proposal to that set out in the PPDN in relation to those
Replacement Homes that the Buyer has proposed to make available to replace
Existing Homes that are:
(i) owned by an Owner who, as at the PPDN Date, has not entered into a
Standard Purchase Contract with the Council; or
(B) owned by a Registered Provider where any Assured Tenant in occupation
has not elected, either before or during the Detailed Needs Assessment, to
be rehoused by the Council in the Development; or
(iB) Council Owned Residential Units which are not occupied by a Secure
Tenant;
(c) objects to the Replacement Homes Proposal, in which case the Council shall set out
in the PPDN Response:
(i) the reasons why it objects to the Replacement Homes Proposal and, for the
avoidance of doubt, the Council shall only be entitled to object to the
Replacement Homes Proposal on the basis that the Replacement Homes
Proposal does not comply with the provisions set out in clause 13.2; and
(B) the changes that it believes are required to the Replacement Homes
Proposal in order for the Replacement Homes Proposal to comply with the
provisions set out in clause 13.2;
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(d) objects to the Buyers proposals for the number of Car Parking Spaces and (if any)
Outstanding Car Parking Spaces to be made available for that Phase, in which case
the Council will set out in the PPDN Response:
(i) the reasons why it objects to the number of Car Parking Spaces and (if any)
Outstanding Car Parking Spaces that the Buyer proposes to make available
and for the avoidance of doubt the Council will only be entitled to object to the
Buyers proposals if it does not comply with clause 13.3; and
(B) the number of Car Parking Spaces and, if any, Outstanding Car Parking
Spaces which the Council considers should be made available to comply with
clause 13.3; or
(e) wishes to request any Flex and/or the use of some or all of any Shortfall in
accordance with clause 13.4.
Preferred Replacement Accommodation means: (a) a separate single block of accommodation
comprising Replacement Homes and shared internal communal areas to be demised pursuant to a
Replacement Accommodation Lease; and/or (b) a self contained part or parts of a separate single
block of accommodation comprising Replacement Homes and shared internal communal areas to be
demised pursuant to a Replacement Accommodation Lease.
Prescribed Rate means 4% per annum above the base rate from time to time of Barclays Bank PLC
or (if such base rate shall cease to be published) 4% per annum above such alternative equivalent
base rate for the time being by reference to which clearing banks in the City of London make
commercial loans within the United Kingdom domestic market as the Buyer elects.
Privately Owned Residential Units means all residential dwellings fully owned by private individuals
or entities at the Option Land.
Proceedings means any form of judicial proceedings or legal challenge including:
(a) an application for Judicial Review under Civil Procedure Rule 54 including in each
case any appeals to a higher court following a judgment of a lower court;
(b) an application pursuant to section 288 of the Planning Act arising from the grant of a
Planning Permission or a Planning Refusal by the Secretary of State including in
each case any appeals to a higher court following a judgment of a lower court;
(c) an application to the High Court pursuant to section 23 of the Acquisition of Land Act
1981 including in each case any appeals to a higher court following a judgment of a
lower court; or
(d) an application (within the meaning of paragraphs (a) or (b) above) arising from the~
grant of a Planning Permission or a Planning Refusal following a reconsideration of a
Planning Application by the local planning authority or the Secretary of State or an
Appeal to the Secretary of State following a previous Planning Permission or
Planning Refusal being quashed pursuant to an application within the meaning of (a)
or (b) above and the matter being remitted to the local planning authority or the
Secretary of State (as the case may be) including in each case any appeals to a
higher court following a judgment of a lower court.
Prohibited Transferee means one or more of the following:
42a7ao7a.2\Iocs 39
RGS/90883.00001/g5l000l.1 1
(a) any sovereign fund or entity owned or controlled by or any governmental body of, a
country in respect of which the United Kingdom has withdrawn or suspended
diplomatic relations (for so long as such withdrawal or suspension lasts):
(b) any sovereign fund or entity owned or controlled by or any governmental body of a
country in respect of which the United Kingdom has imposed punitive sanctions;
(c) any sovereign fund or entity owned or controlled by or any governmental body of a
country in respect of which the United Nations has imposed punitive sanctions;
(d) any senior governmental or military officer or political leader of any of the countries
referred to in paragraphs (b) or (c) of this definition or any companies or other
investment or trading vehicles beneficially owned by such individuals or their
immediate family;
(e) any body or organisation which it would be illegal for a British citizen to be a member
of or which is otherwise classed as a banned organisation in the United Kingdom;
(f) any entity engaged openly or covertly in activities directed towards the overthrowing
or influencing by force or violence of Her Majestys Government in the United
Kingdom; or
(g) any organiaation the primary activity of which comprises the manufacture or sale of
tobacco products, gaming, pornography or illicit drugs.
Project Delivery Group means the project delivery group appointed in accordance with and
undertaking the role set out in clause 38.
Project Extension Events means any of the events resulting in the extension of the Halfway
Condition Date in accordance with Schedule 18.
Project Funder means any bank, financial institution or funder which has provided or is to provide
funding or security arrangements to the Buyer for the purposes of undertaking the Development as
notified to the Council pursuant to clause 42.2.1
Purchase Company means the Buyer or a Connected Party or such other person as the Buyer may
nominate.
Purchase Contract Offer Period means a period of 12 months (or such longer or new period as is
agreed between the Council and the Buyer as co-ordinated by the Project Delivery Group from time to
time, in their respective discretions) which period shall commence on the Standard Purchase Contract
Trigger Date.
Purchase Contract Policies means the policies to be prepared by the Council as listed at
paragraph 4.2 of Part I of Schedule 2 as the same may be varied, replaced, updated or introduced
from time to time.
Purchase Contracts means the Standard Purchase Contract, the Advance Existing Purchase
Contract, Early Purchase Contract and (as appropriate in the context) the Secure Tenant Contract.
Qualifying Acquisition means the acquisition of any property interest within the Option Land
acquired by or on behalf of the Buyer.
Qualifying Owner means an owner of a Privately Owned Residential Unit who:
42878078.2\1o08 40
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(a) has been in occupation of that Privately Owned Residential Unit for no less than one
year as at the Standard Purchase Contract Trigger Date;
(b) did not acquire such Privately Owned Residential Unit pursuant to the exercise of a
Right to Buy by the service of a Form RTBI (or such other equivalent form from time
to time) after 30 June 2011; and
(c) is living in that Privately Owned Residential Unit as at the Standard Purchase
Contract Trigger Date or who would have been in occupation for no less than one
year as at the Standard Purchase Contract Trigger Date were it not due to:
(i) that person temporarily living away from home (for example as a result of
service in the armed forces or working abroad (whether or not that home is
tenanted)) as long as that home has remained the owners principal
residence;
(H) that person being the last occupier of the home before leaving it to be taken
into care (including care by that persons family);
(iii) the owner being the administrator or executor of a deceased former owner
who occupied the home (and who would otherwise have been a Qualifying
Owner); or
(iv) the occupier being a spouse, former spouse, civil partner or former civil
partner under an order made pursuant to the Family Law Act 1996.
Refund Termination Event has the meaning given to it in Schedule 25.
Registered Provider means a company or organisation involved in the provision or management of
Affordable Housing.
Rehousing Report means a report in the form attached in Schedule 26 (or such other form as the
Parties may agree) and which shall include such information as is referred to in paragraph 2.3 of
Schedule 6.
Relevant Accommodation means the relevant block or part of a block that shall comprise Preferred
Replacement Accommodation to be demised to the Council pursuant to a Replacement
Accommodation Lease.
Relevant Assessment Date means the relevant Assessment Date to be used for the application of
the NAV Test following the provision of a NAV Report pursuant to paragraph 2.8 of Schedule 1.
Relevant Entity or Relevant Entities means the entities listed in paragraph 2.11 of Schedule 1.
Relevant Land means the relevant part of the Option Land transferred or to be transferred to the
Buyer or Sub-Buyer pursuant to this Agreement and which will (or may) be included in any
Replacement Accommodation Lease.
Relevant NAV Report means any Annual NAV Report, Interim NAV Report or MAC NAV Report (as
the case may be).
42878078.2\IoOa 41
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Relevant Phase means the Demolition Phase and corresponding Build Phase identified (as the case
may be):
(a) by the Buyer pursuant to clause 11 .2;
(b) in a PPDN;
(c) in an Agreed PPDN; and/or
(d) in a GPO Start Notice.
and Relevant Demolition Phase and Relevant Build Phase shall be interpreted accordingly.
Relevant Phase Completion means Phase Completion of the Relevant Phase.
Relevant Phase Completion Date means the Phase Completion Date of the Relevant Phase.
Remaining Estate means, in relation to a Phase Impact Assessment, those parts of the Option Land
that: 3
(a) would remain vested in the Council if the Demolition Phase to which the Phase
Impact Assessment relates was to be transferred to the Buyer pursuant to clause 12;
and
(b) have been transferred to the Buyer pursuant to clause 12 and over which the Council
has taken a Replacement Accommodation Lease.
Remaining Phase Replacement Homes GIA Allowance means theGIA figure which is calculated
by adding the GIA of all of the Replacement Homes determined in accordance with clauses 13.2.1(a)
and 13.2.1(b) for the Relevant Phaae, and then deducting this from the Phase Replacement Homes
GIA Allowance for the Relevant Phase. If this produces a negative figure, the Remaining Phase
Replacement Homes GIA Allowance will be zero.
Remedial Actions means actions required pursuant to paragraph 2.17 of Schedule I due to a failure
to satisfy the NAV Test.
Replacement Accommodation means those premises (whether a block, part or parts of a block or
an individual unit) identified pursuant to the terms of clause 14 to be demised to the Council under a
Replacement Accommodation Lease.
Replacement Accommodation Completion Date means the date on which a Replacement
Accommodation Lease is actually completed.
Replacement Accommodation Lease means the lease or leases to be granted to the Council in
such farm(s) as shall be agreed for each Relevant Phase pursuant to the provisions of clause 16.
Replacement Home means a home that the Buyer makes available to the Council in accordance with
the terms of this Agreement and the Section 106 Agreement to replace an Existing Home located on
a current or future Demolition Phase.
Replacement Home Base Specification means the following minimum design and construction
standards:
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(a) Gl..A space standards (current at the date of this Agreement) and which are set out in
Schedule 24;
(b) HQI score of upper mid quartile (being at least 11 out of2O or equivalent);
(c) at least Silver Standard Building for Life;
(d) 100% Lifetime Homes;
(e) Code for Sustainable Homes 4; and
(f) Secured by Design certification,
or (other than (a)) such varied, replaced or substituted standards as determined in
accordance with clause 13.6.
Replacement Home Building Guarantee means a guarantee/warranty certificate pursuant to one of
the following schemes:
(a) the National House-Building Council Builcimark scheme or such other replacement
NHBC scheme from time to time; or
(b) the Zurich Building Guarantee Standard 10 scheme or such other replacement
Zurich scheme from time to time; or
(c) any other reputable build warranty providers scheme in the UK which is generally
acceptable to the Council of Mortgage Lenders and/or the Qualifying Owners
mortgagee.
Replacement Home Long Stop Date means the date notified by the Buyer to the Council and by the
Council to a Qualifying Owner in a Home Election Notice as the long stop date by which the
Independent Certifiers Habitable Certificate is to be achieved as more particularly provided in
Schedule 2.
Replacement Home Package means the specific requirements in relation to:
(a) the construction of a kitchen/diner or a lounge/diner unless the Replacement Home
has only one bedroom and it is not possible to build a separate lounge and
kitchen/diner or a separate kitchen and lounge/diner within the GIA for a one
bedroom Replacement Home (such GIA being as set out in the table entitled Design
Standards in Schedule 24) whilst still complying with the Replacement Home Base
Specification, any Planning Permission and/or any building regulations or other
- statutory regulations relating to the construction of the Replacement Home;
(b) the range of colours for the purposes of decoration; and
(c) the preference(s) for one or more of the following options which will all be made
available within the Replacement Home (typically from 2 to 3 alternatives within a
standard range):
(i) blinds or curtains;
() carpets or other floor covering (including underlay or soundproofing);
42878075.2Mo08 43
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(Hi) oven and hob or combined unit;
(iv) fridge and freezer or combined unit;
(v) dishwasher;
(vi) washing machine and tumble dryer or combined unit.
Replacement Home Underlease means the lease to be granted in respect of a Replacement Home
at the Development from the Council to the Owner as required under the Standard Purchase
Contract.
Replacementi-lomes Proposal has the meaning given to it in clause 11.4.3(f).
Replacement Homes Redevelopment Area means any part of the Earls Court Regeneration Site
within the administrative area of the Council or such other land as may have been agreed by the
Council (in its absolute discretion) pursuant to clauses 11.2.2, 11.2.8 or 13.1.2(b).
Request means a request for information made pursuant to the Rules applicable to a public authority
as defined therein.
Reserved Matters means any matters to which the approval of the relevant local planning authority
or any third party is required pursuant to a condition of a Planning Permission or a term of any related
Planning Agreement.
Response Period has the meaning given to it in clause 11.6.2.
Right to Buy means the right of a Secure Tenant to buy their current home pursuant to Part V of the
Housing Act 1985.
RP Owned Residential Units means all residential dwellings at the Option Land owned fully by
Registered Provider(s).
RPI means the Retail Prices Index as prepared by the Office for National Statistics from time to time
or where no such index is prepared (or where the basis of calculation is changed or re-based) the
most suitable equivalent index prepared by the Office for National Statistics or its successor body
from time to time.
SAP means the Secured Asset Pool created and maintained pursuant to the provisions of
Schedule 1 as part of the Collateral Security as referred to in paragraph 3 of Schedule 1.
Satisfactory Closure Order means a Closure Order in respect of which the Buyer has notified the
Council in writing pursuant to paragraph 5.14.1 of Part 1 of Schedule 6 is satisfactory.
Satisfactory CPO means a confirmed Approved CPO which the Buyer has confirmed is satisfactory
pursuant to paragraph 5.13.3(a) of Part 1 of Schedule 6.
Satisfactory Main Site Planning Permission means a Planning Permission which:
(a) must be for a development applied for by the Buyer or a Connected Party; and
(b) is in respect of the development comprised in the Planning Application (Main Site)
made by or on behalf of the Buyer which permits the development or a substantially
42878078.2\IoOS 44
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similar development and is designated by the Buyer in a written notice to the Council
as a Main Site Application for the purposes of this Agreement; and
(c) is not subject to Onerous Planning Conditions; and
(d) in respect of which the Challenge Period has expired without Proceedings having
been commenced,
Provided that:
(e) if a condition of Planning Permission is appealed by the Buyer within 3 months of its
issue and the appeal is unsuccessful then it shall be deemed not to be a Satisfactory
Main Site Planning Permission; and
(f) if the Planning Permission is Implemented then it shall be deemed to be a
Satisfactory Main Site Planning Permission, and
Provided that in any event there must at the date of Implementation have been issued by the
Royal Borough of Kensington and Chelsea and be extant a Satisfactory Planning Permission
RBKC.
Satisfactory Planning Permission RBKC means a Planning Permission RBKC free from any
Onerous Planning Conditions in respect of which the Challenge Period has expired without
Proceedings having been commenced.
Satisfactory Scheme Overage Planning Permission means a detailed Planning Permission which:
(a) must be for a development applied for by the Buyer or a Connected Party or a
successor in title to the Buyer (directly or indirectly) or a party which has contracted to
acquire or has otherwise agreed to acquire (from the Buyer or its successor in title of
whole or part) an interest in the whole or part of the Scheme Overage Area; and
(b) is in respect of any part of the Scheme Overage Area and is fully implementable
whether by reason of the satisfaction of material outstanding Reserved Matters or
otherwise); and
(c) is not subject to Onerous Planning Conditions; and
(d) in respect of which the period of 180 days has expired without Proceedings having
been commenced or if Proceedings are commenced, such Proceedings have been
finally determined leaving such detailed Planning Permission in force which meets all
the other requirements of this definition,
Provided that:
(e) if a condition of Planning Permission is appealed by the Buyer or other party being
the applicant within 3 months of its issue and the appeal is unsuccessful then it shall
be deemed not to be a Satisfactory Scheme Overage Planning Permission; and
(f) if the Planning Permission is Implemented then it shall be deemed to be a
Satisfactory Scheme Overage Planning Permission.
Satisfactory Scheme Planning Permission means the existence of both a Satisfactory Seagrave
Planning Permission and a Satisfactory Main Site Planning Permission.
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RGS/90883.00001/9510001 .11
Satisfactory Seagrave Planning Permission means the Planning Permission granted pursuant to
the Planning Application (Seagrave).
Satisfactory SOS Consent means an SOS Consent which has been approved or deemed to have
been approved by the Buyer in accordance with the provisions of clause 6.
Scheme Car Parking Space Allowance means the total number of Car Parking Spaces to be
provided in respect of the Replacement Homes which will be calculated by multiplying the Scheme
Replacement Homes Allowance by the relevant Car Parking Ratio and rounding down the answer to
the nearest whole number.
For example, if the Planning Permission (or any related Planning Agreement) permits 0.6 car
parking spaces per residential unit and the Scheme Replacement Homes Allowance is 766
then the Scheme Car Parking Space Allowance will be 459.
It is recognised, however, that the Planning Permissions (and related Planning Agreements) might
provide for (or require) different Car Parking Ratios for different Build Phases, in which case the
Scheme Car Parking Space Allowance will be calculated by multiplying the number of Replacement
Homes in each Build Phase by the Car Parking Ratio applicable to that Build Phase and adding
together the total.
For example, if the Scheme Replacement Homes Allowance is 766, one Planning Permission
in respect of a Build Phase permits 0.4 car parking spaces per residential unit on that Build
Phase where 100 Replacement Homes will be located, and the Planning Permissions for all
the other Build Phase (on which the remaining 666 Replacement Homes will be located) each
permits 0.6 car parking spaces per residential unit then the Scheme Car Parking Space
Allowance will be 439 (0.4x100 + 0.6 x 666).
Scheme Discontinuance Notice means a notice served by the Buyer on the Council notifying the
Council that the Buyer will not serve the Trigger Notice or if the Trigger Notice has been served that
the Buyer will not serve any further CPO Start Notices (and such notification will be irrevocable).
Scheme House Equivalent Replacement Home Allowance means 66 homes that are House
Equivalent Replacement Homes (subject to adjustment in accordance with clause 8).
Scheme Overage means means the overage calculated in accordance with Part 1 of Schedule 10.
Scheme Overage Area means the land shown edged red on the plan attached with drawing number
55100/76 as labelled Scheme Overage Area and having an agreed area of 67.85 acres which
includes the Main Site and the Earls Court Site RBKC and the TfL Land (but which does not include
the Seagrsve Road Site, the Seagrave Road Houses, the Empress State Building (and the footprint of
the land upon which it sits), the Northern Access Road, the land owned by TfL under the A4, the
Mund Street pavillion or Farm Lane).
Scheme Overage End Date means the expiry of 5 years from the earliest of:
(a) 31 December 2035; and
(b) (in respect to a Phase) the Buyer already owning (or the Phase Completion Date
having occurred in respect of) such Phase (being part of the Scheme Overage Area)
which is developable in accordance with the Satisfactory Scheme Planning
Permission; and
(c) Termination or Expiry of this Agreement.
46
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Scheme Overage Trigger Date means in respect of any part of the Scheme Overage Area the date
prior to the Scheme Overage End Date on which all of the following have occurred:
(a) Satisfactory Scheme Overage Planning Permission has been obtained;
(b) in respect of the relevant land (including the TfL Land or other land to be acquired by
the Buyer within the Scheme Overage Area) the Buyer or a Connected Party has
acquired the freehold or a long leasehold interest therein of substantially equivalent
value to a freehold and which does not contain any prohibition on carrying out the
development permitted by the Satisfactory Scheme Overage Planning Permission
and is otherwise upon terms acceptable to the Buyer (acting reasonably) or a
Connected Party (acting reasonably) for the purpose of developing and owning the
relevant land;
(c) vacant possession has been obtained and the relevant land (whether freehold or
leasehold) is free of rights or restrictions which must be acquired or removed for the
development of such land (including for the avoidance of doubt and without limitation
the raising of finance) in accordance with the Satisfactory Scheme Overage Planning
Permission on reasonably satisfactory and financially viable terms; and
(d) all such access, services and similar rights and conditions exist which are necessary
for the full implementation, development and use of such land in accordance with the
Satisfactory Scheme Overage Planning Permission on reasonably satisfactory and
financially viable terms.
Scheme Overage Use means any use falling within use classes Al to A5, 81 or Cl C3 of the Town
and Country Planning (Use Classes) Order 1987 and Scheme Overage Uses shall be construed
accordingly.
Scheme Replacement Homes Allowance means 760 Replacement Homes or, if the Seagrave
Road Houses are included in the Option Land, 766 Replacement Homes subject in each case to the
Scheme Replacement Homes GIA Allowance being sufficient to accommodate the relevant number of
Replacement Homes (subject to adjustment pursuant to clause 8).
Scheme Replacement Homes GIA Allowance means 67,910 sq metres (730,983 square feet),
being the total GIA of the Replacement Homes that the Buyer may provide to the Council pursuant to
the terms of this Agreement or, if the Seagrave Road Houses are included, 68,446 square metres
(subject to adjustment pursuant to clause 8).
Scheme Replacement House Allowance means 75 Houses which are Replacement Homes or, if
the Seagrave Road Houses are included, 77 Houses which are Replacement Homes (subject to
adjustment in accordance with clause 8).
Seagrave Road Adverse Rights Deed means the deed set out in Part I of Schedule 13.
Seagrave Road Houses means the land (and buildings) comprising Nos 8A, 8B, 10 and 12 Seagrave
Road, 1A Rickett Street and 1 B Rickett Street, together shown edged red on the plan attached with
drawing number 55100/77 as labelled Seagrave Road (Rickett Street) and registered at the Land
Registry with title numbers 339779, 339780, 339781 and 303801.
Seagrave Road LI means Seagrave Road Limited Partnership (acting by its General Partner,
Seagrave Road GP Limited (company registration number 7696132) and Seagrave Road Nominee
Limited (company registration number 7696293)).
42878078.2\1o08 47
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Seagrave Road Site means the site currently owned by Seagrave Road LP with title numbers
NGL523049 and BGL43541 as shown edged red on the plans attached with drawing number
551 00/78 as labelled Roxby Place Site and drawing number 55100/79 as labelled Seagrave Road
Site.
Second Adverse Rights Deed means the deed in the form set out in Part 2 of Schedule 13.
Secretary of State means (as appropriate):
(a) such Secretary of State or any other minister or authority for the time being entitled to
grant consent to the disposal or appropriation of land owned by a local authority
(including without limitation, the Secretary of State able to grant an SOS Consent); or
(b) the Secretary of State or any other minister or authority for the time being entitled to
exercise the powers given under sections 77, 78 and 79 of the Planning Act; or
(c) such other minister or authority for the time being having or entitled to exercise the
powers now conferred on that Secretary of State by the Town and Country Planning
Act 1990 and including (where appropriate) an inspector appointed to act on his
behalf.
Secretary of State Refusal means a refusal by or on behalf of the Secretary of State to grant
planning permission following an Appeal.
Section 106 Agreement means the Planning Agreement required to be entered into by the Planning
Decision and a Planning Agreement required to be entered into in order to obtain the grant of a
subsequent Planning Permission.
Section 34A Application means an application made pursuant to section 34A of the Housing Act
1985.
Secured Amount means the amount charged by a Secured Asset as specified by the Buyer from
time to time as being the Secured Amount with regard thereto in accordance with paragraph 3.2 of
Schedule 1 subject to this provisions of the said Schedule.
Secured Asset means an asset within the SAP and charged with a proportion of the Minimum
Security Cover as part of the Collateral Security pursuant to paragraph 3 of Schedule 1.
Secure Satisfactory SOS Consent means a Satisfactory SOS Consent in respect to which either:
(a) 4 months shall have expired since the Satisfactory SOS Consent was issued by the
Secretary of State without any Challenge (including in this context an application for
leave to make such Challenge) having been made; or
(b) a Challenge is made in respect of it and such Challenge has been Finally Disposed of
leaving in place a Satisfactory SOS Consent.
Secure Tenancy means a secure tenancy within the meaning of Part IV of the Housing Act 1985.
Secure Tenant means a tenant under a Secure Tenancy resident at the Option Land as at the date of
this Agreement.
Secure Tenant Contract means the form of contract to be offered to Secure Tenants at the Option
Land pursuant to Schedule 2.
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Security Monitoring Period means the period from exchange of this Agreement until the Buyer shall
cease to have any further liability in relation to any Outstanding Liabilities as such cessation may be
evidenced by the issue of a Liability Release Certificate provided that no such certificate shall be
required to prove such cessation but if one shall have been issued it shall be conclusive proof of such
cessation.
Selected Agent means a person appointed by the Council with the Buyers consent, which consent
shall not be unreasonably withheld, who shall undertake the tasks referred to in Schedule 6.
Service Charge Strategy means the strategy set out in Schedule 20 which forms the basis upon
which the service charge arrangements for the estate (as defined in the Replacement
Accommodation Lease) and buildings therein will be incorporated into the Replacement
Accommodation Leases and the Replacement Home Underleases within the estate (as defined
aforesaid).
Service Media means apparatus and conducting media for the passage of foul and surface water
drainage electricity gas water and telecommunications and any other services and supplies of
whatsoever nature.
Shortfall means the aggregate of any Phase Replacement Homes GIA Allowance that was not used
in any Live Agreed PPDNs and which will be carried forward to be used by the Council, if it so wishes,
in future Phases where the choice as to when to use such Shortfall is (subject to clause 13.4) at the
Councils discretion.
Short Term Occupier means any tenant or other occupier that occupies a property on a basis which
is not or will not lead to being a Secure Tenancy or such other tenancy whereby the Council cannot
obtain vacant possession at the expiry or determination of the term and/or as and when required
under this Agreement.
Snagging Items means minor defects or outstanding works that can reasonably be dealt with after
the issue of an Independent Certifiers Habitable Certificate in respect of the relevant Replacement
Home and which would be required to be remedied or undertaken, as the case may be, for a
Replacement Home to be Habitable were it not a Snagging Item.
Social Housing Units means Council Owned Residential Units and RP Owned Residential Units in
the Option Land as at the date of this Agreement and which is 589 units, or if the Seagrave Road
Houses are included is 595 units (subject to adjustment in accordance with clause 8).
Social Housing Unit GIA Shortfall means:
(a) the aggregate of the Phase Social Housing Unit GIA Allowance for all Certified
Phases (which for each Phase will be specified in the Live Agreed PPDN);
less
(b) the aggregate of the Phase Social Housing Unit GIA Spend for all Certified Phases
(which for each Phase will be specified in the Live Agreed PPDN),
where the GIA of each such Replacement Home shall be calculated in accordance with
clause 13.2. Where the above calculation produces zero or a negative number there shall be
no Social Housing Unit GIA Shortfall.
Social Housing Unit Number Shortfall means:
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(a) the aggregate of the Phase Social Housing Unit Allowance for aU Certfied Phases
(which for each Phase will be specified in the Live Agreed PPDN);
less
(b) the aggregate of the Phase Social Housing Unit Number Spend for all Certified
Phases (which for each Phase will be specified in the Live Agreed PPDN),
and where this produces zero or a negative number there shall be no Social Housing Unit
Number Shortfall.
SOS Consent means: -
(a) a consent for the disposal of the Option Land pursuant to (without limitation) sections
32 and 43 of the Housing Act 1985 applied for in accordance with the provisions of
this Agreement; and
(b) a consent for an Appropriation of part or parts of the Option Land for planning
purposes pursuant to (without limitation) section 19 of the Housing Act 1985 applied
for in accordance with the provisions of this Agreement.
SOS Consent Condition means the issue of a Satisfactory SOS Consent in accordance with the
provisions of clause 6.
SOS Consent Criteria means consent from the Secretary of State pursuant to the application made
in accordance with clause 6 or clause 8.8 which permits an Appropriation and/or disposal of the
Option Land without the Seagrave Road Houses or of the Seagrave Road Houses respectively on the
terms of this Agreement (excluding the requirement to obtain consent) and which shall also (without
limitation):
(a) state that section 133 of the Housing Act 1988 shall not apply; and
(b) state that it not only provides consent pursuant to section 32 of the Housing Act 1985,
but also, to the extent necessary, pursuant to section 43 of the Housing Act 1985;
and
(c) state that consent to Appropriate the Option Land without the Seagrave Road Houses
or of the Seagrave Road Houses respectively for planning purposes is provided
pursuant to section 19 of the Housing Act 1985; and
(d) give consent to all disposals by the Council of the Option Land without the Seagrave
Road Houses or of the Seagrave Road Houses respectively which shall or may be
made by the Council under this Agreement (including the creation of the Option in
relation to the relevant land, entry into the Purchase Contracts and entry into any
adverse rights deed); and
(e) impose no conditions, limitations or caveats whatsoever other than those which are
acceptable to the Buyer in its absolute discretion or which are entirely consistent with
the provisions of this Agreement; and
(f) include no requirement to permit the consent or any matter authorised by it to be
reviewed or reconsidered by the Secretary of State (or any other person); and
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(g) impose no time limit to such consent or any element of it or any activity pursuant
thereto; and
(h) take effect on the date of the consent and not at some future date; and
(i) not include a requirement for any further consents to be obtained.
Standard Conditions means Part 1 of the Standard Commercial Property Conditions (Second
Edition) as amended or varied as stated either in clause 1 or in any other part of this Agreement and
Standard Condition shall be construed accordingly.
Standard Property Mortgage means a mortgage in the form of the draft mortgage in PartS of
Schedule 19 being the form of mortgage to be used:
(a) in relation to any property that is to be included in the SAP pursuant to the provisions of
paragraph 3 of Schedule 1; or
(b) where the Buyer is required to charge an Existing Home that has been transferred to the
Buyer (or its nominee) pursuant to the provisions of clause 9.18.
Standard Purchase Contract means the form of contract to be offered to Qualifying Owners of
Privately Owned Residential Units at the Option Land pursuant to the provisions of clause 19.
Standard Purchase Contract Contribution Cap means the sum of 1 5,000,000 less the aggregate
Allowable Capital Expenditure incurred by the Buyer with regard to Early Purchase Contracts.
Standard Purchase Contract Trigger Date means the date when the following have been secured:
(a) a Satisfactory Scheme Planning Permission and any required Section 106
Agreement; and
(b) a Secure Satisfactory SOS Consent.
Statement of Case means the Councils response to any objections to any CPO and/or Closure
Order issued pursuant to the relevant inquiry procedure rules.
Statement of Reasons means the statement of reasons accompanying the submission of a CPO to
the Secretary of State.
Sub-Buyer means an entity nominated by the Buyer who is not a Prohibited Transferee.
Sub-Buyer Criterion means that the Buyer can demonstrate that the Sub-Buyer has or can procure
and credibly manage and co-ordinate the technical expertise and experience to carry out a
development on the Relevant Land of the sameor similar scale and type to that permitted to be
carried out on the Relevant Land by the Planning Permission (or other similar planning permission
that may be in force at the relevant time) and (without limiting the foregoing) this shall be deemed to
be satisfied in any case where the Buyer or a Connected Party retains responsibility (other than solely
by reason of this Agreement) pursuant to a development agreement (or similar agreement ) to carry
out or manage or procure the development on the Relevant Land).
Terminate and Termination shall be construed in accordance with clause 41.
Termination Replacement Home Lease means a lease for a term of:
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(a) in the case of land within the relevant Demolition Phase 995 years; and
(b) in the case of land within the relevant Build Phase 995 years (les.s 3 days),
and in either case on such terms as the Buyer and the Council may agree could reasonably be
expected to be found in a lease of the relevant premises for residential purposes if it were offered for
sale in the open market at a market premium by a private landlord as private residential
accommodation and in default of agreement the terms of such lease shall be determined by an Expert
pursuant to clause 40.
TfL means Transport for London.
TfL Land means the land shown numbered 6 to 11 (inclusive) on the plan attached and marked
Earls Court Masterplan.
Third Party Interests mean the interests and rights of third parties (including the land, interests in
land and New Rights) required for the carrying out and use of the Development (including
extinguishment and overriding) and Third Party Interest shall be construed accordingly.
Time Critical Item means one of the Councils obligations as specified in Appendix Ito Schedule Gin
the column titled Time Critical Items.
Time Critical Item Completion Period means the period in which a Time Critical Item is to be
performed by the Council as specified in Appendix I to Schedule 6 in the column titled Time Critical
Item Completion Period as extended or adjusted in accordance with this Agreement.
Total CPO and Closure Orders Compensation and Costs Sum means the sum of 55,000,000.
Total Development Costs means all reasonable costs that have been and/or would reasonably be
anticipated to be properly incurred in connection with the Development in order to implement the
Satisfactory Seagrave Planning Permission or the Satisfactory Scheme Planning Permission or the
Satisfactory Main Site Planning Permission as applicable including without limitation professional
fees, taxes, land acquisition and disposal costs, planning related costs and benefits, community
infrastructure levy, and costs of works shall be included provided that any fees or costs payable to a
Connected Party shall be required to be reasonable and properly and reasonably incurred and
Provided Further that the Buyers internal costs (such as management time) shall not be included.
Total NAV has the meaning given to it in the definitions of Annual NAV Report, Interim NAV
Report and MAC NAV Report as the context may require.
Total Social Housing Unit Number Allowance means the total number of Social Housing Units this
being 589 units or, if the Seagrave Road Houses are included, 595 units (subject to adjustment
pursuant to clause 8).
Trigger Condition means the service of the Trigger Notice on or before the Expiry of this Agreement.
Trigger Date means the date on which the Trigger Notice has been served.
Trigger Notice means a written notice served by or on behalf of the Buyer to the Council exercising
the Option.
Trigger Notice Long Stop Date means the earlier of:
(a) 31 December2017; and
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(b) the date which isO months from the date the Phase IA Seagrave Road Affordable
Housing shall have become Habitable as confirmed under clause 4.5.
Unsatisfactory Closure Order means a Closure Order which is not a Satisfactory Closure Order.
Unsatisfactory CPO means a CPO which is not a Satisfactory CPO.
Vacant Possession Condition means that the Council is able to provide immediate actual,
substantial and empty possession of the relevant Demolition Phase and/or CPO Land free from any
adverse claim.
Valid Section 34A Application means a Section 34A Application:
(a) that complies with all mandatory requirements of the Housing Act 1985 and the
regulations made by the appropriate person under the said section in relation to such
notices and proposals; and
(b) in respect of which the Council has no grounds on which it is able lawfully to resist or
reject it including the following reasons:
(i) by virtue of the rights of the Buyer and/or the obligations of the Council under
this Agreement; and/or
(ii) by virtue of the Development; and/or
(Ni) the ability of the Council to use CPO powers in relation to the Development;
and/or
(iv) any other grounds specified in the regulations made by the appropriate
person under section 34A of the Housing Act 1985 whereby such notice,
proposal or application may be rejected by the Council.
VAT means Value Added Tax chargeable under the Value Added Tax Act 1994 or any equivalent tax
or duty which may be imposed in substitution therefor or in addition thereto at the rate applicable from
time to time.
Voluntary Advance Purchase Contract means a contract entered into by the Buyer in accordance
with the provisions of clause 21.
VP Abandonment Event means that the VP Abandonment Test (which is set out in paragraph 7.3.3
of Part 1 of Schedule 6 has been satisfied.
VP Date means the date identified as the VP Date in each VP Requirement Notice being the date by
which the Council is to satisfy the Vacant Possession Condition in relation to the relevant Demolition
Phase and/or CPO Land.
VP Requirement Notice means a notice served after confirmation of the CPO requiring the
satisfaction of the Vacant Possession Condition in relation to the relevant Demolition Phase and/or
CPO Land on the VP Date.
VP Target Date means the target date identified in the CPO Start Notice as being the anticipated
date by which the Council shall satisfy the Vacant Possession Condition in relation to the relevant
Demolition Phase and/or CPO Land.
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Working Day means any day other than Saturday, Sunday or a public holiday in England and Wales.
1 .2 In this Agreement:
1.2.1 where the context so admits words importing the singular number include the plural number
and vice versa words importing one gender include all genders and references to a person
are deemed to include any individual, firm, unincorporated association or body corporate;
1.2.2 references to clauses or Schedules unless otherwise specified mean the clauses of or
the Schedules to this Agreement;
1.2.3 reference to paragraphs in any Schedule unless otherwise specified means the paragraphs
of that Schedule;
1.2.4 the recitals and headings to clauses, paragraphs and Schedules are disregarded in
interpreting this Agreement;
1 .2.5 this Agreement is deemed to incorporate Pail I of the Standard Conditions with such
amendments (including the use of capital letters) as are necessary to make the Standard
Conditions referable to this Agreement. If there is any conflict between the Standard
Conditions and the express provisions of this Agreement then terms of the Agreement prevail;
1 .2.6 as regards approvals and consents:
(a) any references to the consent or approval of any Party to this Agreement not to be
unreasonably withheld shall also include an obligation not to unreasonably delay such
consent or approval; and
(b) any consent or approval of either Party required under this Agreement save in
circumstances in which it is unreasonably withheld or delayed in breach of this
Agreement shall be required to be obtained before the actual event to which it applies
is carried out or done and shall be effective only when the consent or approval is
given in writing or is deemed to have been given;
1 .2.7 words denoting an obligation on a Party to do any act, matter or thing include an obligation to
procure that it be done and words placing a Party under a restriction include an obligation not
to permit infringement of the restriction;
1 .2.8 any reference to a month is a reference to a calendar month;
1.2.9 reference to a Party means a party to this Agreement and Parties shall be construed
accordingly;
1.2.10 any reference to satisfied or satisfaction shall include circumstances where such arises
by waiver of the condition in question by the service of written notice;
1.2.11 the word or words include, including or in particular shall not have effect so as to limit
in any way the words to which such word or words relate;
1 .2.12 where 2 or more people form a Party the obligations they undertake may be enforced against
them all jointly or against each individually;
1.2.13 in this Agreement references to any statute or statutory provision include references to:
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(a) all Acts of Parliament and all other legislation having legal effect in the United
Kingdom; and
(b) any subsequent statutes directly or indirectly amending consolidating extending
replacing or re-enacting that statute and also include any orders regulations
instruments or other subordinate legislation made under that statute;
1.2.14 indemnify1 means to indemnify against all actions claims demands and proceedings taken
or made against the Council and all costs damages expenses liabilities and losses incurred
by the Council;
1.2.15 the obligations of the Buyer in this Agreement will not comprise covenants that touch and
concern the land within the meaning of the Landlord and Tenant (Covenants) Act 1995;
1.2.16 unless otherwise stated where reference is made to a 6 week period for Challenge this should
be deemed to be replaced by such other statutory period for Challenge as may be specified in
legislation from time to time;
1.2.17 where a time period specified in this Agreement expires on a day which is not a Working Day,
such period shall be extended to and expire at the end of the first Working Day which follows
such specified period;
1.2.18 in the context that the Buyer intends to incorporate Gibbs Green School as part of the
Development the expression Option Land where used in the following provisions of this
Agreement (but only these provisions) shall be deemed to include Gibbs Green School where
appropriate:
(a) the defined terms New Rights, Remaining Estates, Scheme Replacement Homes
Allowance and Secure Tenant Contract;
(b) clauses 32 and 48.3
(c) Schedules.
2 Sale of Gibbs Green School and Farm Lane
2.1 The Council shall sell and the Buyer shall buy Gibbs Green School pursuant to and in
accordance with the terms of Schedule 4.
2.2 On the date of this Agreement the Council is to sell, and the Buyer is to buy, Farm Lane.
2.3 The interest in Farm Lane to be sold is freehold.
2.4 The price for Farm Lane is 5,700,000, which sum has been paid to the Council on the date
of this Agreement and receipt of which the Council confirms.
2.5 Farm Lane is sold with vacant possession.
2.6 Title to Farm Lane as at 29 February 2012 has been deduced by the Council to the Buyer and
the Buyer is not entitled to raise any objection to or requisition on the title to the extent that it
has been deduced.
2.7 The Council sells Farm Lane with full title guarantee.
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2.8 The transfer of Farm Lane is to be in the form of the Farm Lane Transfer.
2.9 The sale and purchase of Farm Lane pursuant to this clause 2 incorporates the Standard
Conditions, which shall be varied as follows:
(a) 1.3, 1.4,1.5,2,3.2.2,4,5.6.2,6.4.2,6.3,6.5,6.6.4,6.6.57.1.318.1,8.2, 8.3.6,8.3.7,
8.3.8, 8.4, 9.1,10 and 11 shall not apply; and
(b) Part 2 of the Standard conditions shall not apply.
2.10 In Standard Condition 1.1.1(l) the definition of pubhc requirement shall be deleted and
replaced by the following:
public requirement means any notice, order, demand, request, requirement or proposal
having specific reference to the property which is given or made (whether before, on or after
the date of the contract and whether or not subject to any confirmation) by a body acting on
statutory authority or any competent authority and includes:
(a) all matters registered or registrable as local land charges (whether or not so
registered);
(b) all actual or proposed charges, orders, directions, conditions, proposals, demands,
restrictions agreements, notices or other matters whatsoever (whether registered or
not before todays date) affecting or relating to the property or any part thereof or any
building or other structure thereon or any part thereof arising under the Planning
Acts;
(c) in Standard Condition 3.1.2(c) the words and could not reasonably shall be deleted;
and
(d) the following shall be added to the end of Standard Condition 3.1.2:
(f) all outgoings, consents, restrictions, easements and liabilities affecting the
property; and
(g) any interests which override under the Land Registration Act 2002.;
2.11 The overage provisions set out in Part 2 of Schedule 10 apply to Farm Lane and Gibbs Green
School.
3 Not Used
4 Scheme conditionality and Trigger Notice
4.1 The option in relation to the Option Land (and any agreementfor the disposal of the Option
Land) is conditional on the satisfaction of the SOS Consent Condition.
4.2 The option in relation to the Seagrave Road Houses (and any agreement for the disposal of
the Seagrave Road Houses) is conditional on the satisfaction of the SOS Consent Condition
in relation to the Seagrave Road Houses.
4.3 Following satisfaction of the SOS Consent Condition in relation to the Option Land the Buyer
shall be entitled to serve the Trigger Notice on the Council at any time prior to the Termination
of this Agreement.
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4.4 For the avoidance of doubt references in clauses 4.1 and 4.3 to the Option Land mean the
Option Land excluding the Seagrave Road Houses.
4.5 In connection with the Phase IA Seagrave Road Affordable Housing:
(a) the Buyer shall notify the Council that the Phase IA Seagrave Road Affordable
Housing shall have become Habitable (and for this purpose the definition of
Habitable in this Agreement shall apply as if references to the Replacement Home
were references to the Phase 1A Seagrave Road Affordable Housing) within 20
Working Days of such being the case; and
(b) any dispute as to whether the Phase IA Seagrave Road Affordable Housing shall
have become Habitable and/or when it shall have become Habitable shall be
determined by an Expert in accordance with clause 40.
5 Seagrave Planning Permission
The Buyer confirms that on the date of this Agreement it regards the Planning Permission
dated 30 March 2012 issued pursuant to the Planning Application (Seagrave) as a
Satisfactory Seagrave Planning Permission and accepts that it does not regard that
permission as containing Onerous Planning Conditions.
6 sos Consent condition
6.1 The Council shall:
6.1.1 apply for SOS Consent in such form and with such supporting information as may be required
to maximise the prospects of securing an SOS Consent that satisfies the SOS Consent
Criteria within 2 months of the date of this Agreement;
6.1.2 diligently pursue and use reasonable endeavoura to obtain a SOS Consent that satisfies the
SOS Consent Criteria as soon as reasonably practicable;
6.1.3 keep the Buyer regularly informed of all progress by the Council in seeking to satisfy the SOS
Consent Condition and supply the Buyer copies of each application and all instructions to any
counsel and copies of all documents referred to therein together with the opinion given by any
counsel in connection with each and every application and the satisfaction of the SOS
Consent Condition;
6.1.4 have due regard to any reasonable representations made by the Buyer in connection with
each and every application and the SOS Consent Condition and provide a copy of the final
form of the application (and any supporting documentation) to the Buyer;
6.1.5 as soon as reasonably practicable following receipt of consent from the Secretary of State
pursuant to an application made under this clause 6, supply a copy of the relevant consent to
the Buyer.
6.2 The Buyer shall provide all reasonable assistance to the Council in preparing an application
for, dealing with requisitions or enquiries in relation to and otherwise in obtaining SOS
Consent.
6.3 A SOS Consent shall:
6.3.1 be a Satisfactory SOS Consent (subject to clause 6.5) if:
42a78075.2\IoOs 57
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(a) the Buyer serves notice on the Council within 3 calendar months of the date it
receives the copy consent under clause 6.1.5 confirming that it considers the SOS
Consent to be a Satisfactory SOS Consent; and/or
(b) the SOS Consent meets the SOS Consent Criteria;
6.3.2 not be a Satisfactory SOS Consent where:
(a) either: (i) the Buyer serves notice on the Council within 3 calendar months of the date
the Buyer receives the copy consent under clause 6.1.5 confirming that the Buyer
does not consider the SOS Consent to be a Satisfactory SOS Consent; or (ii) the
Buyer does not serve a notice within such period to confirm whether or not it
considers the SOS Consent to be a Satisfactory SOS Consent; and
(b) the SOS Consent does not meet the SOS Consent Criteria.
6.4 If SOS Consent does not meet the SOS Consent Criteria and notwithstanding this the Buyer
serves notice under clause 6.3.1 confirming that it considers the SOS Consent to be a
Satisfactory SOS Consent such consent will not be treated as a Satisfactory SOS Consent if:
(a) the Council (acting reasonably and on grounds that the terms of such consent impose
an unreasonable financial burden on the Council whereby the amount of
irrecoverable expenditure likely to be incurred by the Council in complying with its
obligations under this Agreement would be significantly beyond that reasonably
foreseeable by the Council at the date of this Agreement were such terms not
imposed (Additional Expenditure)) serves a counter notice on the Buyer within 1
month of the notice served by the Buyer under clause 6.3.1(a) (a Councils Counter
Notice) stating that it does not accept that the SOS Consent is a Satisfactory SOS
Consent on such grounds; and
(b) such Councils Counter Notice is deemed to take effect under the provision of clause
6.5.
6.5 Where the Council shall serve a Councils Counter Notice within the period permitted under
clause 6.4 the following provisions of this clause 6.5 shall apply:
6.5.1 The Parties shall endeavour to agree whether the Council shall have acted reasonably and
whether the relevant grounds exist and in default of agreement the matter may be referred by
the Buyer to an Expert for determination under clause 40.4.
6.5.2 If the Parties agree or the Expert determines that the Council shall have acted reasonably and
that the relevant grounds exist the Councils Counter Notice shall be deemed to take effect
and the SOS Consent shall not be Satisfactory SOS Consent unless the Buyer shall make an
offer (subject to contract) in accordance with clause 6.5.3 within 20 Working Days of such
agreement or determination.
6.5.3 The Buyer may offer (subject to contract) to reimburse the whole or part of any such
Additional Expenditure on such terms as may be proposed by the Buyer and in such event
the Buyer and the Council shall use all reasonable endeavours to agree the terms of a
supplemental agreement (a Supplemental Agreement) containing the terms upon which
such Additional Expenditure shall be reimbursed by the Buyer.
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6.5.4 The Council shall not unreasonably refuse to accept the proposed terms of the Supplemental
Agreement and in default of agreement the terms thereof shall if so required by the Buyer be
determined by an Expert in accordance with clause 40.1.
6.5.5 Following agreement or determination of the terms of the Supplemental Agreement the
Council and the Buyer shall if so required by the Buyer within 10 Working Days of such
agreement or determination complete the Supplemental Agreement as soon as possible
following such requirement and following such requirement of the Buyer the SOS Consent
shall be deemed to be a Satisfactory SOS Consent.
6.5.6 If the Buyer shall require the Council to complete the Supplemental Agreement pursuant to
clause 6.5.5 but the Council shall fail to do so within 10 Working Days of such requirement
the Buyer may Terminate this Agreement by serving 5 Working Days notice of such
Termination on the Council, and on the expiry of such notice this Agreement will Terminate
subject to the provisions of Schedule 16.
6.5.7 If the Buyer shall not require the Council to enter into the Supplemental Agreement in
accordance with clause 6.5.5 then the SOS Consent will not be a Satisfactory SOS Consent.
6.6 Where an SOS Consent is refused or is not a Satisfactory SOS Consent under clauses 6.3.2,
6.4 or 6.5.7 then the Buyer may:
6.6.1 require the Council to make one further application within 3 months (or such longer period as
the Buyer may specify) of being requested in writing to do so by the Buyer, in which case the
provisions of clause 6.1 to this clause 6.6 (inclusive) shall apply but the obligation set out in
this clause 66.1 to make a further application shall not apply and the words within one month
of the date of this Agreemenr in clause 6.1.1 shall not apply; or
6.6.2 Terminate this Agreement by servingS Working Days notice of such Termination on the
Council, and on the expiry of such notice thia Agreement will Terminate subject to the
provisions of Schedule 16.
6.7 If the Council fails to submit an application pursuant to clause 6.1 and/or clause 6.6.1 within
the time periods specified (whether or not the relevant Council resolution shall have been
obtained) the Buyer may Terminate this Agreement by serving 5 Working Days notice of such
3 determination on the Council, and on the expiry of such notice this Agreement will Terminate
subject to the provisions of Schedule 16.
6.8 Either Party shall be entitled to Terminate this Agreement by serving 5 Working Days notice
of such Termination on the other, if:
6.8.1 no SOS Consent has been issued within 18 months of the date of this Agreement (and no
SOS Consent is issued before such Termination takes effect): or
6.8.2 no Satisfactory SOS Consent has been issued within 18 months of the date of this Agreement
(and no Satisfactory SOS Consent is issued before such Termination takes effect): or
6.8.3 no Secure Satisfactory SOS Consent is in place by the date which is 24 months after the date
of this Agreement (and no Secure Satisfactory SOS Consent is in place before such
Termination takes effect),
subject to the provisions of Schedule 16.
6.9 Where:
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6.9.1 an SOS Consent issued after an application made in accordance with clause 6.1 is not a
Satisfactory SOS Consent under clause 6.3.1 (and no Satisfactory SOS Consent is issued
before such Termination takes effect); and
6.9.2 the Buyer has not required the Council to make one further application under clause 6.6.1;
then after the date that is 4 months after the receipt of the copy consent under clause 6.1.5
the Council may, unless the Council shall have made such an application, Terminate this
Agreement by serving 5 Working Days notice of such Termination on the Buyer, and on the
expiry of such notice this Agreement will Terminate subject to the provisions of Schedule 16.
6.10 Where an SOS Consent issued after a further application under clause 6.6.1 has been made
is not a Satisfactory SOS Consent under clause 6.3.1 (and no Satisfactory SOS Consent is
issued before such Termination takes effect) then after the date that is 4 months after the
receipt of the copy of the said consent under clause 6.1.5 the Council (not being in breach of
its obligations in Clause 6.5) may Terminate this Agreement by serving 5 Working Days
notice of such Termination on the Buyer, and on the expiry of such notice this Agreement will
Terminate subject to the provisions of Schedule 16.
7 Assurances
7.1 The Council confirms that the statements at clause 7.3 are each true, complete and accurate
and not misleading in any respect at the date of this Agreement.
7.2 The Council acknowledges that the Buyer is entering into this Agreement in reliance upon the
statements made in clause 7.3 which have also been given as representations with the
intention of inducing the Buyer to enter into this Agreement.
7.3 The Council holds its land as follows:
(a) Farm Lane Held as supported housing in its capacity as social
services authority under section 21 of the National
Assistance Act 1948
(b) Gibbs Green School Held as a school
(c) Option Land and the Held for the purposes of Part II of the Housing Act 1985
Seagrave Road Houses (including that land let to tenants pursuant to the exercise
of the Right to Buy)
The Council confirms that it does not hold any part or parts of Farm Lane, Gibbs Green
School, the Option Land, the Seagrave Road Houses or LBHF Land for any purpose other
than as set out at clause 7.3 except for any de minimb use.
8 Sale and purchase of the Option Land (Seagrave Road Houses) and Advance
Payments and adjustments
8.1 Subject to the adjustments provided for in this Agreement, the aggregate consideration for the
Option Land, Gibbs Green School and Farm Lane shall be 104,500,000 (save where the
Seagrave Road Houses are included in the Option Land in which event in accordance with
clause 8.12.1 the aggregate consideration shall be 105,000,000) which shall be payable as
follows:
60
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8.1.1 on the date of this Agreement the following amounts shall be treated as having been repaid
under the terms of the Exclusivity Agreement and paid under this Agreement as part of the
aggregate consideration as aforesaid (receipt of which the Council confirms):
(a) 10,000,000; and
(b) 5,000,000;
8.1.2 the sum of 9,300,000 for Gibbs Green School shall be payable on the date of this
Agreement by the Buyer to the Council pursuant to the provisions of Schedule 4;
8.1.3 the sum of 5,700,000 for Farm Lane shall be payable on the date of this Agreement by the
Buyer to the Council pursuant to the provisions of clause 2;
8.1.4 following the satisfaction of the Trigger Condition the Buyer will pay to the Council the
Advance Payments in cleared funds as follows:
(a) where the Trigger Condition is satisfied on or before 31 December 2015 the first
Advance Payment shall be due on 31 December 2015 and an Advance Payment
shall be due on each of the four subsequent anniversaries of that date;
(b) where the Trigger Condition is satisfied after 31 December 2015:
(i) the first Advance Payment shall be due on the date of the satisfaction of the
Trigger Condition and an Advance Payment shall be due on each of the four
subsequent anniversaries of that date; and
(ii) each Advance Payment shall be adjusted in line with the movements in RPI
from the date on which it would have been due under clause 8.1.4(a) if the
Trigger Condition had been satisfied on or before 31 December 2015 to the
due date for payment under this clause 8.1.4(b). The indexation movement
shall be calculated by takin~ the index figure for the month of December in
the year in which the relevant Advance Payment would have been due under
clause 8.1.4(a) and the index figure for the calendar month before the month
in which the relevant Advance Payment is actually due under this clause
8.1.4(b).
8.2 The payment of 5,000,000 acknowledged as paid pursuant to clause 8.1.1(b) is non
refundable and shall not be repayable by the Council to the Buyer in any circumstances.
8.3 The Buyer may (but shall not be obliged to) make payments in respect of the Balance ahead
of the due dates for payment of Advance Payments and any such payments shall not be
subject to indexation as provided in clause 8.1 .4(b)(ii).
8.4 The Advance Payments shall be subject to the adjustments and deductions provided for in
clause 9.
8.5.1 For the purposes of this clause 8.5 the total consideration for the Option Land shall be
apportioned pro rata based on area and using the sum of 90,000,000 as the total
consideration if the Seagrave Road Houses are included in the Option Land at the relevant
time and 89,500,000 if they are not;
8.5.2 If at the date of any proposed Phase Transfer:
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(a) the area of the Option Land already transferred to the Buyer under this Agreement
together with the part of the Option Land to be transferred to the Buyer by the said
Phase Transfer as a proportion of the total area of the Option Land (for the avoidance
of doubt excluding Gibbs Green School and Farm Lane)
exceeds
(b) the proportion of the total consideration paid by the Buyer (this being the aggregate of
the 1 5m paid to the Council referred to in clause 8.1.1 and the amount of any
Advance Payments paid under clause 8.1.4 prior to the date of such Phase Transfer)
then the Buyer shall as a pre-condition to the completion of the said Phase Transfer bring
forward such part of the next Advance Payment and pay the same on completion of the said
Phase Transfer as may be necessary to prevent the proportion of Option Land in clause
8.5.2() exceeding the proportion of the total consideration in clause 8.5.2(b).
Seagrave Road Houses
8.6 The Buyer may propose a scheme of development that includes the Seagrave Road Houses,
and if the Buyer intends to do this the Buyer must provide the Council with documentation
describing the scheme in similar detail to that which would be required for an outline planning
application for the Council to undertake the consultation process described in clause 8.7.
8.7 The Council shall as soon as reasonably practicable (and in any event within 6 months of the
date of receipt of the information set out in clause 8.6) undertake and as far as practicable
complete such consultation with the tenants of the Seagrave Road Houses as is required
under section 105 of the Rousing Act 1985 together with a non-statutory consultation in
relation to the disposal of the Seagrave Road Houses with vacant possession in relation to
similar matters to those upon which the Council consulted in relation to the Option Land with
regard to the disposal of the Council Owned Residential Units. The Parties acknowledge and
agree that as part of such consultation the Secure Tenant Contract is to be made available to
any secure tenant of the Seagrave Road Rouses.
8.8 As soon as reasonably practicable following the later of:
8.8.1 the expiry of the consultation process; and
8.8.2 the making of a Planning Application (Seagrave Road Houses);
the Council shall (if following a meeting of the full Council it resolves that it is appropriate to
do so having regard to such consultation) apply for SOS Consent in respect of the Seagrave
Road Houses being included in the Option Land and being subject to the Option and to the
other dispositions envisaged by this Agreement. The application (if made) shall be in such
form and with such supporting information as may reasonably be required to maximise the
prospects of securing an SOS Consent that satisfies the SOS Consent Criteria (so far as they
relate to the Seagrave Road Houses).
8.9 The provisions of clauses 6.1.1 to 6.6.1 (inclusive) shall apply to the application for SOS
Consent pursuant to clause 8.8 mutatis mutandis (and reference to an application made
under clause 6 shall include an application made under this clause 8).
8.10 Where a Satisfactory SOS Consent is secured pursuant to clause 8.9 the Seagrave Road
Houses shall form part of the Option Land and being subject to the Option.
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8.11 Ifs Satisfactory SOS Consent is not secured pursuant to clause 8.9 within 3 years from the
date of this Agreement then at any time before such a Satisfactory SOS Consent is secured
either Party may serve written notice on the other excluding the Seagrave Road Houses from
the Option Land and upon the service of such a notice the Seagrave Road Houses shall be
excluded from the Option Land and shall not be subject to the terms of this Agreement.
8.12 Where pursuant to the provisions of clause 8.10 the Seagrave Road Houses are included in
the Option Land then:
8.12.1 the aggregate cash consideration payable for the Option Land shall be increased to
105,000,000;
8.12.2 the maximum number of Replacement Homes required to be provided by the Buyer shall be
increased to 766 (as set out in the definition of Scheme Replacement Homes Allowance at
clause 1);
8.12.3 the Scheme Replacement Homes CIA Allowance shall be increased to 68,446 square metres
(as set out in the definition of Scheme Replacement Homes CIA Allowance at clause 1);
8.12.4 the numbers in the Halfway Condition and paragraph 1.2 of Schedule 18 shall be increased to
297 Replacement Homes and a CIA of 26,538 square metres (as set out in the definition of
Halfway Condition at clause 1);
8.12.5 the numbers in paragraph 1.11 of Schedule 18 shall be increased to 267 Replacement
Homes and a CIA of 23,884 square metres;
8.12.6 the Scheme Replacement House Allowance shall be increased to 77 (as set out in the
definition of Scheme Replacement House Allowance at clause 1); and
8.12.7 the Total Social Housing Unit Number Allowance shall be increased to 595 (as set out in the
definition of Total Social Housing Unit Number Allowance at clause 1).
8.13 Notwithstanding the foregoing provisions of this clause 8, the Seagrave Road Houses shall
not under any circumstances be or be deemed to be part of the Actual GEA and no Overage
or other contingent payments shall be payable to the Council in relation to the Seagrave Road
Houses under the terms of this Agreement.
Section 34A Adjustments
8.14 In the event that any part of the Option Land (S34A Land) is transferred to a third party
pursuant to a Section 34A Application (a Section 34A Event) then the Buyer shall be
entitled to elect by written notice served on the Council (a S34A Election Notice) within 6
months of such Section 34A Event whether:
8.14.1 to Terminate this Agreement; or
8.14.2 to require that the S34A Land shall continue to be part of the Option Land for the purposes of
this Agreement
8.14.3 to require that the S34A Land shall thenceforth be excluded from the Option Land for the
purposes of this Agreement,
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and in the event that the Buyer fails to serve a S34A Election Notice within 6 months of the
Section 34A Event the Buyer shall be deemed to require the Section 34A Land to continue to
be part of the Option Land for the purposes of this Agreement.
8.15 If the S34A Election Notice shall specify that the Buyer elects to exclude the S34A Land from
the Option Land then the S34A Land shall thereafter be excluded from the Option Land and
the following shall apply:
8.15.1 the cash consideration payable pursuant to this clause 8 shall be reduced pro rata to take
account of the value of the acreage of the Option Land which is subject to such application at
the rate of [~4,734,068] per acre, without prejudice to clause 8.2, provided that such reduction
shall not require the Council to repay the payments of 5,000,000 or 10,000,000 referred to
in clause 8.1.1 save in the circumstances set out in paragraph 8.1 of Schedule 16;
8.15.2 the Scheme Replacement Homes CIA Allowance (expressed in square metres) shall be
reduced by an amount calculated by multiplying the total number of bedrooms in the Existing
Homes within the S34A Land by 41.45 square metres;
8.15.3 the Scheme Replacement Homes Allowance shall be reduced by a sum equal to the number
of Existing Homes within the S34A Land;
8.15.4 the Scheme Replacement House Allowance shall be reduced pro rata so that after such
reduction, the proportion that it bears to the Scheme Replacement Homes Allowance shall be
the same after the reduction in the Scheme Replacement Homes Allowance pursuant to
clause 8.15.3 as it was before such reduction (rounded to the nearest whole number);
8.15.5 the Scheme House Equivalent Replacement Home Allowance shall be reduced pro rata so
that after such reduction, the proportion that it bears to the Scheme Replacement Homes
Allowance shall be the same after the reduction in the Scheme Replacement Homes
Allowance pursuant to clause 8.15.3 as it was before such reduction (rounded to the nearest
whole number);
8.15.6 the target unit number specified in the definition of Halfway Condition and paragraph 1.2 of
Schedule 18 shall be substituted by such figure as shall be calculated by subtracting the
number of Existing Homes that are Social Housing Units within the S34A Land from the Total
Social Housing Unit Number Allowance and multiplying the result by 50% (rounded down to
the nearest whole number);
8.15.7 the target CIA specified in the definition of Halfway Condition and paragraph 1 .2 of
Schedule 18 shall be reduced by the sum that equals the number of bedrooms in the Existing
Homes that are Social Housing Units within the S34A Land multiplied by 41.45 square metres
and then multiplied by 50% (rounded down to the nearest whole number);
8.15.8 the numbers in paragraph 1.11 of Schedule 18 shall be reduced as follows:
(a) the figure set out at paragraph 1.11(a) of Schedule 18 shall be substituted by such
figure as is calculated by subtracting the number of Existing Homes that are Social
Housing Units within the 534A Land from the Total Social Housing Unit Number
Allowance and multiplying the result by 45% (rounded down to the nearest whole
number);
(b) the CIA figure set out at paragraph 1.11(b) of Schedule 18 shall be reduced by the
sum that equals the number of bedrooms in the Existing Homes that are Social
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Housing Units within the S34A Land multiplied by 41 .45 square metres and then
multiplied by 45% (rounded down to the nearest whole number);
8.15.9 the area which has been affected by such Section 34A Event will not comprise part of the
Compensation Overage Area; and
8.15.10 the amount of the next instalment or instalments of the Advance Payment will be reduced to
reflect any reduction in the cash consideration in accordance with clause 8.15.1 and, in the
event that all instalments of the Advance Payment have been paid, any over payment of the
Advance Payment shall be repaid to the Buyer within 20 Working Days;
8.15.11 from the date of the S34A Election Notice:
(a) the Council may (or if required by the Buyer shall forthwith) terminate the Purchase
Contracts that apply to the Existing Homes that are part of the S34A Land; and
(b) where applicable, the Councils obligations to market or enter into further Purchase
Contracts should be terminated for the Existing Homes that are part of the S34A
Land.
8.16 If the S34A Election Notice shall specify that the Buyer elects to continue to treat the land as
Option Land or the Buyer is deemed to elect to continue to treat the land as Option Land the
following shall apply:
8.16.1 the Council will not be treated in breach of the terms of this Agreement due to the Council:
(a) completing the transfer of the S34A Land to the third party;
(b) failing to give title to, allow access to or otherwise control the use of such 534A Land
but subject and without prejudice to the ability of the Buyer to include the S34A Land
in a Demolition Phase so that the provisions of this Agreement shall apply accordingly
subject to there being no prohibition as a matter of law on such S34A Land being
included in a CPO.
8.16.2 from the date of the S34A Election Notice:
(a) the Council may (or if required by the Buyer shall forthwith) terminate the Purchase
Contracts that apply to the Existing Homes that are part of the S34A Land; and
(b) where applicable, the Councils obligations to market or enter into further Purchase
Contracts should be terminated for the Existing Homes that are part of the SS4A
Land.
8.17 If the S34A Election Notice shall specify that the Buyer elects to Terminate this Agreement
then this Agreement shall on the service of such notice Terminate with immediate effect and
the provisions of Schedule 16 shall apply.
9 Deductions and adjustments and payments: Allowable Revenue Expenditure
and Allowable Capital Expenditure
9.1 The Buyer shall prepare the Deductions Account which shall show all accrued but unpaid
Allowable Capital Expenditure, Allowable Revenue Expenditure and Holding Cost Allowance.
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9.2 The first accounting period for a Deductions Account shall be the period from the date of this
Agreement up to 31 March 2013 and subsequent accounting periods for subsequent
Deductions Accounts shall be each subsequent year to 31 March, until preparation of the
Final Account as provided for in paragraph 5 of Schedule 16.
9.3 The Deductions Account shall be provided in draft within 20 Working Days of 31 March in
each year and quarterly updates will be provided to the Council within 20 Working Days of the
end of each quarter.
9.4 The Deductions Account for each accounting period (but not the quarterly updates) shall be
audited and certified on behalf of the Buyer as being correct by a suitably qualified accountant
(who may be a member of the Buyers own staff) and provided to the Council by 31 January
the following year.
9.5 Within 30 Working Days after the delivery of each draft Deductions Account pursuant to
clause 9.3 the Council shall pay to the Buyer all unpaid:
9.5.1 Holding Cost Allowance; and
9.5.2 Allowable Revenue Expenditure,
incurred after the date of this Agreement (save in respect of sums incurred under the Blight
Indemnity Agreement prior to the date of this Agreement which shall be treated as Allowable
Capital Expenditure and Holding Cost Allowance shall accrue thereon as from the date such
expenditure was incurred) provided that the Council shall be entitled by written notice to the
Buyer given at any time during such 30 Working Day period to elect to defer the whole or any
part of payments of Holding Cost Allowance and Allowable Revenue Expenditure but only
insofar as the same will be recovered in full by way of deduction from the next Advance
Payment which falls due and with effect from such notification Holding Cost Allowance shall
continue to accrue on such deferred payments until the same are deducted from an Advance
Payment or otherwise paid to the Buyer.
9.6 Notwithstanding any other provision of this Agreement no Holding Cost Allowance shall be
payable prior to the service of the Trigger Notice and payment of the first Advance Payment
and in the event of Termination of this Agreement prior to the service of the Trigger Notice
and the payment of the first Advance Payment any Holding Cost Allowance that has accrued
as provided in this Agreement shall be waived by the Buyer and shall cease to be payable by
the Council.
9.7 The Deductions Account will include the following information:
9.7.1 details of the properties in respect of which Holding Cost Allowance is accruing:
9.7.2 the amount of outstanding Allowable Capital Expenditure in respect of each such property;
9.7.3 the monthly rate of accrual of Holding Cost Allowance for each property;
9.7.4 the total Holding Cost Allowance accrued in respect of each property that shall not have been
discharged by previous payments or set off; and
9.7.5 the total outstanding Allowable Revenue Expenditure that shall not have been discharged by
previous payments or set off.
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9.8 In the event that the income received by or on behalf of the Buyer from any Existing Home
exceeds the Allowable Revenue Expenditure for the same period for such property the Buyer
shall apply such excess in reduction of any unpaid Allowable Capital Expenditure.
9.9 In the event that there is no (or insufficient) unpaid Allowable Capital Expenditure fully to
utilise any excess income as referred to in clause 9.8 any excess income remaining shall be
accounted for in the next Deductions Account (or the Final Account as the case may be).
9.10 The Parties (each acting reasonably) shall seek, as soon as reasonably practicable following
the date of this Agreement, to agree a policy (the Maintenance Policy). The objectives of
the Maintenance Policy (the Maintenance Policy Objectives) shall be to procure that the
maintenance costs that would be incurred and recoverable as Allowable Revenue
Expenditure are kept to a reasonable level and as low as is reasonably possible consistent
with maintenance and management of the properties to a reasonable standard for occupation
and income generation if appropriate prior to their demolition. The Maintenance Policy shall
(inter alia) set out those maintenance tasks in relation to properties which may be undertaken
at reasonable cost by or on behalf of the Buyer without the requirement for further approval of
the Council and setting out the maintenance approach to be adopted such policy to be subject
to review from time to time having regard to the timing at which vacant possession might be
reasonably be expected to be obtained of such properties. If the Maintenance Policy is not
agreed within one month of the date of this Agreement then either Party may refer the matter
for determination by an Expert pursuant to clause 40.4.
9.11 Amounts expended in accordance with the Maintenance Policy shall be deemed to be
Allowable Revenue Expenditure.
9.12 Pending settlement of the Maintenance Policy the maintenance costs expended on properties
shall count as Allowable Revenue Expenditure where (a) they are approved by the Council
acting reasonably having regard to the Maintenance Policy Objectives, (b) they are consistent
with the Maintenance Policy Objectives or (c) they relate to reasonable emergency works
where further damages to the relevant property or danger to health or safety would be caused
if such works were not carried out forthwith. Any dispute as to whether any costs falling within
this clause 9.12 shall count as Allowable Revenue Expenditure may be referred by either
Party to an Expert for determination pursuant to clause 40.4.
9.13 The Buyer shall make the following deductions from each Advance Payment of the relevant
amounts as shown in the latest quarterly update of the Deductions Account (in order of
priority so far as they go):
9.13.1 All unpaid Allowable Capital Expenditure (but so that except in the case of the last Advance
Payment deductions under this clause 9.13.1 shall not exceed 50% of the relevant Advance
Payment but without prejudice to the obligation of the Council to pay any outstanding and
further Allowable Capital Expenditure referred to in any Deductions Account issued after the
final Advance Payment or the Final Account);
9.13.2 all unpaid Holding Cost Allowance; and
9.13.3 all unpaid Allowable Revenue Expenditure.
9.14 Any remaining unpaid Holding Cost Allowance or Allowable Revenue Expenditure will be paid
by the Council to the Buyer pursuant to clause 9.5 but any remaining Allowable Capital
Expenditure not deducted under clause 9.13 shall continue to accrue Holding Cost Allowance
and shall be carried forward for deduction from the next Advance Payment and so on and any
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remaining shall be deducted from the final Advance Payment. After the final Advance
Payment all further or remaining Holding Cost Allowance, Allowable Revenue Expenditure or
Allowable Capital Expenditure will be payable by the Council to the Buyer annually within 20
Working Days after the delivery of each draft Deductions Account or the Final Account (as the
case may be).
9.15 In the event of a dispute as to the content of a Deductions Account (or the Final Account)
interim payment shall be made in accordance with the draft Deductions Account or draft Final
Account and the dispute may be referred for determination pursuant to clause 40 and where
following determination it transpires that an over or underpayment has been made a refund or
additional payment shall be made together with interest at the base rate of Barclays Bank
PLC from time to time for the period from the original payment to the date of the payment or
refund as applicable.
9.16 Notwithstanding any other provision of this clause 9 the Council shall be entitled to pay all
Allowable Capital Expenditure:
9.16.1 at the time of completion of the relevant acquisition; or
9.16.2 as a single payment within 2 calendar months of delivery of a Deductions Account; or
9.16.3 at any time provided such payment is in a sum of not less than 1000000 and comprises the
whole of the Allowable Capital Expenditure relating to one or more complete property.
9.17 Notwithstanding any other provision of this clause 9 the Council shall be entitled at the end of
each quarter to pay all Allowable Revenue Expenditure and/or Holding Cost Allowance
provided such payment is a sum of no less than 10000 and comprises the whole of the
Allowable Revenue Expenditure and/or Holding Cost Allowance relating to one or more
complete property.
9.18 Where pursuant to the terms of a Purchase Contract, a Voluntary Advance Purchase Contract
or otherwise an Existing Home is transferred to the Buyer and the Allowable Capital
Expenditure in respect of the purchase of such property is paid or repaid by the Council to the
Buyer the Council shall be granted a first ranking legal charge in the form of the Standard
Property Mortgage over the relevant Existing Home to which such Allowable Capital
Expenditure relates and the mortgage shall secure such Allowable Capital Expenditure.
9.19 The legal charge referred to in clause 9.18 shall be released by the Council immediately upon
the earliest of:
9.19.1 the relevant Existing Home being included within a Phase Completion;
9.19.2 repayment by the Buyer to the Council of the sum secured;
9.19.3 the payment of the final Advance Payment; and
9.19.4 the relevant Allowable Capital Expenditure being taken into account in the Final Account.
9.20 The charge taken pursuant to clause 9.18 shall permit the Buyer to permit occupation under
arrangements that do not confer security of tenure to the occupier.
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10 Councils adverse rights agreement
10.1 The Council and the Buyer shall complete the Seagrave Road Adverse Rights Deed within 10
Working Days of the service of written notice by the Buyer on the Council requiring the same
to be completed provided such notice is served within 3 months of the date of this Agreement.
10.2 The Council shall no later than 10 Working Days following the Trigger Date execute and
deliver to the Buyer the Second Adverse Rights Deed.
11 Phasing Programme and Phase drawdown
11.1 Phasing Programme
11.1.1 The Phasing Programme shall reflect the Key Phase Criteria.
11.1.2 If the Buyer anticipates that the Demolition Phases will not be brought forward substantially in
accordance with the Phasing Programme, the Buyer will notify the Council in writing of this
and provide the Council with:
(a) a new Phasing Programme that reflects the Key Phase Criteria and the Buyers
revised plans; and
(b) a reasoned explanation for the change.
11.1.3 The evolution of the Phasing Programme and any proposed changes to it will be considered,
together with the Rehousing Report, at not less than 3 monthly intervals by the Project
Delivery Group.
11.1.4 The Phasing Programme is indicative only and will have no legal effect and nothing in this
clause 11 shall fetter, in any way, the ability of the Buyer to change the Phasing Programme
and/or the way in which the Buyer brings forward Phases.
11.2 Pre PPDN and engagement with residents
11.2.1 When the Buyer has reasonably settled plans for a proposed Demolition Phase in relation to
which it may wish to serve a PPDN, the Buyer will notify the Council in writing of this and
provide to the Council:
(a) a plan identifying the location of the proposed Demolition Phase and the location of
the proposed Build Phase; and
(b) computer-generated imagery showing the potential exterior appearance of typical
units that may be constructed on the proposed Build Phase; and
(c) floor plans showing the anticipated layout of such typical units,
save that both Parties acknowledge that such imagery and floor plans are being provided for
the purpose of engaging with residents and such imagery and floor plans shall not fetter, in
any way, the ability of the Buyer to change the exterior appearance, type, layout or any other
detail of the units that are actually built on the Build Phase from that shown in such imagery
and floor plans.
11.2.2 If the location ofihe proposed Build Phase includes any part of Farm Lane:
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(a) within 10 Working Days of the date on which the Buyer provides to the Council all of
the information that it is required to provide pursuant to clause 11 .2.1, the Council
shall notify the Buyer, in writing, whether it agrees to Farm Lane being included in the
Build Phase for the purposes of the engagement process to be undertaken with
residents pursuant to this clause 11.2;
(b) if the Council does not agree to Farm Lane being included in the proposed Build
Phase pursuant to clause 11.2.2(a), then, if the Buyer wishes to proceed with the
Demolition Phase proposed pursuant to clause 11.2.1, the Buyer will commence the
Phase Setting Process again in accordance with clause 11.2.1 and propose to the
Council an alternative Build Phase that does not include Farm Lane. For the
avoidance of doubt, if the Council rejects the inclusion of Farm Lane on a proposed
Build Phase the Buyer shall be at liberty to propose to include (but the Council will be
under no obligation to accept) all or part of Farm Lane in any Build Phases it
subsequently proposes pursuant to this clause 11.2;
(c) if the Council fails to provide such written confirmation pursuant to clause 11 .2.2(a)
within 10 Working Days, the Council shall be deemed to agree to Farm Lane being
included within the engagement process to be undertaken with residents pursuant to
this clause 11 .2;
(d) for the avoidance of doubt the Councils express or deemed agreement to the
inclusion of Farm Lane within the proposed Build Phase pursuant to this clause
11.2.2 shall not constitute the Councils final and binding agreement, for the purpose
of clause 13.1.2(b), that Farm Lane can be included in the proposed Build Phase.
Such final and binding agreement can be provided only in accordance with clause
11.2.8;
(e) clauses 11.2.7(b) and 11.2.12 shall not apply to the Councils decision whether to
agree to the inclusion of Farm Lane in the proposed Build Phase.
11 .2.3 The Council and the Buyer shall engage with residents who live in Existing Homes located in
the proposed Demolition Phase and the objectives of such engagement are to inform, and
invite feedback from, such residents on the following matters:
(a) the location and boundary of the proposed Demolition Phase and corresponding Build
Phase and that such residents may be part of such forthcoming Demolition Phase
(but that there is no guarantee of this, at this stage);
(b) the proposed design, the potential exterior appearance and the anticipated floor plan
layout of the typical units that may be constructed on the proposed Build Phase, as
demonstrated in the computer-generated imagery and floor plans provided;
(c) indicative dates as to when the Build Phase is likely to be completed and when
residents would need to move out of their Existing Homes if the proposed Phase was
to go ahead. Such indicative dates shall be consistent with the Phasing Programme;
(d) any personal preferences that each resident may have concerning the allocation of
their Replacement Home and the timing of the move into their Replacement Home
(should they become and remain entitled to such Replacement Home),
and it is acknowledged by both Parties that such engagement shall not be a formal statutory
consultation with residents.
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11.2.4 As soon as reasonably practicable after the date on which the Buyer provides to the Council
all of the information that it is required to provide pursuant to clause 11.2.1 (but in any event
no later than 2 months from that date), the Buyer and the Council shall together use
reasonable endeavours to:
(a) agree the form of any documentation reasonably required to undertake such
engagement; and
(b) agree the steps to be undertaken by both Parties as part of such engagement
process including:
(I) the date on which the engagement process with residents shall be treated as
having been commenced and such date shall be no later than 2 months from
the date on which the Buyer provides to the Council all of the information that
it is required to provide pursuant to clause 11.2.1; and
(ii) the date on which the engagement process with residents shall end and such
date shall be no later than 3 months from the date on which the Parties
agree, pursuant to clause 11 .2.4(b)(i), that the engagement process shall be
treated as having been commenced.
11.2.5 No later than the date agreed by the Parties pursuant to clause 11 .2.4(b)(i), the Parties shall
commence and progress such engagement in accordance with the steps agreed pursuant to
clause 11.2.4 and such engagement shall continue for the period agreed between the Parties
pursuant to clause 11 .2.4(b).
11 .2.6 The Council and the Buyer agree to allocate such reasonable resources and to make such
personnel available as is reasonably required to take part in and conclude such engagement
within the agreed periods.
11.2.7 The Buyer and the Council shall share and review the responses received to such
engagement and the Buyer shall have reasonable regard to any reasonable requests that are
made by the Council to modify the Buyers proposals in the light of the responses received
save that the Buyer is not obliged to have regard to any requests that:
(a) are made later than the date that is 5 months and 2 weeks after the date on which the
Buyer provided to the Council all of the information required pursuant to clause
11.2.1;
(b) would require a modification that would not be consistent with the Planning Decision,
any Planning Permission (outline or otherwise) secured already or any Planning
Agreement previously entered into in connection with the proposed Demolition Phase
and/or Build Phase.
11 .2.8 If the location of the proposed Build Phase includes all or any part of Farm Lane:
(a) the Council shall notify the Buyer, in writing, whether it agrees to the inclusion of
Farm Lane by no later than the date which is 5 months and 2 weeks after the date on
which the Buyer provided to the Council all of the information required pursuant to
clause 11.2.1. If the Council fails to provide such written confirmation by that date,
the Council shall be deemed to have agreed to the inclusion of Farm Lane within the
proposed Build Phase and the Councils express or deemed agreement to the
inclusion of Farm Lane within the proposed Build Phase pursuant to this clause
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11.2.8 shall constitute the Councils final and binding agreement for the purposes of
clause 13.1.2(b) that Farm Lane can be included in the proposed Build Phase;
(b) if the Council does not agree to Farm Lane being included in the proposed Build
Phase pursuant to clause 11.2.8(a) then f the Buyer wishes to proceed with the
Demolition Phase proposed pursuant to clause 11.2.1, the Buyer will commence the
Phase Setting Process again in accordance with clause 11.2.1 and propose to the
Council an alternative Build Phase that does not include Farm Lane. For the
avoidance of doubt, if the Council rejects the inclusion of Farm Lane in a proposed
Build Phase the Buyer shall be at liberty to propose to include (but the Council will be
under no obligation to accept) all or part of Farm Lane in any Build Phases it
subsequently proposes pursuant to this clause 11.2; and
(c) clauses 11.2.7(b) and 11.2.12 shall not apply to the Councils decisi.on whether to
agree to the inclusion of Farm Lane in the proposed Build Phase.
11.2.9 If, following a request received pursuant to clause 11 .2.7, the Buyer agrees to modify the
boundary of the proposed Demolition Phase and/or modify its proposal for a Build Phase and
proceeds aubsequently with that proposed Demolition Phase and/or Build Phase it shall
(where necessary) include such modifications in:
(a) the PPDN served subsequently in relation to the proposed Demolition Phase and/or
Build Phase; and
(b) any application to the Council as the local planning authority for either approval of
Reserved Matters or grant of a Planning Permission in relation to the proposed Build
Phase.
11.2.10 At any time prior to the service of a PPDN, the Parties may agree (but shall not be obliged to
do so) an alternative Demolition Phase and/or Build Phase to that proposed by the Buyer
pursuant to clause 11.2.1. At the same time, the Parties shall agree the date after which the
Buyer will be entitled to serve a PPDN in relation to that alternative Demolition Phase and/or
Build Phase. The right to agree an alternative Demolition Phase and/or Build Phase pursuant
to this clause 11.2.10 is additional to any modification of the boundary of a proposed
Demolition Phase and/or Build Phase that the Buyer may make pursuant to clause 11.2.9.
11.2.11 At any time before the expiry of the engagement period referred to in clause 11.2.4(b), the
Council may notify the Buyer of any concerns that it has that the proposed Demolition Phase
may not satisfy the PPDN Criteria and/or the draft Phase Impact Strategy. The Buyer shall
have reasonable regard to such concerns when submitting a PPpN in relation to the
proposed Demolition Phase.
11.2.12 Either Party may refer any disputes arising from this clause 11.2 (save as excluded by
clauses 11.2.2(e) and 11.2.8(c)) to the Project Delivery Group, who shall meet within 10
Working Days of such referral in order to agree the disputed matter. If the matter is not
agreed at the meeting of the Project Delivery Group, or the meeting does not take place
within 10 Working Days of such referral, either Party may refer the matter to an Expert
pursuant to clause 40.4.
11.3 Phase Impact Assessment
11.3.1 No later than 3 months after the date on which the Buyer provides to the Council the
information required pursuant to clause 11.2.1, the Buyer shall provide the Council with a
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Phase Impact Assessment in relation to the Demolition Phase proposed by the Buyer
pursuant to clause 11.2.1 (or such alternative Demolition Phase as may have been agreed by
the Parties prior to that date pursuant to clauses 11 .2.7, 11 .2.9 or 11 .2.10).
11.3.2 The obligation to provide the Phase Impact Assessment pursuant to clause 11.3.1 is subject
to the Buyer being provided with access to those parts of the Option Land necessary to
complete any reasonable intrusive and non-intrusive survey and investigation work required in
order to be able to prepare the Phase Impact Assessment save that, in the event that the
Buyer requires access to Existing Homes, such access shall be limited to the completion of
any reasonable non-intrusive survey and investigation work. In the event that the necessary
access required pursuant to this clause 11.3.2 is not provided, the Buyer shall still be obliged
to provide a Phase Impact Assessment pursuant to clause 11.3.1 but the Parties
acknowledge that the Buyer will not be able to complete the Phase Impact Assessment in the
level of detail that it would otherwise have been able to do had it been provided with such
access. In such circumstances, the Buyer shall identify in the Phase Impact Assessment
what information it has not been able to provide as a result of not having been given access
and the further information that it would have been able to provide had it been given access.
11.3.3 The Parties shall use all reasonable endeavours to agree the draft Phase Impact Strategy
and, in agreeing this, the following provisions shall apply:
(a) the Parties shall allocate all reasonable resources and make available such
personnel as is reasonably required to agree the draft Phase Impact Strategy no later
than 3 months from the date on which the Phase Impact Assessment was submitted
to the Council; and
(b) in assessing the adequacy of the draft Phase Impact Strategy:
(i) due regard shall be given to mitigating the disruption that such development
works may cause to residents living on the Remaining Estate and ensuring
that those residents can continue to occupy and use their homes according to
reasonable standards of enjoyment in each case by reference to the standard
and/or steps that a reasonable developer would adopt/take in order to
progress the development of the proposed Demolition Phase in a reasonable,
timely, sufficient and cost-effective manner; and
(ii) it is acknowledged that the ability of the Buyer to develop the draft Phase
Impact Strategy and/or provide information is to be qualified by reference to
the information that a reasonable developer would have available to it:
(aa) at the start of Stage C of the RIBA Plan of Work (as is current at the
date of this Agreement); and
(bb) had it been given the same access to the Option Land as the Buyer
has been given access; and
(Hi) it is acknowledged that the draft Phase Impact Strategy will need to be
consistent with the Planning Decision, any Planning Permission and/or
Planning Agreement which applies to the area the subject of the draft Phase
Impact Assessment at the date on which it is provided to the Council
pursuant to clause 11.3.1 or 11.3.2.
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11.3.4 If the Parties are unable to agree the draft Phase Impact Strategy pursuant to clause 11.3.3,
either Party may refer the matter to the Project Delivery Group who shall meet within
10 Working Days of such referral and, in seeking to reach agreement shall apply the
standard and principles referred to at clause 11.3.3(b). If the matter is not agreed at the
meeting of the Project Delivery Group, or if the meeting does not take place within 10 Working
Days of such referral, either Party may refer the matter to an Expert pursuant to clause 40.4.
In such circumstances, the Expert shall, by reference to the standard and principles referred
to at clause 11.3.3(b):
(a) determine whether the draft Phase Impact Strategy proposed by the Buyer is
reasonable; and
(b) if he considers that it is not, determine the Phase Impact Strategy that he considers is
reasonable.
11 .3.5 The Parties acknowledge that, in the event that the Buyer decides to proceed with a proposed
Demolition Phase, the Phase Impact Strategy is likely to need revising during the course of
the Buyer bringing forward the development of the proposed Demolition Phase. The
evolution of, and any proposed changes to, the Phase Impact Strategy will be considered at
no less than 3-monthly intervals by the Project Delivery Group following the service by the
Buyer of a CPU Start Notice in relation to the proposed Demolition Phase. For the avoidance
of doubt:
(a) in relation to any Planning Agreement and or any planning condition that is negotiated
after a Phase Impact Strategy for the Demolition Phase to which the Planning
Agreement and/or any planning condition relates has been agreed, the Buyer will not
agree any proposed term of a Planning Agreement or any planning conditions which
are inconsistent with an agreed Phase Impact Strategy without first discussing this
with the Council for a period of not less than 2 weeks (or such other period as the
Parties may agree) following which the Buyer, having reasonable regard to any
comments made by the Council during such discussions, shall be entitled to agree
any proposed term of a Planning Agreement or planning conditions even if these are
inconsistent with an agreed Phase Impact Strategy; and
(b) in so far as any planning conditions, or any term of a Planning Agreement, which
were discussed with the Council are inconsistent with an agreed Phase Impact
Strategy then the Planning Agreement or the planning conditions shall take effect in
place of the corresponding measure set out in the Phase Impact Strategy.
11.4 PPDN
11.4.1 Subject to clause 11.4.2, the Buyer shall be entitled to serve a PPDN upon the Council
provided that:
(a) not less than 6 calendar months has expired since the date on which the Buyer
provided to the Council all of the information required pursuant to clause 11 .2.1 in
relation to:
(i) the Demolition Phase and/or Build Phase identified in the PPDN; or
() where the Demolition Phase and/or the Build Phase identified in the PPDN
has been modified by the Buyer in accordance with a request made by the
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Council pursuant to a clause 11.2.7, the Demolition Phase and/or the Build
Phase proposed by the Buyer prior to any such modification;
(b) not less than 4 calendar months has expired since the date on which the engagement
process commenced in relation to:
(i) the Demolition Phase and/or Build Phase identified in the PPDN; or
(U) where the Demolition Phase and/or the Build Phase identified in the PPDN
has been modified by the Buyer in accordance with a request made by the
Council pursuant to a clause 11.2.7, the Demolition Phase and/or the Build
Phase proposed by the Buyer prior to any such modification,
save that if, as a result of any action or inaction by the Council, the engagement
process was not commenced by the date agreed or determined pursuant to clause
11 .2.4(b) then this clause 11.4.1(b) shall not apply:
(c) the Phase Impact Strategy for the Demolition Phase proposed in the PPDN has been
agreed by the Parties or determined by the Expert pursuant to clauses 11.3.3 or
11 .3.4; and
(d) where:
(i) a proposed PPDN takes the aggregate (sum) of properties covered by all
Live PPDNs to 300 or more; or
(U) where there are already 2 Live PPDNs,
then the proposed PPDN may not be served until at least 2 months have passed
since the date on which the previous PPDN was served.
11.4.2 In the event that the Parties agree an alternative Demolition Phase and/or Build Phase
pursuant to clause 11.2.10, the Buyer shall be entitled to serve in writing upon the Council a
PPDN in relation to that alternative Demolition Phase and/or Build Phase provided that:
(a) the time period agreed between the Parties pursuant to clause 11.2.10 has expired;
and
(b) the Phase Impact Strategy for the Demolition Phase proposed in the PPDN has been
agreed by the Parties or determined by the Expert pursuant to clauses 11.3.3 and
11.3.4.
11.4.3 Each PPDN shall comply with the PPDN Criteria and the Phase Impact Strategy and shall
include all of the following information:
(a) a plan identifying that part of the Option Land comprising the Demolition Phase in
respect of which vacant possession is required;
(b) a plan or plans identifying the corresponding Build Phase for the Demolition Phase
identified in the PPDN;
(c) a list of the addresses of the properties in the Demolition Phase already owned or
controlled by the Buyer (including details of how many, if any, have gardens and/or
off street parking);
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(d) (where such information has been provided to the Buyer by the Council, via the
Rehousing Report) a list of the addresses of the properties in the Demolition Phase
subject to any uncompleted Early Purchase Contract, Advance Existing Purchase
Contract or Standard Purchase Contract or other purchase contract with either the
Buyer or the Council (including details of how many, if any, have gardens and/or off
street parking);
(e) (where such information has been provided to the Buyer by the Council, via the
Rehousing Report) a list of the addresses of those remaining number of residential
properties in the Demolition Phase (i.e. not within clauses 11 .4.3(c)and (d) above) of
which the Council will be required to give vacant possession of (including details of
how many, if any have gardens and/or off street parking);
(f) the Replacement Homes Proposal, which shall comprise the following information:
(i) the location of the proposed Replacement Homes to be made available by
the Buyer to replace the Existing Homes in the Demolition Phase, such
information to include the indicative layout of the Build Phase and the
indicative locations of the Replacement Homes within the Build Phase
(having regard to the plots and the fact that Replacement Homes may be in
multi-storey buildings); and
(N) the number of Replacement Homes that the Buyer will make available to
replace the Existing Homes in the Demolition Phase (and which shall be
calculated by reference to clause 13.2) and which shall include a breakdown
of:
(aa) the number of bedrooms in each Replacement Home;
(bb) the type of each Replacement Home; and
(co) the SIA of each Replacement Home;
(g) the number of Car Parking Spaces and, if any, Outstanding Car Parking Spaces
which the Buyer proposes to make available and which will be calculated in
accordance with clause 13.3; and
(h) a proposed Initial Target Vacant Possession Date.
11.5 ReviewofPPflN
11.5.1 Within 15 Working Days of service of a PPDN the Council shall notify the Buyer in writing that
it either:
(a) agrees that the PPDN complies with the PPDN Criteria and the Phase Impact
Strategy; or
(b) believes that (I) the PPDN Criteria have not been met, and/or (H) the Phase Impact
Strategy has been breached, in which case the Council shall, at the same time,
provide a reasoned written explanation as to why it believes this.
11.5.2 If the Council does not respond and/or fails to provide a reasoned written explanation in
accordance with clause 11.5.1, the Buyer shall be entitled to serve written notice on the
Council requiring it to do so. If the Council fails to respond to that further notice, and/or
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provide a reasoned written explanation as required by that notice Within 10 Working Days of
service of such notice, the Council shall be deemed to accept that the PPDN satisfies the
PPDN Criteria and/or the Phase Impact Strategy.
11.5.3 If the Parties are in dispute as to whether the PPDN Criteria have been met and/or whether
the PPDN complies with the Phase Impact Strategy, either Party may refer the matter to the
Project Delivery Group. The Project Delivery Group shall meet within 10 Working Days of
such referral and, if the matter is not agreed at that meeting, or the meeting does not take
place within 10 Working Days of such referral, either Party may refer the matter to an Expert
pursuant to clause 40.4.
11.5.4 If the Parties agree, or the Expert determines, that the PPDN does not satisfy the PPDN
Criteria and/or does not comply with the Phase Impact Strategy, the Buyer may either amend
the PPDN and resubmit it to the Council (in which case clauses 11.5.1 to 11.5.4 (inclusive)
shall apply to the re-submitted PPDN) or abandon the PPDN in its discretion.
11.5.5 The date on which it is agreed, deemed agreed or determined that the PPDN complies with
both the PPDN Criteria and the Phase Impact Strategy shall be the PPDN Date (or if the
dates on which it is agreed, deemed agreed or determined that the PPDN complies with the
PPDN Criteria and the Phase Impact Strategy are different, the PPDN Date will be the later of
those dates).
11.6 Detailed Needs Assessment and agreement of PPDN
11.6.1 On the PPDN Date the Council shall immediately commence a Detailed Needs Assessment
and report to the Buyer and the Project Delivery Group its findings on a fortnightly basis.
11.6.2 Within 3 months of the PPDN Date or such other time as the Council and the Buyer may (at
the Councils request) agree (the Response Period), the Council shall serve on the Buyer:
(a) the Phase Rehousing Report; and
(b) the PPDN Response.
11.6.3 If the Council confirms in the PPDN Response that it accepts the Replacement Homes
Proposal, the PPDN shall be the Agreed PPDN and the Agreed PPDN Date will be the date
on which the Council serves on the Buyer the PPDN Response.
11.6.4 If the Council does not provide the Phase Rehousing Report and/or the PPDN Response
within the Response Period, the Buyer shall be entitled to serve written notice on the Council
requiring it to do so within 10 Working Days of service of such notice. If the Council fails to
provide the Phase Rehousing Report and/or the PPDN Response within those 10 Working
Days, the Council shall be deemed to accept the PPDN, the PPDN shall be the Agreed PPDN
and the Agreed PPDN Date will be the date that is 10 Working Days after the date on which
the Buyer served written notice on the Council pursuant to this clause 11.6.4.
11.6.5 If the Council makes a request pursuant to clause 13.2.1(c) and/or requests any Flex and/or
the use of any Shortfall in the PPDN Response and the Buyer considers that such request
does not comply with the criteria in clauses 13.2.1(c) and/or 13.4, the Buyer shall notify the
Council of this within 10 Working Days of the date of service of the PPDN Response. At the
same time, the Buyer shall set out the reasons why it considers that the request does not
comply with the criteria in clauses 13.2.1(c) and/or 13.4.
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11.6.6 If the Council objects to the Replacement Homes Proposal and/or if the Buyer objects to the
Councils request pursuant to clause 13.2.1(c) and/or its request for Flex and/or the use of
any Shortfall:
(a) the Project Delivery Group shall meet within 10 Working Days of (i) the date on which
the Council has served the Phase Rehousing Report and/or the PPDN Response,
and/or (H) the date on which the Buyer objects to the Councils request pursuant to
clause 13.2.1(c) and/or its request for Flex and/or use of any Shortfall, in order to try
and agree the matter in dispute;
(b) if all the matters in dispute are agreed at that meeting, or on a date subsequent to
that meeting, the agreement reached shall be recorded by the Parties in the relevant
blank fields and columns of the PPDN, this shall become the Agreed PPDN and the
date on which all such matters are agreed shall be the Agreed PPDN Date;
(c) if any matters are still in dispute after that meeting, or the meeting does not take
place within the 10 Working Days required, either Party may refer the matter to an
Expert pursuant to clause 40.4 and the Expert shall determine what changes he
considers are required to the Replacement Homes Proposal and/or the requests for
Flex and/or Shortfall (as applicable) in order for the same to comply with the
provisions set out in clauses 13.2, 13.3 and 13.4 (as appropriate). The changes
determined by the Expert shall be recorded by the Expert in the relevant fields and
columns of the PPDN, this shall become the Agreed PPDN and the date of
determination by the Expert shall be the Agreed PPDN Date.
11.7 Gpo Start Notice
11.7.1 The Buyer may serve a CPO Start Notice on the Council in respect of a proposed CPO but in
respect of the Option Land where an Agreed PPDN is required and exists the Buyer will only
serve a GPO Start Notice in accordance with clause 11.7.2.
11.7.2 Once an Agreed PPDN exists:
(a) the Buyer may serve a GPO Start Notice in relation to an Agreed PPDN (or a number
of Agreed PPDNs) at any time within a 12-month period from the Agreed PPDN Date;
(b) in the event that a CPO Start Notice comprises more than 400 Existing Homes, then
the Buyer shall pay for any additional reasonable resource required by the Council in
order to progress the GPO in accordance with the provisions of this Agreement and
such payment shall be treated as CPO Costs for the purposes of the Compulsory
Purchase, Closure Order and Appropriation Scheme Costs and Compensation
Agreement;
(c) the CPO Start Notice will specify the VP Target Date and this may be different to the
Initial Target Vacant Possession Date set out in the Agreed PPDN;
(d) the Buyer may seive a GPO Start Notice in relation to part or all of a Demolition
Phase identified in an Agreed PPDN or a number of Agreed PPDNs save that:
(i) a CPO Start Notice cannot be served in relation to an area over which a CPO
Start Notice has been served already except:
(aa)where paragraphs 5.15.1(b), 5.15.1(c) or 5.15.2 of Part I of Schedule 6
apply;
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(bb)the Buyer has notified the Council in writing that a CPO Start Notice
relating to that area has been withdrawn and no longer has effect;
(cc) if the CPO the subject of the earlier CPO Start Notice is no longer
capable of being implemented; or
(dd)if the CPO the subject of the earlier CPO Start Notice has been the
subject of a successful Challenge,
(ii) if the Parties agree that no CPO is required to secure vacant possession of
the Demolition Phase or any CPO Land within the Demolition Phase then the
Buyer may serve a VP Requirement Notice and the Parties will treat the
service of that VP Requirement Notice as though the Buyer had confirmed
that a Satisfactory CPO existed in relation to that Demolition Phase or the
CPO Land within the Demolition Phase and the provisions of paragraphs 6
and 7 of Part 1 of Schedule 6 will apply; and
(e) where the number of Existing Homes in a CPO Start Notice, when added together
with the number of Existing Homes included within previous GPO Start Notices that
have not yet expired (and a CPO Start Notice shall expire on the date on which the
CPO the subject of the CPO Start Notice has been confirmed or on which the
Secretary of State notifies the Council pursuant to section 14A of the Acquisition of
Land Act 1981 that the Council may confirm the CPO itself), exceeds 200 properties
then the date by which the Councils cabinet will be asked to resolve to make a CPO
in relation to the Existing Homes specified in that CPO Start Notice will be 8 months
and paragraph 5.10.1 of Part I of Schedule 6 and the Time Critical Item Completion
Period (or Date) in item 1 of the table set out at Appendix ito Schedule 6 will be
amended accordingly.
11.7.3 If the Buyer has not done so before the date of service of a CPO Start Notice, the Buyer will
make an application for approval of Reserved Matters or an application for full planning
permission in relation to the Build Phase identified in the Agreed PPDN(s) to which such CPO
Start Notice relates.
11.7.4 In respect of each CPO Start Notice the date specified in the CPO Start Notice as the VP
Target Date shall not be less than 12 months from the date of service of the CPO Start
Notice.
11.8 Following service of the CPO Start Notice
Following service of the CPO Start Notice, the Council shall take all reasonable steps to put
itself in the best position possible to be able to deliver vacant possession of all of the CPO
Land by the VP Target Date and this shall include, but not be limited to, the Council
complying with its obligations set out in Schedule 6.
12 Phase Completion
12.1 Subject to the provisions of clauses 4 and 11 each and every Phase Completion shall take
place in accordance with the provisions of Schedule 5 and the Parties shall comply with their
respective obligations therein.
12.2 At any time prior to the Relevant Phase Completion Date the Buyer shall be entitled to serve
notice in writing upon the Council requesting that the Relevant Phase be transferred direct to
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a Sub-Buyer or a Connected Party and after the receipt of such notice the Council shall
thereafter comply with such notice.
12.3 The Relevant Phase Completion Date shall not be capable of occurring unless and until the
Buyer has granted (or procured the grant of) the Replacement Accommodation Lease to the
Council in accordance with clause 16 for the properties within the Build Phase required to
replace properties within the Demolition Phase.
13 Provision of Replacement Homes
13.1 Delivery of Replacement Homes
13.1.1 The Parties acknowledge that:
(a) nothing in this Agreement puts or may put the Buyer under any obligation to build
Replacement Homes; and
(b) a Demolition Phase cannot be transferred to the Buyer in accordance with
Schedule 5 until:
(i) any requisite Independent Certifiers Habitable Certificate(s) have been
issued in relation to all of the Replacement Homes to be made available by
the Buyer in accordance with the Replacement Homes Proposal set out in
the Agreed PPDN for that Phase; and
(H) the Replacement Accommodation Lease for the relevant Replacement
- Homes has been granted.
13.1.2 To the extent that Replacement Homes may be provided:
(a) unless otherwise agreed between the Parties, they are to be situated on the
Seagrave Road Site until such time as Replacement Homes with a GIA of not less
than 18,405 square metres (198,036 square feet) have been made available to the
Council save that if, at the time the Buyer proposes a Build Phase pursuant to clause
11.2.1, National Grid Electricity Transmission PLC (National Grid) (which currently
has works compounds located on parts of the Seagrave Road Site pursuant to 2
leases both dated 30 March 2012 made between Seagrave Road GP Limited and
Seagrave Road Nominee Limited (1) and National Grid Electricity Transmission PLC
(2) (the National Grid Leases)) has not provided vacant possession of that part of
the Seagrave Road Site (and upon expiry of the National Grid Leases the Buyer shall
use and shall continue to use reasonable endeavours to secure vacant possession of
that part of the Seagrave Road Site occupied by National Grid) then the Replacement
Homes shell be situated:
(i) on the Seagrave Road Site until such time as Replacement Homes with a
GIA of 13,800 square metres (148542 square feet) have been made
available to the Council; and
(ii) thereafter, on the Option Land (but for the avoidance of doubt the Option
Land in this context will not include Gibbs Green School) until such time as
the GIA of the Replacement Homes that have been made available to the
Council on the Option Land when added to the GIA of the Replacement
Homes made available on the Seagrave Road Site, is no less than 18,405
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square metres save that if, prior to the Buyer proposing a Build Phase
pursuant to clause 11 .2.1, National Grid has vacated the Seagrave Road Site
and the National Grid Leases have expired or been terminated then any
remaining Replacement Homes (which the Buyer would have otherwise
located on the Option Land pursuant to this clause 13.1.2 (a)(ii)) shall be
located on the Seagrave Road Site;
(b) thereafter they qre to be situated on the Replacement Homes Redevelopment Area
save where the Buyer, the Council (in its absolute discretion) and the resident
concerned have agreed that a Replacement Home may be provided outside of the
Replacement Homes Redevelopment Area. Where it is agreed that a Replacement
Home can be provided outside the Replacement Homes Redevelopment Area (and
the Councils agreement required pursuant to this clause shall be provided in
accordance with clause 11.2.8) then, where any such alternative location is agreed
after the Agreed PPDN Date for that Phase:
(aa) the provisions of this Agreement shall apply to that Replacement
Home from the date of such agreement as if it was deemed to form
part of the Replacement Home Proposal set out in the Agreed PPDN
for that Phase; and
(bb) the Buyer will not be required to make available the corresponding
Replacement Home that was within the Replacement Homes
Redevelopment Area and which was included in the Replacement
Home Proposal set out in the Agreed PPDN for that Phase in order
to re-house the resident concerned (though the Buyer may agree
otherwise, in its absolute discretion);
(c) for the avoidance of doubt, and unless otherwise agreed between the Parties:
(i) the Buyer shall not be entitled to serve a PPDN on the Council, pursuant to
clause 11.4, identifying an alternative Build Phase that does not comprise
wholly of the Seagrave Road Site until such time as the Buyer has made
available (under any previous Live PPDNs, Live Agreed PPDNs or the PPDN
it is proposing to serve) Replacement Homes:
(aa) on the Seagrave Road Site with a GIA of no less than 18,405 square
metres; or
(bb) if clause 13.1.2 (a)(ii) applied at the time the Buyer commenced the
Phase Setting Process, on the Seagrave Road Site with a GIA of no
less than 13,800 square metres and, thereafter, on the Option Land
until such time as Replacement Homes have been made available to
the Council with a GIA which, when added to the GIA of the
Replacement Homes made available on the Seagrave Road Site, is
no less than 18,405 square metres; and
(H) the Buyer shall not be entitled to serve a VP Requirement Notice on the
Council, pursuant to paragraph 6 of Schedule 6, that identifies a Demolition
Phase where the residents on that Demolition Phase would move into
Replacement Homes that are situated in a location that would mean that the
following requirements are not met until such time as the Independent
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Certifiers Habitable Certificates have been issued in respect of Replacement
Homes:
(aa) on the Seagrave Road Site with a CIA of no less than 18,405 square
metres; or
(bb) if clause 13.1 .2(i)(bb) applied, on the Seagrave Road Site with a CIA
of no less than 13,800 square metres and, thereafter, on the Option
Land until such time as Replacement Homes have been made
available to the Council with a CIA which, when added to the CIA of
the Replacement Homes made available on the Seagrave Road Site,
is no less than 18,405 square metres.
13.1.3 The total number of Replacement Homes that the Buyer may make available shall not exceed
the Schehie Replacement Homes Allowance.
13.1.4 Subject to clause 13.1.9, the total maximum CIA of the Replacement Homes that the Buyer
may be required to provide shall not exceed the Scheme Replacement Homes CIA
Allowance.
13.1.5 The total maximum number of Houses that the Buyer may make available shall not exceed
the Scheme Replacement House Allowance.
13.1.6 The total maximum number of House Equivalent Replacement Homes that the Buyer may
make available shall not exceed the Scheme House Equivalent Replacement Home
Allowance.
13.1.7 The precise number, type and CIA of the Replacement Homes that the Buyer may make
available in relation to each Phase in order to trigger the obligations of the Council in relation
to that Phase shall be determined in accordance with clause 13.2.
13.1.8 The Buyer will keep a running total of the amount of the following allowances that the Council
has used in relation to all Live Agreed PPDN5 agreed during the Phase Setting Process and
(to the extent the Buyer is able to do so, where more than one PPDN has been served) these
running totals will be set out in the PPDNs:
(a) the amount of the Scheme Replacement Homes Allowance;
(b) the amount of the Scheme Replacement Homes CIA Allowance;
(c) the amount of the Scheme Replacement House Allowance;
(d) the amount of the Scheme House Equivalent Replacement Home Allowance;
(e) the amount, if any, of any Shortfall available;
(f) the amount of the Scheme Car Parking Space Allowance; and
(g) the number, if any, of any Outstanding Car Parking Spaces.
13.1.9 When calculating the CIA of the Replacement Homes actually provided for the purposes of
clauses 13.1.4 and 13.1.7, the CIA figure to be used for each Replacement Home provided
shall be calculated in accordance with clause 13.2.
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13.2 Replacement Homes Proposal
13.2.1 Subject to clause 13.2.2 and 13.2.3, the Replacement Homes Proposal for a Phase shall be
calculated as follows:
(a) for the purposes of determining the number of Replacement Homes that may replace
an Existing Home that is:
(i) a Council Owned Residential Unit occupied by a Secure Tenant; or
(H) owned by a Registered Provider and occupied by an Assured Tenant who
has elected, either before or during the Detailed Needs Assessment, to be
rehoused by the Council in the Development;
and for the purposes of determining the number of bedrooms in, and the CIA and
type of, each such Replacement Home, then the following provisions shall apply:
(Hi) the number of Replacement Homes shall equal the number of Existing
Homes within the Relevant Demolition Phase;
(iv) the number of bedrooms in, and the CIA and type of, each Replacement
Home shall meet the Needs of the Secure Tenant or the Assured Tenant and
(if known) any family members lawfully living with them on a permanent basis
and the CIA of each Replacement Home shall be determined by reference to
the table attached at Schedule 24 and shall be the CIA figure that is:
(aa) within the bedroom size banding applicable to the number of
bedrooms that the Replacement Home shall have; and
(bb) where there are sub-bands within this banding, the CIA figure shall
be taken from the sub-band that applies in the light of the number of
family members lawfully living at the Existing Home. For example1 if
the Existing Home is a 2 bedroom flat in which 3 people are residing
lawfully and the Needs of those people are such that the
Replacement Home required is a 2 bedroom flat, then the CIA of the
) Replacement Home will be 61 square metres (being the CIA figure
applicable to the 2 bedroom 3 person sub-band); and
(v) for each Existing Home that is a House the Replacement Home will be either:
(aa) a House (subject to clause 13.2.4(c)); or
(bb) a House Equivalent Replacement Home (subject to clause
13.2.4(d));
(b) for the purposes of determining the number of Replacement Homes that may replace
an Existing Home that is owned by a Qualifying Owner who, as at the PPDN Date,
has entered into a Standard Purchase Contract with the Council and for the purposes
of determining the number of bedrooms in, and the GIA and type of, each such
Replacement Home, then the following provisions shall apply:
(i) the number of Replacement Homes shall equal the number of Existing
Homes within the Relevant Demolition Phase;
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(ii) the relevant Replacement Home shall have the same number of bedrooms
as the relevant Existing Home in the Demolition Phase; and
(Hi) the CIA of such Replacement Rome shall be determined by reference to the
table attached at Schedule 24 and shall be the CIA figure that is:
(aa) within the bedroom size banding applicable to the number of
bedrooms that the Replacement Home shall have; and
(bb) where there are sub-bands within this banding, the CIA figure shall
be taken from the sub-band that contains a CIA figure that is equal
to, or the next immediate figure that is greater than, the CIA of the
Existing Home save where this would mean using a CIA figure that is
within a larger bedroom size banding. In such circumstances, the
CIA figure shall be the CIA figure that is in the top sub-band of the
applicable bedroom size banding even if this is less than the CIA of
the Existing Rome;
For example:
(cc) if the Existing Home is a 3 bedroom single storey flat with a CIA of
78 square metres and the Replacement Home proposed is a 3
bedroom single storey flat, then the relevant banding in the table is
the single storey 3 bedroom banding and the CIA of the
Replacement Home will be 86 square metres. This is because the
CIA of the Existing Home is more than the CIA applicable to a 3
bedroom 4 person sub-band and so the relevant CIA figure to be
applied is the CIA figure allocated to the next sub-band up within the
3 bedroom banding, being the 3 bedroom 5 person sub-band; and
(dd) if the Existing Home is a 2 bedroom house with a CIA of 72 square
metres and the Replacement Home proposed is a 2 bedroom single
storey flat, then the relevant banding in the table is the single storey
2 bedroom banding and the CIA of the Replacement Home will be 70
square metres. This is because, where the CIA of the Existing Home
has a greater CIA than the CIA figure allocated within the top sub-
band of the applicable bedroom size banding set out in the table (in
this example the 2 bedroom banding), the CIA figure to be applied
shall be the ClAfigure allocated to the top sub-band within the 2
bedroom banding; and
(iv) such Replacement Home shall not be either a House or a House Equivalent
Replacement Home;
(c) in the event that there is any Remaining Phase Replacement Homes CIA Allowance
for the Phase, then the Council shall be entitled to request Replacement Homes of
the bedroom size and CIA of its choice save that:
(i) the aggregate CIA of any Replacement Homes requested by the Council
pursuant to this clause 13.2.1(c) shall not exceed the Phase Replacement
Homes CIA Allowance for the Phase;
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(H) the CIA of each Replacement Home requested by the Council must comply
with the table set out in Schedule 24 and be such figure that is within the
bedroom size banding applicable to the number of bedrooms that the Council
has requested and, where there are sub-bands within this banding, the CIA
figure must be one of the figures set out in those sub-bands. For example, if
the Council wishes to request a single storey 2 bedroom Replacement Home,
the Council can only choose a CIA that is allocated to one of the sub-bands
within the 2 bedroom banding (i.e. 52, 61 or 70 square metres) and cannot
choose whatever CIA figure it wishes;
(ill) the Council cannot request Replacement Homes that do not satisfy the
Replacement Home Base Specification;
(iv) the Council cannot request Replacement Homes that are more than 5
bedrooms; and
(v) such Replacement Homes shall not be either a House or a House Equivalent
Replacement Home.
13.2.2 If the Council wish to make a request pursuant to clause 13.2.1(c), the Council shall set out in
the PPDN Response the number of additional Replacement Homes that the Council wishes to
request which shall include a breakdown of the number of bedrooms to be provided in each
Replacement Home and the CIA of each additional Replacement Home.
13.2.3 In relation to the Replacement Homes Proposal set out in the PPDN served by the Buyer
pursuant to clause 11.4, unless otherwise agreed between the Parties, this shall be calculated
as follows:
(a) the number of Replacement Homes shall equal the number of Existing Homes within
the Relevant Demolition Phase;
(b) for the purposes of determining the number of bedrooms in, and the CIA and type of,
each Replacement Home which may replace an Existing Home that is:
(i) a Council Owned Residential Unit occupied by a Secure Tenant; or
(H) owned by a Registered Provider and occupied by an Assured Tenant who
has elected, either before or during the Detailed Needs Assessment, to be
rehoused by the Council in the Development,
then this shall be calculated in accordance with clause 13.2.1(a) save where the
Council has not provided information to the Buyer concerning:
(iH) whether an Assured Tenant has elected to be rehoused by the Council in the
Development; and/or
(iv) the predicted Needs of the Secure Tenants and any Assured Tenants that
have elected to be rehoused by the Council in the Development, including the
number of persons lawfully living in each Existing Home,
when the Replacement Home shall have the same number of bedrooms as the
corresponding Existing Home in the Demolition Phase and the CIA of each
Replacement Home shall be determined in accordance with clause 13.2.1(b)(iii);
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(c) for the purposes of determining the number of bedrooms in, and the GIA and type of,
each Replacement Home which may replace an Existing Home that is:
(I) owned by an Owner: or
(H) owned by a Registered Provider where any Assured Tenant in occupation
has not elected, either before or during the Detailed Needs Assessment, to
be rehoused by the Council in the Development; or
(Hi) a Council Owned Residential Unit that is not occupied by a Secure Tenant,
then the following provisions shall apply:
(iv) the relevant Replacement Home shall have the same number of bedrooms
as the relevant Existing Home in the Demolition Phase; and
(v) the GIA of each Replacement Home shall be calculated in the same way as
set out at clause 13.2.1 (b)(iU).
13.2.4 The calculations in accordance with clauses 13.2.1 and 13.2.2 shall be subject to each and
every of the following overriding limitations:
(a) the number of Replacement Homes that may be made available by the Buyer for a
Phase cannot, when added to the number of Replacement Homes that the Buyer
may make available pursuant to all Live Agreed PPDN5, exceed the Scheme
Replacement Homes Allowance;
(b) the GIA of the ReplacementHomes that may be made available by the Buyer for a
Phase cannot exceed the Phase Replacement Homes GIA Allowance unless this is
as a result of any request by the Council to use any Flex and/or Shortfall in
accordance with clause 13.4;
(c) the number of Houses that may be made available by the Buyer for a Phase cannot
exceed the Phase Replacement House Allowance;
(d) the number of House Equivalent Replacement Homes that may be made available by
the Buyer for a Phase cannot exceed the Phase House Equivalent Replacement
Home Allowance.
13.3 Car parking
13.3.1 The total number of Car Parking Spaces that the Buyer may make available to the Council
shall not be required to exceed the Scheme Car Parking Space Allowance.
13.3.2 The number of Car Parking Spaces that the Buyer shall make avaiiable on each Phase shall
be the Phase Car Parking Space Allowance save in relation to any Phase where some or all
of the Replacement Homes will be made available on the Seagrave Road Site. In such
circumstances, the following provisions shall apply:
(a) irrespective of the number of Replacement Homes that the Buyer may make available
on the Seagrave Road Site, the number of Car Parking Spaces that the Buyer will
make available on the Seagrave Road Site is 70;
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(b) where the Buyer proposes that all of the Replacement Homes that will be made
available for a Build Phase will be located on the Seagrave Road Site then the
number of Car Parking Spaces to be made available on the Seagrave Road Site shall
be:
(i) 70 if this is the first Live PPDN in which the Seagrave Road Site has been
proposed as a Build Phase; or
(N) 0 (zero) if 70 Car Parking Spaces have been made available at the Seagrave
Road Site by the Buyer under any previous Live PPDNs or Live Agreed
PPDNs; and
(c) where the Buyer proposes that some of the Replacement Homes that will be made
available for a Build Phase will be located on the Seagrave Road Site and the
remaining Replacement Homes will be located elsewhere within the Replacement
Homes Redevelopment Area (or such other location as agreed purauant to clause
13.1.2(b)) then, subject to clauses 13.3.2(c) (i) and (ii) below, the total number of Car
Parking Spaces to be made available for the Build Phase shall be the Phase Car
Parking Space Allowance and the number of Car Parking Spaces to be provided
between the Seagrave Road Site and the other site shall be calculated as follows:
(i) if this is the first Live PPDN in which the Seagrave Road Site has been
proposed as a Build Phase,:
(aa) the number of Car Parking Spaces to be provided at the Seagrave
Road Site will be 70; and
(bb) in relation to that part of the Build Phaae which is not located on the
Seagrave Road Site, the number of Car Parking Spaces to be
provided at that other site will be the Phase Car Parking Space
Allowance minus 70 save that if any of these spaces also constitute
Outstanding Car Parking Spaces, the Buyer can, if it wishes to do so,
make available up to 10 of the Outstanding Car Parking Spaces on
the next subsequent Build Phase;
(ii) if 70 Car Parking Spaces have been made available at the Seagrave Road
Site by the Buyer under any previous Live PPDNs or Live Agreed PPDNs:
(aa) the number of Car Parking Spaces to be provided at the Seagrave
Road Site will be 0 (zero); and
(bb) in relation to that part of the Build Phase which is not located on the
Seagrave Road Site, the number of Car Parking Spaces to be
provided at that other site will be the Phase Car Parking Space
Allowance (even if some of the Replacement Homes are provided at
the Seagrave Road Site) save that, if any of these spaces also
constitute Outstanding Car Parking Spaces, the Buyer can, if it
wishes to do so, make available up to 10 of the Outstanding Car
Parking Spaces on the next subsequent Build Phase.
13.3.3 Where there are any Outstanding Car Parking Spaces, the Buyer shall be obliged to make all
of these available on the first Build Phase where the Buyer is proposing to make available
some or all of the Replacement Homes on land that is not within the Seagrave Road Site
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save that, if the Buyer wishes, it can make available up to 10 of the Outstanding Car Parking
Spaces on the next subsequent Build Phase.
13.3.4 By way of example of the operation of clauses 13.3.2 and 13.3.3, if the Car Parking Ratio was
0.6, Phase I comprised 125 Replacement Homes all of which were made available on the
Seagrave Road Site and Phase 2 comprised 150 Replacement Homes where 25 were made
available on the Seagrave Road Site and 125 were made available elsewhere, the number of
Car Parking Spaces that would have been made available on each Phase and in each
location would be as follows:
(a) in relation to Phase 1, the Buyer would have to make available 70 Car Parking
Spaces. This is because, whilst the Phase Car Parking Space Allowance for the
Build Phase is 75(125 x 0.6), the operation of clause 13.3.2 means that the
maximum number of Car Parking Spaces that the Buyer is obliged to make available
is 70;
(b) in relation to Phase 2, the Buyer would not have to make available any Car Parking
Spaces on the Seagrave Road Site and would have had to provide 95 Car Parking
Spaces on the other site identified as part of the Build Phase (or, 85 spaces on the
other site and 10 spaces on the subsequent Build Phase). This is calculated as
follows:
(i) as a result of the operation of clause 13.3.2, the Buyer would not have to
make available any further Car Parking Spaces on the Seagrave Road Site
(as, under Phase I, it had already made available the maximum 70 spaces
required) but would have had to make available 75 Car Parking Spaces on
the other site; and
(ii) in addition, by virtue of the Buyer making available Replacement Homes
outside of the Seagrave Road Site, clause 13.3.3 is triggered. In the
example above, the number of Outstanding Car Parking Spaces will be 20.
This is becauae, in total, 150 Replacement Homes are being made available
on the Seagrave Road Site and (150 x 0.6) 70 is 20. By virtue of clauae
13.3.3, 10 of those 20 Outstanding Car Parking Spaces have to be provided
on Phase 2. The remaining 10 can be provided on the next Phase if the
Buyer wishes to do so and, in the current example, it is assumed that the
Buyer does want to provide the remaining lOon the next Phase.
13.4 Flex and Shortfall
13.4.1 Subject to clauses 13.4.2 to 13.4.5, in the PPDN Response (served in accordance with
clause 11 .6.2), the Council can request:
(a) up to a 10% increase in the Phase Replacement Homes GIA Allowance (Flex);
andior
(b) to use part or all of any of the Shortfall.
13.4.2 The Councils entitlement to request to use any Flex arises only where the total GIA for all of
the Replacement Homes to be made available on a Phase pursuant to clauses 13.2.1(a) and
13.2.1(b) exceeds the Phase Replacement Homes GIA Allowance for that Phase and the
amount of any Flex requested by the Council shall be limited to the lesser of the amount that
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the Council requires in order to accommodate such excess and 10% of the Phase
Replacement Homes CIA Allowance.
13.4.3 The Councils entitlement to request to use any Shortfall shall cease once the number of
Replacement Homes the subject of (the total of) all Live PPDNs, Live Agreed PPDNs or
Replacement Accommodation Leases has reached the Scheme Replacement Homes
Allowance (notwithstanding that the Scheme Replacement Homes CIA Allowance has not
been reached).
13.4.4 The Councils entitlement to request to use any Flex and/or Shortfall is subject to any Flex
and/or Shortfall requested not exceeding the Scheme Replacement Homes CIA Allowance
when such Flex and/or Shortfall is added to:
(a) the CIA of the Replacement Homes that the Buyer may make available pursuant to
all Live Agreed PPDNs (including any Flex and Shortfall used in relation to those Live
Agreed PPDNs); and
(b) the CIA of the Replacement Homes that the Buyer may make available under the
PPDN for the Phase in relation to which the Council has requested to use any Flex
and/or Shortfall.
13.4.5 Where the Council validly exercises any Flex or Shortfall in accordance with clauses 13.4.1 to
13.4.4, then:
(a) the Council cannot request more or less Houses than that to which it is entitled
pursuant to the Phase Replacement House Allowance;
(b) the Council cannot request more or less House Equivalent Replacement Homes than
that to which it is entitled pursuant to the Phase House Equivalent Replacement
Homes Allowance;
(c) the Council shall be entitled to request Replacement Homes of the bedroom size and
CIA of its choice save that:
(i) the CIA requested by the Council must comply with the table set out in
Schedule 24 and be such figure that is within the bedroom size banding
applicable to the number of bedrooms that the Council has requested and,
where there are sub-bands within this banding, the GIA figure must be one of
the figures set out in those sub-bands. For example, if the Council wishes to
request a single storey 2 bedroom Replacement Home, the Council can only
choose a GIA that is allocated to one of the sub-bands within the 2 bedroom
banding (i.e. 52, 61 or 70 square metres) and cannot choose whatever CIA
figure it wishes;
(U) the Council cannot request Replacement Homes that do not satisfy the
Replacement Home Base Specification; and
(iN) the Council cannot request Replacement Homes that are more than 5
bedrooms;
(iv) such Replacement Homes shall not be either a House or a House Equivalent
Replacement Home;
(d) the Council shall set out in the PPDN Response:
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(i) in relation to any request to Flex, the number of additional Replacement
Homes that the Council wishes to request, which shall include a breakdown
of the number of bedrooms to be provided in each Replacement Home and
the GIA of each additional Replacement Home requested by the Council;
(ii) in relation to any request to use the Shortfall, the number of additional
Replacement Homes that the Council wishes to request, which shall include
a breakdown of the number of bedrooms to be provided in each Replacement
Home, the GIA of each additional Replacement Homes requested by the
Council and the amount of any Shortfall remaining following such request.
Any remaining Shortfall can be carried forward to be used by the Council on
future Phases in accordance with the provisions of this clause 13.4.
13.5 Home Allocation Plans
13.5.1 The Parties acknowledge that:
(a) it is intended that the Home Allocation Plan will be used by the Parties and/or the
Project Delivery Group, for each Phase, to:
Ci) allocate Replacement Accommodation to the Council in relation to that
Phase;
(ii) allocate the Car Parking Spaces and any Outstanding Car Park Spaces in
relation to that Phase; and
(Ui) record the Integral Adaptations and Replacement Home Package that are to
be installed in the Replacement Accommodation; and
(b) the Home Allocation Plan may be subject to change by reason of construction delays
or other matters and the Buyer confirms it shall use its reasonable endeavours to
minimise changes to the Home Allocation Plan and to agree any changes with the
Council (including any changes to the information provided by the Council pursuant to
clause 13.5.5).
13.5.2 Within 10 Working Days of the date on which the Buyer confirms to the Council that a CPO is
an Approved GPO in relation to the Relevant Demolition Phase, the Buyer shall provide to the
Council the Home Allocation Plan for the corresponding Build Phase. At the same time, the
Buyer shall confirm to the Council the choices for the Replacement Home Package that are to
be offered for the relevant Build Phase.
13.5.3 The Home Allocation Plan shall comply with the Replacement Homes Proposal, any Flex
exercised and/or any Shortfall used by the Council pursuant to the Agreed PPDN for that
Phase.
13.5.4 When drawing up the Home Allocation Plan, the Buyer shall have regard to its obligations
pursuant to clause 14 to seek to make available Replacement Homes as part of Preferred
Replacement Accommodation.
13.5.5 No later than 6 months after the date on which the Buyer provides the Home Allocation Plan
to the Council pursuant to clause 13.5.2, the Council shall return the Home Allocation Plan to
the Buyer confirming, in relation to each Replacement Home and each Car Parking Space
(including each Outstanding Car Parking Space):
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(a) whether the Council intends to:
(i) allocate it to a Qualifying Owner living in an Existing Home on the Relevant
Demolition Phase and who is entitled to a Replacement Home under a
subsisting Standard Purchase Contract (or such other relevant purchase
contract); or
() allocate it to a Secure Tenant, or an Assured Tenant who has elected to be
rehoused by the Council on the Development, living in an Existing Home on
the Relevant Demolition Phase; or
(iii) allocate it to a Qualifying Owner (who is entitled to a Replacement Home
under a subsisting Standard Purchase Contract or such other relevant
purchase contract), a Secure Tenant, or an Assured Tenant who has elected
to be rehoused by the Council on the Development, who is living in an
Existing Home on the Option Land but outside the Relevant Demolition
Phase; or
(iv) leave it vacant initially because all residents living in Existing Homes on the
Demolition Phase who need to be rehoused have been allocated a
Replacement Home and, at the time that the Council returns the Home
Allocation Plan to the Buyer, the Council has not identified a resident who is
living in an Existing Home that is on the Option Land but which is outside of
the Relevant Demolition Phase and who can be rehoused into that
Replacement Home;
(b) the Replacement Home Package for each Replacement Home; and
(c) whether the installation of Adaptations is required and, if so, the nature of such
Adaptations together with a copy of all Adaptation Assessment Reports relating to the
Adaptations required.
13.5.6 The Buyer acknowledges that the allocation of Replacement Homes and Car Parking Spaces
in any Build Phase (including the allocation of Outstanding Car Parking Spaces) under clause
13.5.5 is at the Councils discretion, in accordance with its lawful policies from time to time.
This is subject to the requirement that:
(a) the Council can only use Replacement Homes to relocate residents from their
Existing Homes on the Relevant Demolition Phase unless all such residents have
been relocated, in which case the Council can use any surplus Replacement Homes
to relocate residents from Existing Homes on the Option Land. For the avoidance of
doubt, the Council shall not use any surplus Replacement Homes to house residents
who do not live on the Option Land until all residents have been relocated from
Existing Homes on the Option Land; and
(b) the Council shall prioritise the allocation of such Car Parking Spaces to those
residents who would be entitled to claim compensation from the Council if a
Replacement Home was allocated to them without a right to use a Car Parking Space
(it being acknowledged that, notwithstanding this priority, the allocation might still
result in some residents being entitled to compensation).
13.5.7 If a Replacement Home is left vacant pursuant to clause 13.5.5(a)(iv) and, subsequently, the
Council allocates that vacant Replacement Home to a Qualifying Owner (who is entitled to a
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Replacement Home under a subsisting Standard Purchase Contract or such other relevant
purchase contract), a Secure Tenant, or an Assured Tenant who has elected to be rehoused
by the Council on the Development, who is living in an Existing Home that is on the Option
Land but which is outside of the Relevant Demolition Phase then:
(a) the Council shall notify the Buyer of such allocation within 10 Working Days of making
the allocation. For the avoidance of doubt, the Council shall not be entitled, in
relation to that Replacement Home, to vary the Replacement Home Package and/or
any Adaptations requested that either the Council notified to the Buyer when
returning the Home Allocation Plan or the Buyer determined pursuant to clause
13.5.8;
(b) the Council shall either grant a lease of the Existing Home, or transfer the Existing
Home, to the Buyer (or a company nominated by the Buyer) pursuant to, and in
accordance with, the provisions of Schedule 9.
13.5.8 If the Council fails to confirm to the Buyer, in accordance with clause 13.5.5 its choices in
relation to any part or all of the Replacement Homes Package for a Replacement Home, the
Council shsll lose the right to make any such choice and all outstanding choices shall be
made by the Buyer (in its absolute discretion) save that the Buyer agrees to use neutral
colours for any decoration.
13.5.9 Where necessary to do so by virtue of the Estimated Habitable Date for the relevant Build
Phase, the Council and the Buyer (both acting reasonably) may agree in writing to reduce the
timescales under this clause 13.5 for that relevant Build Phase.
13.6 Replacement Home Base Specification
13.6.1 The Buyer shall procure that any Replacement Homes constructed meet the Replacement
Home Base Specification.
13.6.2 In the event that any of the design and construction standards comprised in the definition of
the Replacement Home Base Specification are varied, replaced, substituted or cease to
exist then to the extent required in order to avoid any material diminution in the standard of
design and construction of the Replacement Homes the Council and the Buyer shall
endeavour to agree such variation, replacement or substitution of the relevant standard )
provided that any varied, replaced or substituted standard shall:
(a) be recognised as an industry standard for accommodation of the nature and type of
the Replacement Accommodation; and
(b) not materially increase the cost of the construction of the Replacement Homes or
materially affect the Buyers ability to carry out and complete the Development.
13.6.3 In default of agreement in connection with the matters in clause 13.5.2 either Party may refer
the matter to an Expert for determination pursuant to clause 40.4.
13.7 Independent Certifier
13.7.1 The Parties acknowledge that Independent Certifier(s) will be appointed for the purposes of
confirming when a Replacement Home is Habitable.
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13.7.2 The Independent Certifier(s) shall be appointed by the Buyer (at the cost of the Buyer) on
terms which are consistent with the Independent Certifier Approved Terms so far as these are
reasonably obtainable in the market at the relevant time.
13.7.3 The Buyer shall not appoint the Independent Certifier on terms that are not consistent with the
Independent Certifier Approved Terms without the prior approval of the Council, such
approval not to be unreasonably withheld, and any dispute as to whether such approval may
be referred by the Buyer for determination by an Expert in accordance with clause 40.
13.8 Certification
13.8.1 It is anticipated that:
(a) in the case of Replacement Homes which form part of Preferred Replacement
Accommodation, there shall be a single Independent Certifiers Habitable Certificate
relating to the entirety of each Relevant Accommodation and/or, if required where
such a single certificate would not be sufficient for one or more Replacement Homes
under the terms of the relevant Purchase Contract, there shall be an Independent
Certifiers Habitable Certificate for each such Replacement Home; and
(b) in the case of Replacement Homes that do not form part of Preferred Replacement
Accommodation, there shall be a single Independent Certifiers Habitable Certificate
for each Replacement Home. -
13.8.2 Subject to compliance with all statutory health and safety procedures and site rules and
regulations, upon reasonable notice the Independent Certifier shall be entitled to such access
to the places where Replacement Homes are being constructed from time to time as is
reasonably required to view the construction of the Replacement Homes and ascertain if they
are being constructed to meet the Replacement Home Base Specification and otherwise to
perform his obligations referred to in this Agreement.
13.8.3 If, following any such viewing, the Independent Certifier is not satisfied that a Replacement
Home is being constructed to meet the Replacement Home Base Specification or otherwise
so as to be Habitable, he will notify the Parties. The Parties shall have regard to any such
comments but, for the avoidance of doubt, no such comments shall prevent or otherwise
) restrict the issue of a certificate of practical completion or the like under any relevant
construction contract.
13.8.4 In addition, the Buyer shall provide the Independent Certifier not less than 5 Working Days
notice of the date on which the Buyer considers (as appropriate) Replacement
Accommodation or a Replacement Home or Replacement Homes will be Habitable. No later
than 5 Working Days after receipt of such notice from the Buyer the Independent Certifier
shall inspect the relevant Replacement Accommodation or Replacement Home or
Replacement Homes, provided that if the Independent Certifier is required to inspect more
than 10 Replacement Homes at any one time following notification from the Buyer under this
clause 13.8.4 the Independent Certifier shall be entitled to an additional 2 Working Days to
inspect per each such additional 10 Replacement Homes. The Independent Certifier will
notify the Parties in advance of the date upon which the Independent Certifier will undertake
each such additional inspection. No later than 2 Working Days following each inspection:
(a) if the Independent Certifier is satisfied that any Replacement Accommodation or
Replacement Home(s) so inspected is Habitable, he shall issue an Independent
Certifiers Habitable Certificate to the Buyer with a copy to the Council; and
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(b) if the Independent Certifier is not satisfied that any Replacement Accommodation or
Replacement Home(s) so inspected is Habitable, he will issue an Independent
Certifiers Non Habitable Certificate, together with a full and comprehensive list of all
actins and works needed before the relevant Replacement Accommodation or
Replacement Home(s) will be Habitable.
13.8.5 In the event the Independent Certifier gives notice under clause 13.8.4(b), then the
procedures in this clause 13.8 shall be repeated until such time as the Independent Certifier
shall issue the Independent Certifiers Habitable Certificate of the relevant Replacement
Accommodation or Replacement Home.
13.8.6 An Independent Certifiers Habitable Certificate cannot be revoked [or any reason once
issued. The Independent Certifiers Habitable Certificate shall be final and binding on the
Parties for the purposes of this Agreement, save in the case of manifest error or fraud.
13.9 Collateral warranty
13.9.1 Save where the Council has no responsibility under a Replacement Accommodation Lease
for the repair and maintenance of the structural parts of the Replacement Accommodation
whether directly or through a contribution to a service charge then the Buyer shall procure
that the building contractor (where such contractor has contracted to undertake a
comprehensive design and build obligation in respect to such Replacement Accommodation)
or otherwise the contractors and architect, structural engineer and mechanical and electrical
engineer (and any other consultant carrying out a significant element of design in respect of
such Replacement Accommodation, as reasonably requested by the Council) appointed by
the Buyer who have undertaken such a construction or design role in respect to such
Replacement Accommodation) enter into a warranty substantially in the applicable form set
out in Schedule 23 (subject to such amendments as the Council, acting reasonably, may
agree) warranting the design and/or construction (as applicable) of such Replacement
Accommodation, provided that where the Replacement Accommodation comprises less than
an entire building or self-contained part thereof the Buyer shall procure that the landlord under
the relevant Replacement Accommodation Lease has the benefit of equivalent warranties and
undertakes to exhaust its remedies to recover from the relevant contractor or consultant
under these warranties in priority to charging expenditure under the service charge.
13.9.2 Any dispute as to (a) the required form of collateral warranty or (b) the entities from whom a
collateral warranty is needed or (c) whether the Buyer shall have used reasonable
endeavours to procure any required collateral warranties pursuant to clause 13.9 may be
referred by either Party to an Expert for determination pursuant to clause 40.4.
13.10 Passing of risk and insurance
13.10.1 The risk in any Replacement Homes passes to the Council on completion of the relevant
Replacement Accommodation Lease.
13.10.2 If, between the date of the Independent Certifiers Habitable Certificate and completion of a
Replacement Accommodation Lease any of the Replacement Homes to be demised by the
Replacement Accommodation Lease are damaged or destroyed so that they are no longer
Habitable:
(a) the Independent Certifiers Habitable Certificate will be deemed void; and
(b) the provisions of clause 13.8 shall apply mutatis mutandis.
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14 Grouping of Replacement Homes and Preferred Replacement Accommodation
14.1 Where reasonably prabticable, and having regard to the requirements of clause 13.5, the
Buyer shall, to the extent it makes available Replacement Homes in accordance with the
provisions of this Agreement, seek to deliver such homes as partof Preferred Replacement
Accommodation provided that
14.1.1 the costs of the Development are not materially increased in consequence or the value of the
Buyers interest in the Development is not materially adversely affected as a result; and
14.1.2 such proposals are permitted by planning requirements.
14.2 It is acknowledged by the Parties that it is unlikely that all Replacement Homes will be
capable of being provided in Preferred Replacement Accommodation.
14.3 In relation to each Phase the Buyer shall, during the pre PPDN process set out in clause 11.2
and with each PPDN indicate to the Council what Preferred Replacement Accommodation the
Buyer proposes to provide in relation to that Phase.
14.4 The exterior of any Preferred Replacement Accommodation may be constructed to such
standard and appearance as the Buyer may decide (consistent with planning and building
regulations) in order to match and/or maintain the value of the open market units on the
Development.
15 Not Used
16 Form of Replacement Accommodation Lease and completion
16.1 The Council and the Buyer acknowledge that the form or forms of Replacement
Accommodation Lease(s) for each Build Phase shall be finalised in accordance with the
mechanism set out in this clause 16 and that the form of each Replacement Accommodation
Lease shall be based on the draft lease at Schedule S (Base Lease).
16.2 The Parties acknowledge that the form of each Replacement Accommodation Lease may
differ from building to building and Phase to Phase to cater for site-specific or estate
management issues, including (without limitation):
16.2.1 the location, nature and extent of the demised premises and the common parts;
16.2.2 whether the Replacement Home is within Preferred Replacement Accommodation or not;
16.2.3 the service charge regime and repair and decoration obligations;
16.2.4 the rights granted and reserved;
16.2.5 changes in law or market practice relevant to a lease of this type at the time of grant; and
16.2.6 a headlease out of which such lease is to be granted (including where appropriate) the
provision of direct covenants from the Council (such direct covenants to be on such terms as
shall be approved by the Council, such approval not to be unreasonably withheld) to any
superior landlord (and vice versa) and by way of example only the Council may accept,
subject and without prejudice to the remaining provisions of this clause 16.2.6, changes to the
Base Lease to incorporate provisions such as:
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a covenant made by the tenant not to do anything which would constitute a breach of the
tenants covenants and conditions in the headlease;
a proviso that the lease is granted subject to the powers, rights and discretions reserved
to the superior landlord to the extent required under the headlease;
a proviso that if the tenant does or proposes to do any matter or thing for which the
consent of the superior landlord is required, the tenant shall bear and indemnify
the landlord against the cost of obtaining such consent and all incidental professional
fees and disbursements;
a proviso that the landlord may, notwithstanding any provision to the contrary elsewhere
in the tease, withhold consent or approval in any matter where the superior landlords
consent or approval is required, the landlord (having used its reasonable endeavours) is
unable to obtain it;
a proviso that the managing agents may act agents of the landlord to inspect, negotiate
and agree alt sums which the landlord may from time to time be called upon to pay to
any superior landlord under any of the provisions of the headlease.
Provided always that the Council shall not be required to:
(a) accept provisions or obligations pursuant to any such headlease which are materially
more onerous than those set out in the Base Lease; or
(b) accept amendments to provisions or obligations that benefit the Council that
materially reduce the benefit from those set out in the Base Lease,
unless disclosed prior to the date of this Agreement or are otherwise agreed by the Council
and it is agreed that amendments that have a negative effect on the valuation of the Councils
interest in the Replacement Accommodation Lease will be regarded as material;
16.2.7 where the Replacement Home is a House the Landlord will not be responsible for
maintenance or repairs for any part of the House but the service charge for the estate (as
referred to in the Service Charge Strategy) will apply.
16.3 The Parties acknowledge that:
16.3.1 the Buyer can require that:
(a) a management company is a party to a Replacement Accommodation Lease, in
which case the management company shall covenant directly to provide any relevant
buildings or estate services, instead of the Buyer; or
(b) if no management company is made a party from the outset, the Buyer shall be
entitled to nominate a management company in the future to manage the building
and/or estate, to provide the services and to collect the service charge;
16.3.2 the preferred position of the Parties is that the Council will be granted:
(a) a Replacement Accommodation Lease of each Relevant Accommodation; and
(b) a Replacement Accommodation Lease of each single unit that cannot form part of
Preferred Replacement Accommodation; and
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16.3.3 each Replacement Accommodation Lease shall contain service charge provisions that reflect
the Service Charge Strategy and such provisions shall entitle the landlord to vary or reduce
the services to be provided to the Relacement Accommodation from time to time having
particular regard to any service charge cap from time to time in place, in the interests of good
estate management, provided that the landlord shall not be entitled to vary or reduce the
services to be provided to the Replacement Accommodation to an extent that would prevent
the occupying tenants enjoying beneficial occupation of the Replacement Accommodation or,
in respect of the repair and maintenance of the structures of the Replacement
Accommodation or the common parts serving them or where to do so would be a breach of
good estate management obligations.
16.4 The initial principal annual rent for each Replacement Accommodation Lease shall be
calculated on the following basis: 250 x the number of Replacement Homes comprised in
the Replacement Accommodation Lease. The Parties acknowledge that the Council shall be
entitled to propose an appropriate allocation as between categories or unit provided that the
overall payment remains the same.
16.5 Any rent, service charge, insurance rent or other sums payable pursuant to the Replacement
Accommodation Lease shall be payable for the period from the Replacement Accommodation
Completion Date on the date on which the relevant Replacement Accommodation Lease is
granted. Principal annual rent will be payable annually in advance, service charge will be
payable quarterly in advance on an estimated basis with an annual reconciliation and
insurance premiums and other charges will be payable upon demand when due.
16.6 The term of each Replacement Accommodation Lease shall commence from and including
either:
16.6.1 the date of grant of the Replacement Accommodation Lease; or
16.6.2 the date of grant of the first Replacement Accommodation Lease granted in respect of the
relevant Build Phase, -
as the Buyer shall elect in its absolute discretion (or, in the absence of such elections shall be
the date of grant of that lease).
16.7 No later than 14 months before the Estimated Habitable Date for the Build Phase (and where
there is more than one Estimated Habitable Date for the Replacement Accommodation within
a Build Phase, then no later than 14 months before the Estimated Habitable Date due to
occur first), the Buyer shall:
16.7.1 issue a draft Replacement Accommodation Lease or Leases for the relevant Build Phase,
each based on the Base Lease incorporating such amendments or additions to the form of
Base Lease as the Buyer reasonably proposes having regard to the premises to be demised
thereunder including (but not limited to) the building and part of the estate in which such
premises are located, the Car Parking Spaces and Outstanding Car Parking Spaces that are
to be included in the premises to be demised thereunder, the service charge provisions, the
principal layout of the relevant premises, and any other matters which the Buyer reasonably
considers to be relevant to the demise and all such amendments or additions shall be subject
to agreement by the Council (such agreement not to be unreasonably withheld). Such draft
lease shall also provide for all such temporary and permanent rights and easements, together
with any other covenants or conditions which are required to enable the beneficial use and
occupation of the relevant premises to be demised by the Replacement Accommodation
Lease and to enable the development of the remainder of the Build Phase and/or the
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Development and its continued use and/or the management of the landlords adjoining land,
estate and/or building and catering for such other variations to the Base Lease as is required
to meet the terms agreed in settlement of the PPDN as provided in clause 11 and as may be
required in accordance with this clause 16; and
16.7.2 provide the lease, building and estate plan(s) (if any) to be appended to each draft
Replacement Accommodation Lease showing any colours or markings to be referred to by
reference to a plan in the relevant lease (if any) and ensure that any plans are Land Registry
compliant and sufficient to enable the Council to be registered as the proprietor at the Land
Registry,
together the Lease Pack.
16.8 The Council shall within 10 Working Days after receipt of the Lease Pack give written notice
to the Buyer either:
16.8.1 accepting the plan(s) and the draft Replacement Accommodation Lease(s) for the relevant
Build Phase contained in the Lease Pack (the Acceptance Notice); or
16.8.2 rejecting one or more of the plan(s) and/or the draft Replacement Accommodation Lease(s)
and specifying in detail the Councils reasons for such rejection (and, in the case of the
rejection of one or more of the draft Replacement Accommodation Lease(s), returning an
amended draft) (the Amendment Notice); and
16.8.3 where the Council has failed to serve an Acceptance Notice or an Amendment Notice within
such 10 Working Days period then the plan(s) and the draft Replacement Accommodation
Lease(s) for the relevant Build Phase contained in the Lease Pack shall be treated as the
agreed form of plan(s) and Replacement Accommodation Lease(s) for the relevant Build
Phase for the purposes of this Agreement.
16.9 Where the Council serves a valid Amendment Notice, the Council and the Buyer shall use all
reasonable endeavours to agree the form of Replacement Accommodation Lease(s)
(including the plan(s) to be appended) as soon as reasonably practicable but in any event
within 10 Working Days of the date of service of the Amendment Notice. If agreement has
not been reached within this time frame, then either Party can refer the matter to be
determined by reference to clause 40.4. The Expert shall be required to determine the matter
in question within 10 Working Days of this appointment.
16.10 Upon the Expert determining the plan(s) and/or the form of Replacement Accommodation
Lease(s), then these shall be treated as the agreed form of plan(s) and Replacement
Accommodation Lease(s) for the relevant Build Phase for the purposes of this Agreement and
ancillary documents.
16.11 The provisions of Schedule 11 shall apply to the grant of each Replacement Accommodation
Lease and the Parties shall observe and perform their respective obligations therein.
16.12 The Parties acknowledge that it is not intended that the obligations in this Agreement or the
Compulsory Purchase, Closure Order and Appropriation Scheme Costs and Compensation
Agreement shall be binding on any entity by reason of that entitys capacity as land owner of
any interest in the reversion to any completed Replacement Accommodation Lease but for
the avoidance of doubt this proviso shall not extend to the Buyer or the Buyers successor as
a party to this Agreement.
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17 Form and completion of the Replacement Home Underlease
17.1 The form of Replacement Home Underlease to be g(anted from the Council to the Qualifying
Owner under a Standard Purchase Contract shall:
17.1.1 where the Qualifying Owner shall not be granted the entire equity in the Replacement Home,
be in the form of the HCA model shared ownership lease from time to time (including: (a) an
ability for the Qualifying Owner to staircase; and (b) no obligation for the Qualifying Owner to
pay rent in respect of the equity share that it does not own) with such variations as are
required to comply with the Councils then current policies or in such alternative form as shall
then comply with such policies;
17.1.2 where the Qualifying Owner shall be granted the entire equity in the Replacement Home, be
in a form to be specified by the Council (without negotiation) and the Council shall use
reasonable endeavours to ensure that such form of Replacement Home Underlease is in a
mortgageable form;
17.1.3 be for a term of: (a) in the case of freehold owners of Existing Homes, 995 years; and (b) in
the case of leasehold owners of Existing Homes, 150 years;
17.1.4 reserve ground rent of no more than 250 per annum, fixed for the first 25 years and
thereafter subject to review every 25 years to reflect changes in the RPI;
17.1.5 incorporates service charge provisions which are consistent with the service charge
provisions in the Replacement Accommodation Lease and the Service Charge Strategy
(including a service charge cap where indicated in such Service Charge Strategy); and
17.1.6 be consistent with the terms of the Replacement Accommodation Lease produced in
accordance with the provisions of clause 16.
17.2 The Council shall issue a copy of the relevant Replacement Home Underlease with the Home
Election Notice, in accordance with its obligation to do so under the Standard Purchase
Contract.
18 Early Purchase Contract
18.1 The Parties acknowledge that the Early Purchase Contract is to be made available on the
basis set out in this clause 18 and Schedule 2.
18.2 Subject to clause 18.3, the Buyers obligations under paragraphs 2.1, 2.4 and 3.1 of Part 2 of
Schedule 2 shall apply from and including the date of this Agreement until the earlier of:
18.2.1 the Standard Purchase Contract Trigger Date; and
18.2.2 Termination or Expiry of this Agreement.
18.3 The Buyer shall not be obliged to enter into any Early Purchase Contract if the aggregate of:
(a) the purchase price payable under all Early Purchase Contracts exchanged; and
(b) all other relevant Allowable Capital Expenditure incurred in respect of such Early
Purchase Contracts,
exceeds the Early Purchase Contract Financial Cap.
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18.4 The final form of each Early Purchase Contract and the consideration payable under each
Early Purchase Contract shall be determined in accordance with the provisions set out in
Schedule 2.
18.5 The Parties shall each observe and perform their respective obligations in relation to the Early
Purchase Contract as set out in Schedule 2.
18.6 The Council shall be entitled to enter into one or more Early Purchase Contracts instead of
notifying the Buyer under paragraph 1.2 of Part 2 of Schedule 2 (and in which case the
Buyers obligations under Part 2 of Schedule 2 shall not apply).
19 Standard Purchase Contract
19.1 The Parties acknowledge that the Standard Purchase Contract is to be made available to
Qualifying Owners in accordance with this clause 19 and Schedule 2.
19.2 The Parties shall each observe and perform their respective obligations in Schedule 2 in
relation to the Standard Purchase Contract.
19.3 The final form of each Standard Purchase Contract and the consideration payable under each
Standard Purchase Contract shall be determined in accordance with the provisions of
Schedule 2.
19.4 The Buyers obligations pursuant to paragraphs 4.1.2, Sand 6 of PartS of Schedule 2 shall
not apply:
19.4.1 in respect of Standard Purchase Contracts entered into during the period from the Standard
Purchase Contract Trigger Date until the Trigger Date, where the aggregate Allowable Capital
Expenditure (in respect of both Standard Purchase Contracts and Advance Existing Purchase
Contracts) exceeds the Standard Purchase Contract Contribution Cap; or
19.4.2 in respect of Standard Purchase Contracts entered into either:
(a) before the Standard Purchase Contract Trigger Date; or
(b) after the Purchase Contract Offer Period has expired,
unless the Buyer has confirmed in writing to the Council that the Council should enter into the
Standard Purchase Contract;
19.4.3 (save for paragraph 3.4 of Part 3 of Schedule 2 which shall apply in this case) after
Termination or Expiry of this Agreement; and
19.4.4 (save for paragraph 6 of Part 3 of Schedule 2 which shall apply in this case) where a
Replacement Accommodation Lease is granted at the relevant completion date (in which
case, the Council is liable for any moneys payable to the relevant Owner).
20 Advance Existing Purchase Contract
20.1 The Parties acknowledge that the Advance Existing Purchase Contract is to be made
available to:
(a) Non-Qualifying Owners;
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(b) Non-Resident Owners; and
(c) Qualifying Owners (who are not already under contract to sell their Existing Home),
in accordance with this clause 20 and Schedule 2 (and that the form of such contract will
differ depending on the relevant category).
20.2 The Parties shall each comply with their respective obligations in Schedule 2 in relation to the
Advance Existing Purchase Contract.
20.3 The final form of each Advance Existing Purchase Contract and the consideration payable
under each Advance Existing Purchase Contract shall be determined in accordance with the
provisions of Schedule 2.
20.4 The Buyers obligations pursuant to paragraphs 4.1.2, 5 and 6 of Part 3 of Schedule 2 shall
not apply:
20.4.1 in relation to Advance Existing Purchase Contracts entered into during the period from the
Standard Purchase Contract Trigger Date until the Trigger Date, where the aggregate
Allowable Capital Expenditure (in respect of both Standard Purchase Contracts and Advance
Existing Purchase Contracts) exceeds the Standard Purchase Contract Contribution Cap; and
20.4.2 in relation to Advance Existing Purchase Contracts entered into either:
(a) before the Standard Purchase Contract Trigger Date; or
(b) after the Purchase Contract Offer Period has expired,
unless the Buyer has confirmed in writing to the Council that the Council should enter into the
Advance Existing Purchase Contract; and
20.4.3 after Termination or Expiry of this Agreement. -
21 Voluntary Advance Purchase Contract
The Parties shall each comply with their respective obligations in Schedule 2 in relation to the
Voluntary Advance Purchase Contract.
22 Secure Tenant Contract
The Parties shall each comply with their respective obligations in Schedule 2 in relation to the
Secure Tenant Contract.
23 Existing Registered Providers
23.1 The Buyer shall (without charge) provide such information and assistance as the Council shall
reasonably request to facilitate negotiation with Registered Providers in order to seek to agree
terms for the delivery of vacant possession of Existing Homes owned or occupied by
Registered Providers.
23.2 The Council shall offer each of the Assured Tenants the opportunity to become a Council
tenant and offer the benefits of the Secure Tenant Contract to such Assured Tenants in a
form adapted to reflect the status of the Assured Tenants, their existing tenancy and
relationship with the relevant registered provider and to dovetail with the respective
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obligations of the Parties, as set out in the report prepared for the Councils Cabinet meeting
of 3 September 2012.
24 Panels and Independent Representative
24.1 Panel Advisors
24.1.1 The Parties acknowledge that the Panel Dispute Valuers, Panel Solicitors and Panel Valuers
will be appointed in accordance with the provisions of Schedule 2.
24.2 Independent Representative
24.2.1 Within 20 Working Days of the first CPO Trigger Date the Council will appoint a person or
body independent of the Council and of residents (the Independent Representative) on the
following basis:
24.2.2 the Independent Representative will be a Fellow of the RICS or similar appropriately qualified
person with experience of rehousing tenants and occupiers and will have at least 10 years
experience of dealing with housing relocation and renewal schemes and a thorough
understanding of the Housing Act 1985;
24.2.3 the Independent Representative will be experienced in negotiating, rehousing, allocations and
in securing possession orders for a local authority;
24.2.4 the Independent Representative shall be appointed by the Council but the Buyer will be
consulted at the meeting of the Project Delivery Group on all candidates for appointment:
24.2.5 the costs of the Independent Representative will be borne by the Council;
24.2.6 residents affected by a proposed or confirmed CPD will be able to make representations to
the Independent Representative;
24.2.7 the Independent Representative will:
(a) advise the Council if the making, service or enforcement of a GVD or notice to treat
(as the case may be) will impact negatively on the personal circumstances of any
resident; and
(b) suggest how the Council can make, serve or enforce a GVD or notice to treat (as the
case may be) in a way which will impact less severely on the personal circumstances
of that individual which suggestions could include:
(i) altering the order in which GVD or notices to treat are made, served or
enforced;
(fl) providing the individual concerned with a different type of accommodation
(permanent or temporary); and
(Hi) providing the individual concerned with assistance with moving,
but the remit of the Independent Representative will not include determining the CPO
Implementation Programme or influencing the Initial Target Vacant Possession Date, the VP
Target Date or the VP Date.
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24.2.8 Both the Council and the Buyer will use reasonable endeavours to provide information to the
Independent Representative to enable him or her to carry out their role but there will be no
obligation on any Party to give information which is commercially or otherwise confidential.
25 Not used
26 Vacant Possession Condition
26.1 The Council shall diligently and expeditiously use all powers available to it to satisfy the
Vacant Possession Condition prior to the VP Date.
26.2 The Council will comply with its obligations as set out in the Compulsory Purchase, Closure
Order and Appropriation Scheme Costs and Compensation Agreement as required in order to
secure satisfaction of the Vacant Possession Condition.
26.3 The Council and the Buyer will observe and perform their respective obligations in
Schedule 6.
26.4 Prior to the Termination of this Agreement the financial liability of the Council for any delay for
failure to satisfy the Vacant Possession Condition shall be limited to the LADS payable in
accordance with Schedule 6 and in the event of Termination any liability for damages shall
only be payable in accordance with paragraph 7 of Schedule 16.
26.5 Nothing in this clause 26 shall limit any other remedy of the Buyer against the Council
(including without limitation specific performance or similar remedy) for failure to comply with
its obligations in this Agreement and in particular (without limitation) any liability to pay
liquidated damages and/or (following Termination) damages at large pursuant to Schedule 6
but without prejudice to any express limitations on payment of such liabilities contained in the
said Schedule or clause 39.
27 Overage
The Council and the Buyer each agree to pay the Overage (if any) payable in accordance
with the provisions set out in Schedule 10 subject in the case of Overage payable by the
Buyer to the aggregate amounts payable not exceeding the Buyers Overage Cap
28 Mitigation of adverse impact on cessation of works
28.1 If, following completion of a Phase Transfer:
28.1.1 the Buyer or a party related to or under the control of the Buyer or a successor in title to the
Buyer (directly or indirectly) or a party which has contracted to acquire or has otherwise
agreed to acquire (from the Buyer or its successor in title of whole or part) an interest in the
whole or part of the such Phase Transfer Land shall have materially commenced:
(a) demolition and/or works on the relevant Phase Transfer Land; and
(b) such works are subsequently suspended or cease to be carried out on such land; and
the appearance of the land following such suspension or cessation of such works has a
material adverse impact on the ability of the residents of any part of the Option Land not
transferred to the Buyer to beneficially use and occupy such part of the Option Land not
transferred to the Buyer (Adverse Amenity Impact); or
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28.1.2 the Buyer or a party related to or under the control of the Buyer or a successor in title to the
Buyer (directly or indirectly) ora party which has contracted to acquire or has otherwise
agreed to acquire (from the Buyer or its successor in title of whole or part) an interest in the
whole or part of the such Phase Transfer Land shall have:
(a) materially commenced demolition work on the relevant Phase Transfer Land such as
to result in partly demolished buildings; or
(b) materially commenced site preparation on the relevant Phase Transfer Land so as to
create significant excavations; or
(c) materially commenced construction on the relevant Phase Transfer Land so as to
create partly finished structures above ground level; and
(d) such works as described in clauses 28.1.2(a) to (c) are subsequently suspended or
ceased; and
28.1.3 such cessation or termination of works referred tO in clauses 28.1.1 and 28.1.2 has continued
(in all material respects) for more than 6 calendar months;
28.1.4 then the Council may (unless development shall have resumed) serve notice on the Buyer
and any Project Funder (Temporary Amelioration Works Notice) requiring the Buyer:
(a) in a case where demolition work has commenced to complete such demolition work,
clear the site and remove all equipment and debris;
(b) in a case where material excavations have been undertaken to cover and make safe
the excavation, clear the site and remove all equipment and debris;
(c) in a case where construction has commenced so as to create a partly finished
structure or structures to either (at the election of the Buyer) (a) to complete the
structure and external shell of such structure or (b) to demolish the same to ground
level and remove the resulting debris; and
(d) in a case where an Adverse Amenity Impact subsists to carry out such works on the
relevant Phase Transfer Land as the Council reasonably require to overcome such
Adverse Amenity Impact,
any works required under this clause 28.1.4 being defined as Temporary
Amelioration Works.
28.2 Following the service of any Temporary Amelioration Works Notice the Parties shall
endeavour to agree the Temporary Amelioration Works and in default of agreement either
Party may refer the matter to an Expert for determination under clause 40.
28.3 If within 3 months from the date on which the Temporary Amelioration Works have been
agreed or determined by the Expert as required under clause 28.2 (Temporary
Amelioration Works Period) the Buyer shall not have recommenced the development of
the relevant Phase Transfer Land then the Buyer shall if so required by the Council in writing
immediately commence and thereafter diligently progress and complete the Temporary
Amelioration works so agreed or determined within such period as may be reasonable having
regard to the nature of the works (such period to be not less than 3 months) unless and until
the Buyer shall in fact have recommended (and continues to diligently progress) the
development of the relevant Phase Transfer Land.
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28.4 Where the Buyer is required to carry out Temporary Amelioration Works under clause 28.3, in
the event that the Temporary Amelioration Works have not been completed within the
relevant time period specified in clause 28.3 (as agreed or determined by the Expert (as the
case may be pursuant to clause 28.5)) or development has not been recommenced and
diligently implemented (as provided in clause 28.3) then the Buyer shall if so required by the
Council grant to the Council licence to enter upon the relevant Phase Transfer Land to
undertake auch works and the Buyer shall reimburse to the Council the reasonable and
proper costs incurred by the Council in carrying out such works subject to clause 28.5.
28.5 If a Project Funder elects and undertakes by notice on the Council to procure the carrying out
of the Temporary Amelioration Works (such notice to be served prior to the grant of such
licence to the Council) the Councils right to undertake such works shall be suspended for so
long as and Provided That such Project Funder commences and thereafter diligently
proceeds to undertake such Temporary Amelioration Works within a reasonable period
(having regard to the nature of the required works) provided that if the development of the
Phase Transfer Land actually recommences the Councils right to undertake the Temporary
Amelioration Works shall terminate (but without prejudice to the following provisions of this
clause 28.5) provided that if such development is recommenced but thereafter ceases or is
suspended and such cessation or suspension continues for a period of more than 6 months
and the conditions required for the service of a Temporary Amelioration Works Notice under
clause 28.1 apply the Council shall have the right to serve a further notice under clause 28.1
(Second TAW Notice) whereupon the provisions of clauses 28.2 to 28.4 (inclusive) shall
apply (mutatis mutandis).
28.6 Any dispute as to:
28.6.1 whether the Council shall be or have been entitled to serve a Temporary Amelioration Works
Notice or Second TAW Notice; or
28.6.2 whether the Council shall have become entitled to undertake any Temporary Amelioration
Works,
shall be determined in default of agreement by an Expert pursuant to clause 40.
28.7 The provisions of this clause 28 shall cease to have effect in relation to each respective
Phase Transfer Land on the earlier of (a) completion of the first development on the Phase
Transfer Land and (b) 5 years from Expiry or earlier Termination of this Agreement.
29 Title
The Council (as landowner) will as soon as reasonably practicable after written request from
the Buyer deduce title to such parts of the Option Land as (a) may be affected by any
proposed Planning Agreement to the local planning authority or other relevant authority to the
extent required by such authority in connection with any such Planning Agreement or (b) as
the Buyer may wish to include in a pre PPDN (as so confirmed to the Council in writing) and
shall provide reasonable assistance in answering (i) any enquiries as to such title that the
local planning authority or relevant authority may raise either directly or indirectly and (ii) all
reasonable enquiries raised by the Buyer.
30 Access for surveys and further information
30.1 Subject to clause 30.2 and the prior consent of the Council (such consent not to be
unreasonably withheld or delayed), from the date of this Agreement the Buyer its agents,
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contractors, surveyors, engineers, architects and other professional advisers and licensees
shall be entitled (with or without vehicles, plant or equipment) upon the giving of not less than
one months notice to enter and remain upon the Option Land as licensee for the purpose of:
30.1.1 carrying out surveys or investigations including (without limitation) surveys or investigations in
connection with:
(a) sub-soil, groundwater and geotechnical conditions;
(b) the degree and extent of any contamination;
(c) habitats and ecology;
(d) archaeological remains;
(e) levels and measurements;
(f) the condition of the Option Land; and
(g) preparing an environmental impact assessment or other studies; and/or
30.1.2 any other reasonable purpose,
provided that the Buyer its agents, contractors, surveyors, engineers, architects and other
professional advisers and licensees shall in carrying out and completing such surveys or
investigations do so as expeditiously as possible, taking reasonable measures to minimise
any interference and inconvenience to the Councils tenants on the Option Land and making
good any damage caused to the Option Land.
30.2 The grant of the licence pursuant to clause 30.1:
30.2.1 does not extend to such parts of the Option Land that comprise Existing Homes or common
parts (to the extent such access would interfere with the proper use of such common parts) of
occupied buildings;
30.2.2 is subject to the terms of any Secure Tenancy of the Option Land affected by the proposed
surveys or investigations permitting the same and to any relevant provisions of any such
Secure Tenancy of which the Buyer has had prior written notice.
30.3 Subject to the prior consent of the Council (such consent not to be unreasonably withheld or
delayed), from the date of this Agreement the Buyer its agents, surveyors, engineers,
architects and other professional advisers and licensees shall be entitled (with or without
vehicles, plant or equipment) upon the giving of not less than one months notice to enter and
remain upon Gibbs Green School as licensee for the purposes set out in clauses 30.1.1
(though clause 30,1.1 (f) shall be read to state Gibbs Green School instead of Option Land)
and 30.1.2 provided that the Buyer its agents, surveyors, engineers, architects and other
professional advisers and licensees shall in carrying out and completing such surveys or
investigations do so as expeditiously as possible, taking reasonable measures to minimise
any interference and inconvenience to the Councils tenants on the Option Land and taking
reasonable measures to minimise any interference with the Councils use thereof as a school
including doing such surveys or investigations outside of school hours and also making good
any physical damage caused to Gibbs Green School so far as such damage would interfere
with the use thereof as a school having regard to the period for which the Council may remain
in occupation pursuant to this Agreement.
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30.4 If at any time during this Agreement the Buyer shall have any queries with regard to matters
revealed by the surveys or investigations carried out pursuant to clause 30.1 or 30.3 or any
matters concerning the Existing Homes or Gibbs Green School then the Council shall use
reasonable endeavours to provide as full replies as reasonably practicable and as
expeditiously as reasonably practicable to the enquiries and requisitions that the Buyer may
from time to time reasonably raise.
31 Snagging matters
The Council shall ensure that the Buyer, its workmen, agents, surveyors, contractors and
whomsoever the Buyer shall reasonably require shall have access to the Replacement
Homes for the purpose of completing any Snagging Items or other works that may be
required to comply with the terms of this Agreement and/or any obligations pursuant to a
Replacement Home Building Guarantee, warranty provided under clause 13.9 and/or in
compliance with the conditions imposed (if any) by the grant of any planning permission or
consent provided that such entry and works are carried out at reasonable times and on
reasonable prior written notice and with all reasonable expediency.
32 Considerate constructors scheme
32.1 In respect of any part of the Development that is adjacent to or neighbouring to any parts of
the Option Land that are occupied by residential occupiers the Buyer shall comply with an
applicable nationally recognised scheme endorsed or accepted by a relevant construction
industry body intended to promote good practice with regard to minimising the adverse impact
of the works on such persons.
32.2 Where the Buyer has failed to comply with its obligations in clause 32.1 and, as a direct
consequence, the Council has paid compensation to an Owner and/or Secure Tenant
pursuant to its Considerate Constructors Compensation Policy (as referred at paragraph
4.2.7, Part 1 of Schedule 2) then the Buyer shall reimburse such compensation as may
reasonably be paid by the Council within 20 Working Days of demand PROVIDED THAT the
total aggregate amount that the Buyer may be liable to pay pursuant to this clause 32 shall
not exceed the Constructors Compensation Cap.
33 Copyright and licence to use documents
So far as the Buyer shall be able (using reasonable endeavours) to secure such licence from
the relevant owner of the copyright therein the Buyer shall grant to the Council an irrevocable
perpetual royalty-free non-exclusive licence to use and reproduce all designs, drawings, plans
and specifications prepared by or on behalf of the Buyer in respect of the Replacement
Homes insofar as the Council reasonably needs such designs, drawings, plans and
specifications to produce the Replacement Home Underlease and manage the Replacement
Homes.
34 Access and copies
The Buyer agrees:
34.1 on request by the Council (but once only) within 12 months of the date of completion of a
Replacement Accommodation Lease to give the Council one set of as built drawings in
relation to the relevant accommodation comprised within the Replacement Accommodation
Lease; and
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34.2 to provide the Council (but only once) with a set of all such materials (including but not limited
to copies on computer readable and modifiable discs) relating to the relevant Replacement
Home within 3 months of each Replacement Accommodation Lease being granted.
35 Notices
35.1 A notice to be served under or pursuant to this Agreement shall be validly served if the
provisions hereinafter contained are complied with in respect of such notice or alternatively
the Party to whom such notice is addressed or its authorised agent acknowledges receipt in
writing.
35.2 Any notice to be served under or pursuant to this Agreement may be served in any of the
following manners:
35.2.1 by personal delivery (in which case service shall be deemed to have been effected at the time
of delivery); or
35.2.2 by prepaid first class or special delivery or recorded delivery post from any address in the
United Kingdom (in which case service shall be deemed to have been effected at the
expiration of 2 Working Days from the time of posting).
35.3 In proving service of any notice it shall be sufficient to prove that personal delivery was made
or that the envelope containing such notice was properly addressed and delivered into the
custody of the postal authorities as a prepaid first class or special delivery or recorded
delivery post.
35.4 If the Party to whom any notice to be served under or pursuant to this Agreement shall consist
of more than one person the service upon one of such persons shall be service upon all of
them.
35.5 Any notice addressed to a Party by name shall not be rendered invalid by reason of the Party
having died become Insolvent or changed name whether or not the Party serving the notice is
aware of the fact.
35.6 The address to which there shall be sent or delivered any notice to be served upon any Party
to this Agreement under or pursuant to this Agreement shall be the address or registered H)
office of such Party as stated at the commencement of this Agreement or as otherwise
notified either to the Party serving the notice (or on whose behalf the notice is served) the
notification to have been given by notice in writing served in accordance with the provisions of
this clause 35 prior to the service of the notice first referred to in this clause 35.6.
35.7 Any notice required to be served or which may be served by a Party may be given on that
Partys behalf by that Partys solicitors.
35.8 Where any notice is to be served upon the Buyer under or pursuant to this Agreement such
notice and any envelope containing such notice shall be marked For the Urgent Attention of
The Investment Director and a duplicate shall be served on the Guarantor and marked For
the Urgent Attention of The Finance Director or (in each case) such other person as shall
have been notified to the Council by notice in writing served in accordance with this clause 35
as the person to whose attention any such notice should be drawn. Any such notification of
another person shall be required to have been given to the Council by notice in writing served
in accordance with this clause 35 and to have been given prior to the service of the notice first
referred to in this clause 35.8.
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35.9 Where any notice is to be served upon the Council under or pursuant to this Agreement such
nolice and any envelope containing such notice shall be marked For the Urgent Attention of
the Director of Legal Services with a copy to the The Executive Director of Finance and
Governance and The Executive Director of Housing and Regeneration or in each case
such other person as shall have been notified by notice in writing served in accordance with
this clause 35 as the person to whose attention any such notice should be drawn. Any such
notification of another person shall be required to have been given to the Buyer and to have
been given by notice in writing served in accordance with this clause 35 prior to the service of
the notice first referred to in this clause 35.9.
35.10 The foregoing provisions of this clause 35 shall in addition to the service of notices also apply
(mutatis mutandis) to the delivery of documents unless otherwise agreed in writing.
36 VAT
36.1 Standard Condition 1.4 does not apply to this Agreement.
36.2 Any consideration paid or given for taxable supplies of goods or services under or in
connection with this Agreement is to be treated as exclusive of VAT. The recipient of any
such supply is, in addition to the consideration for the supply, to pay to the supplier an amount
equal to any VAT which is chargeable in respect of the supply in question on the later of:
36.2.1 the day on which the consideration for the supply is paid or given; and
36.2.2 production of a proper VAT invoice.
36.3 If VAT is charged where it properly ought not to have been, the Party who is the recipient of
that VAT (the recipient) is on demand to pay an amount equal to such VAT and is to issue
to the Party who paid that VAT an appropriate credit note.
36.4 The Council warrants to the Buyer that neither the Council nor any relevant associate of the
Council (or any relevant group member in relation to the Council) has exercised the option to
tax Gibbs Green School, Farm Lane or the Option Land and that such option shall not be so
exercised.
37 Interest and payments
If any Party fails to pay any moneys due to the other(s) within 15 Working Days after the date
upon which the same shall fall due under this Agreement then whether before or after any
Court judgment the paying Party shall pay the payee interest thereon at the Prescribed Rate
calculated on a daily basis from the date such moneys became due until the date upon which
the payee shall receive the same.
38 Project Delivery Group
38.1 Establishment
As soon as reasonably practicable and no later than I month following the date of this
Agreement the Council and the Buyer will set up the Project Delivery Group on the following
basis.
38.2 Functions
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38.2.1 The functions of the Project Delivery Group will be to act as a co-operation body between the
Council and the Buyer and to monitor and assist with progress on achievement by the Council
and the Buyer of their respective obligations under this Agreement.
38.2.2 The Council and the Buyer may agree in writing additional roles or functions for the Project
Delivery Group.
38.3 Representatives and meetings
38.3.1 The Project Delivery Group will consist of 3 representatives of each of the Council and the
Buyer.
38.3.2 The Council and the Buyer:
(a) will seek to ensure the Project Delivery Group meets monthly or more frequently
when specifically required under the terms of this Agreement or by mutual
agreement;
(b) will notify each other of the names of their respective representatives (and any
changes);
(c) will ensure that their named representatives attend meetings of the Project Delivery
Group (or that substitutes, named in advance and properly briefed, attend in their
place): and
(d) will furnish the Project Delivery Group with such information in relation to the
Development as that group may reasonably request; and
(e) will each bear their own costs in attending the Project Delivery Group (but the Buyer
will provide any secretariat needed for the Project Delivery Group).
38.3.3 The Project Delivery Group will be entitled where it has been agreed by the Project Delivery
Group beforehand to invite non-members (including third parties) to its meetings.
38.4 Matters
38.4.1 Matters on which the Project Delivery Group, or any sub-group formed by the Parties, will as
applicable advise or assist include:
(a) all aspects of the operation of this Agreement;
(b) progress towards achieving the objectives of this Agreement;
(c) the appointments of the Panel Advisors, the land referencers, the Selected Agent and
the Independent Representative;
(d) liaison and engagement with the residents during the scheme;
(e) the Needs (including any assessment of Needs and updates on the Needs);
(f) the Rehousing Report and the Phase Rehousing Report;
(g) the Phase Impact Assessment and Phase Impact Strategy;
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(h) the service and, where possible, agreement of a PPDN;
(i) reviewing the documents prepared by the Council for submission to the Councils
cabinet for a resolution to make a CPO and directing whether any further steps are
required to be undertaken by either Party, the identity of Counsel to be used to advise
on the documents, considering Counsels advice and directing whether any further
steps are required to be undertaken by either Party;
(j) all CPOs and any Appropriation andfor Appropriation Scheme and the CPO
Implementation Programme (and it is agreed that the Buyer will, so far as practicable,
give the Council as much advance notice as possible of its intention to ask the
Council to make a CPO in respect of any Third Party Interest falling within paragraph
(c) of the definition of CPQ);
(k) the service of a CPO Start Notice, CPO Suspension Notice or CPO Restart Notice
and VP Requirement Notice where no CPO is required pursuant to clause
11 .7.2(d)(ii);
(I) the specific location of the Replacement Homes within the Build Phase;
(m) the administration of and matters pertaining to the Purchase Contracts (including,
without limitation, the service of the Home Election Notice);
(n) the Replacement Home Package to apply to Replacement Homes where the Secure
Tenant or the Qualifying Owner has not responded with choices;
(o) any Adaptations required in Replacement Homes;
(p) each VP Requirement Notice;
(q) the rehousing process including the phased rehousing of residents, including the
agreement of the Home Allocation Plan;
(r) the Estimated Habitable Date(s) for Replacement Homes in the relevant Build Phase;
(s) construction aspects of the scheme;
(t) Blight Notice procedures;
Cu) any Inquiry or Inquiries into objections to a CPO or Closure Order;
(v) obtaining statutory or other consents required for the relevant portion of the
Development;
(w) resources;
(x) the production and dissemination of reports and other information pursuant to and in
accordance with the provisions of this Agreement; and
(y) securing vacant possession of Third Party Interests in accordance with a VP
Requirement Notice; and
(z) health and safety information.
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38.4.2 It is intended that a standard agenda will be agreed at the first meeting of the Project Delivery
Group which shall contain standing items in relation to kay aspects of the process.
38.4.3 It is intended also that, at the first meeting of the Project Delivery Group, the methods by
which the Parties will liaise and engage with the residents, and the timetable within which the
Parties will do this, throughout the process, will be agreed.
38.4.4 In relation to the service of a Home Election Notice it is intended that:
(a) when the Buyer starts considering whether or not to notify the Council to serve a
Home Election Notice in relation to a relevant Demolition Phase, it notifies the Project
Delivery Group of this and raises the possible service of a Home Election Notice at
the next Project Delivery Group meeting;
(b) the Buyer shall alert the Council, through the Project Delivery Group, of its proposal
to direct the Council to serve a Home Election Notice at least 3 months before the
actual direction to serve the Home Election Notice;
(a) once the potential service of a Home Election Notice has been raised, this issue
becomes a standing item on the standard agenda at all subsequent Project Delivery
Group meetings until either the Buyer directs the Council to serve a Home Election
Notice in relation to the relevant Demolition Phase or the Buyer confirms that it no
longer wishes to direct the Council to serve a Home Election Notice; and
(d) the issues concerning the service of the Home Election Notice that would be
discussed at the Project Delivery Group meetings will include (but are not limited to):
(i) the valuations of the Existing Homes and the Replacement Homes;
(H) the proposed Estimated Habitable Date(s);
(iB) the proposed Replacement Home Long Stop Date; and
(iv) the Home Allocation Plan.
38.4.5 In relation to the service of a VP Requirement Notice, it is intended that:
(a) when the Buyer starts considering whether or not to serve a VP Requirement Notice
in relation to a proposed Demolition Phase, it notifies the Project Delivery Group of
this and raises the possible service of a VP Requirement Notice at the next Project
Delivery Group meeting;
(b) in most cases, the Buyer anticipates that, it would be able to alert the Council to its
proposal to serve a VP Requirement Notice at least 6 months before the actual
service of the VP Requirement Notice;
(c) once the potential service of a VP Requirement Notice has been raised, this issue
becomes a standard item on the agenda at all subsequent Project Delivery Group
meetings until either the VP Requirement Notice is served or the Buyer confirms that
it no longer wishes to serve a VP Requirement Notice in relation to the Demolition
Phase proposed;
(d) the issues concerning the service of the VP Requirement Notice that would be
discussed at the Project Delivery Group meetings include (but are not limited to):
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(i) the proposed final VP Date;
(ii) the proposed Estimated Habitable Date for each Replacement Home;
(iii) the rehousing process including the phased rehousing of residents; and
(iv) whilst it is intended that the discussions concerning the proposed service of a
VP Requirement Notice in relation to a proposed Demolition Phase will result
in the agreement of the matters to be specified in a VP Requirement Notice,
the Buyer will be at liberty to serve a VP Requirement Notice in relation to a
proposed Demolition Phase without such agreement having been reached
subject to the provisions of clause 26.
39 Damages
39.1 Until the Expiry or earlier Termination of this Agreement (and save as provided in clause 39.2
below) the Council shall not be required to discharge any damages in respect of any breach
of this Agreement save for the payment of the LADS as provided in Schedule 6 which shall be
capped to the sum set out in paragraph 3.2 of Part 2 of Schedule 6
39.2 Until the Expiry or earlier Termination of this Agreement the liability of the Council for
damages in respect to any breach of the terms of clauses 2.1 to 2.11 inclusive shall not be
limited as provided in clause 39.1 but the liability of the Council to discharge any such
damages before the Expiry or Termination of this Agreement shall (when aggregated with any
other damages payable under clause 39.1) be capped to the sum set out in paragraph 3.2 of
Part 2 of Schedule 6.
39.3 After this Agreement Expires or Terminates there shall be no cap on the liability of the Council
to discharge any accrued LADS or other damages for any breach of this Agreement by the
Council but the Council shall only be obliged to discharge such LADS or damages in
accordance with the provisions of paragraph 7 of Schedule 16.
39.4 The foregoing provisions shall be without prejudice to any other remedy the Buyer may have
other than the payment of damages.
40 Disputes
40.1 Expedited dispute resolution
In relation to any dispute or difference arising between the Parties in connection with any
provision of thia Agreement relating to:
40.1.1 the Phase Setting Process, Phasing Programme or Phase Completion;
40.1.2 the satisfaction of any condition contained in this Agreement;
40.1.3 the issue of an Independent Certifiers Habitable Certificate;
40.1.4 the provisions of Schedule 1;
40.1.5 any matters on which the Project Delivery Group and/or the CPO sub-group advise or assist
and/or determine pursuant to Schedule 6;
40.1.6 any dispute as to whether a CPO is an Approved CPO and/or a Satisfactory CPO;
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40.1.7 any dispute as to whether a Closure Order is an Approved Closure Order; or
40.1.8 any other matter that is specifically referred to dispute resolution pursuant to clause 40.4,
such dispute of difference shall be referred to and be settled by an Expert pursuant to and in
accordance with clause 40.4.
40.2 Senior dialogue
40.2.1 In relation to any dispute or difference arising between the Parties in connection with any
other provision of this Agreement either the Council or the Buyer may invoke the dispute
resolution mechanism set out in clause 40.2.2 (the Senior Dialogue Mechanism) prior to
seeking any other remedy.
40.2.2 The Senior Dialogue Mechanism shall operate as follows:
(a) for the purposes of this clause 40.2.2 the Parties shall be represented by the
following individuals (First Tier Officers):
(i) for the Buyer : The Chief Executive, The Investment Director or the Finance
Director or such equivalent posts; and
(ii) for the Council: The Chief Executive of the Council, The Director of Legal
Services, The Executive Director of Finance and Governance or The
Executive Director of Houaing and Regeneration or such equivalent posts or
such other senior officers as the Council shall appoint;
(b) where either Party (acting reasonably) considers that the other has failed to perform
any of its obligations contained in this Agreement or considers any dispute or
difference between the Parties to have arisen or likely to arise between the Parties it
shall give written notice of the same to the other Party;
(c) the First Tier Officers shall use reasonable endeavours to resolve such difference or
dispute in a mutually acceptable manner within 10 Working Days of a notice under
clause 40.2.2(b) provided that it is acknowledged that the First Tier Officer acting on
behalf of the Council will only be permitted to act in accordance with his or her
delegated authorities and may have to refer matters back to the Council.
40.3 Not Used
40.4 Referral to Expert
40.4.1 Any dispute or difference between the Parties in connection with:
(a) any provision of this Agreement set out in clause 40.1; or
(b) which is not settled pursuant to clause 40.2.2; or
(c) which is expressly referable under this clause 40.4,
will be referred to and settled by an independent expert (the Expert) whose decision in
relation to such matters shall be final and binding upon the Parties except in the case of fraud
or manifest error.
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40.4.2 The following provisions shall apply with regard to the selection of the Expert:
(a) if the dispute relates to:
(i) the rights and liabilities of the Parties; or
(ii) the terms or conditions to be embodied in any deed or document,
it will be referred to a barrister of not less than 10 years experience in large-scale
mixed-use regeneration projects agreed upon by the Parties but in default of
agreement appointed at the request of either of the Parties by or on behalf of the
Chairman for the time being of the General Council of the Bar or his duly appointed
deputy or other person authorised to make appointments on his behalf;
(b) without prejudice to clause 40.4.2(a), if the dispute relates to the conveyancing terms
or mechanisms to be embodied in any one of the Purchase Contracts it will be
referred to a practising solicitor of not less than 10 years experience in large-scale
housing regeneration and projects agreed upon by the Parties but in default of
agreementappointed at the request of either of the Parties by or on behalf of the
Chairman for the time being of the Law Society of England and Wales or his duly
appointed deputy or other person authorised to make appointments on his behalf;
(c) if the dispute relates to the independent Certifiers Habitable Certificate it will be
referred to a Member of the Royal Institution of Chartered Surveyors agreed upon by
the Parties but in default of agreement appointed at the request of either of the
Parties by or on behalf of the President for the time being of the Royal Institution of
Chartered Surveyors or his duly appointed deputy or other person authorised to make
appointments on his behalf;
(d) if the dispute relates to methods of accounting or otherwise to matters usually and
properly within the knowledge of a chartered accountant it will be referred to a
chartered accountant agreed upon by the Parties but in default of agreement
appointed at the request of any of the Parties by or on behalf of the President for the
time being of the Institute of Chartered Accountants in England and Wales or his duly
appointed deputy or other person authorised to make appointments on his behalf;
(e) if the dispute relates to matters usually and properly within the knowledge of a
chartered surveyor (including, but not limited to, residential valuations and whether a
PPDN complies with the PPDN Criteria and/or the Replacement Home Criteria and/or
the Phase Impact Assessment) it will be referred to an independent chartered
surveyor agreed upon by the Parties but in default of agreement appointed at the
request of the Parties by or on behalf of the President for the lime being of the Royal
Institution of Chartered Surveyors or his duly appointed deputy or other person
authorised to make appointments on his behalf;
(f) if the Parties fail to agree as to the nature of the dispute then it shall be referred to a
barrister (as described in clause 40.4.2(a)) agreed upon by them but in default of
agreement appointed at the request of either of the Parties by or on behalf of the
Chairman for the time being of the General Council of the Bar or his duly appointed
deputy or other person authorised to make appointments on his behalf to decide the
nature of the Expert;
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(g) the Expert acts as an expert and not an arbitrator and the provisions of the Arbitration
Act 1996 shall not apply to the Expert, his decision or the procedure by which he
reaches his decision;
(h) the Party wishing to appoint the Expert will give notice in writing to that effect to the
other Party together with details of the matter which he wishes to refer to the Expert
and such 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;
(i) if the matter is not resolved between the Parties within 5 Working Days of the
notification pursuant to clause 40.4.2(h), either Party may then refer the matter to the
Expert;
the Expert will allow the Parties to make written representations and written counter-
representations to him within 5 Working Days of the date of his appointment but will
not be in any way fettered by such representations and counter-representations and
will rely on his own judgment (and such period cannot be extended without the
consent of the Parties);
(k) the Parties will give to the Expert such assistance as the Expert considers necessary
to carry out his function including providing the Expert with all documentation and
information that he requires in order to determine the dispute;
(I) the Expert will give notice in writing of his decision to the Parties within 10 Working
Days of his appointment or within such extended period as the Parties may both
agree in writing; and
(m) the costs of the reference to the Expert will be borne as he directs and failing any
such direction will be shared equally between the Parties.
40.4.3 If the Expert (the Original Expert):
(a) fails to determine the matter referred to him;
(b) fails to give notice of his decision within the time and in the manner provided for in
this clause 40.4;
(c) relinquishes or does not accept his appointment;
(d) dies; or
(e) it becomes apparent for any reason that he is unable to complete the duties of his
appointment,
either of the Parties may in accordance with this clause 40.4 apply for a substitute to be
appointed (but not after the Expert has given notice of his decision to the Parties in dispute).
In such event the Expert is no longer the expert and the provisions of this clause 40.4 apply
as if the Expert had not been appointed and will be repeated as many times as necessary.
41 Default, Termination and run off
41.1 Termination means in relation to this Agreement that an entitlement has arisen for either
Party to serve a notice to determine or terminate this Agreement and such notice has been
16
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properly served and with effect from the expiry of such notice the Buyer shall cease to be
entitled (or required) thereafter to do any of the following:
(a) serve the Trigger Notice;
(b) serve any further PPDNs;
(c) serve any further CPO Start Notices;
(d) enter into any further Early Purchase Contracts;
(e) incur any further Allowable Capital Expenditure, save as provided for in the
Compulsory Purchase, Closure Order and Appropriation Scheme Costs and
Compensation Agreement and exercise its rights under clause 30;
(f) require the Council to deduce title under clause 29 save where the Buyer already has
the right to a transfer which remains to be completed; and
(g) require the Council to:
(i) enter into any further Purchase Contracts; or
(ii) progress any CPO Implementation Programme (other than for the purposes
of paragraph 5.2.40) of SchedUle 16 (Run-Off Notices),
in accordance with this Agreement other than as required to comply with paragraph 5.3 of
Schedule 16
and Terminate, Terminated and Termination shall be construed accordingly.
41.2 Where this Agreement has been Terminated or has Expired save for the matters which the
Buyer is no longer entitled (or may be required) to do as set out in the definition of
Termination above, the provisions of this Agreement shall continue to apply for so long as
anything remains to be done hereunder in order to achieve the provisions of paragraphs 5, 7
and 8 of Schedule 16 and any other provision in this Agreement (or any agreement which is
supplemental to this Agreement) which is expressed to survive the Expiry or Termination of
this (or other such) Agreement.
42 Alienation
42.1 No dealings other than the permitted dealings
This Agreement is personal to the Buyer and the Buyer shall not assign charge deposit by
way of security dispose mortgage underlet or otherwise deal with transfer or part with its
interest under this Agreement or any part thereof save in accordance with this clause 42.
42.2 Permitted dealing
The Buyer may:
42.2.1 mortgage or charge or assign by way of security the benefit of this Agreement to a Project
Funder details of whom have been notified to the Council;
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42.2.2 assign the benefit of this Agreement to a Connected Party setup as a single purpose vehicle
for the purposes of undertaking the whole or part of the Development but following such
assignment the Buyer and the Guarantor shall continue to be liable in respect of their -
obligations under this Agreement;
42.2.3 assign the benefit of this Agreement to a third party other than a Connected Party (but not a
Prohibited Transferee unless such Prohibited Transferee shall have been approved by the
Council) provided the Buyer can demonstrate that the third party can procure and credibly
manage and co-ordinate the technical expertise and experience to carry out the Development
but following such assignment the Buyer and Guarantor shall continue to be liable in respect
of their obligations under this Agreement;
42.2.4 assign the benefit of this Agreement to a third party (who may but need not be a Connected
Party but without prejudice to the right to assign to a Connected Party pursuant to clause
42.2.2 or to some other third party pursuant to clause 42.2.3 where the Buyer and Guarantor
shall continue to be liable in respect of their obligations under this Agreement) who:
(a) satisfies the Financial Test; and
(b) can demonstrate that it has or can procure and credibly manage and co-ordinate the
technical expertise and experience to carry out the Development,
PROVIDED THAT:
(i) any proposed third party assignee delivers to the Council a deed in a form
approved by the Council (such approval not to be unreasonably withheld or
delayed) containing a covenant by the third party assignee to comply with the
obligations of the Buyer in this Agreement as from the date of such
assignment;
(ii) where required in order to satisfy the Financial Test the proposed assignee
procures (aa) a suitable guarantor approved by the Council (such approval
not to be unreasonably withheld or delayed where the Financial Test is met)
who covenants by deed in a form approved by the Council (such approval not
to be unreasonably withheld or delayed) to comply with the Guarantors
covenants ii, clause 43 as from the date of such assignment and/or (bb) the
provision of such other security arrangements as may be necessary to satisfy
the Financial Test and which shall be approved by the Council (such approval
not to be unreasonably withheld or delayed);
(iii) the Buyer may not assign the benefit of this Agreement to a Prohibited
Transferee unless such Prohibited Transferee has been previously approved
in writing by the Council; and
(iv) the Buyer and the Guarantor shall as from the date of such assignment be
released from any future liability under this Agreement but without prejudice
to any antecedent liability that may have accrued prior to such assignment
which the Buyer and the Guarantor shall remain liable for;
42.2.5 novate this Agreement on terms whereby the Buyer and the Guarantor shall be released from
all further liability under this Agreement (whether accrued or antecedent or not) to a third party
(who may but need not to be a Connected Party but without prejudice of the rights of the
Buyer to assign to a Connected Party pursuant to clause 42.2.2 or to some other third party
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pursuant to clause 42.2,3 where the Buyer and Guarantor shall continue to be liable in
respect of their obligations under this Agreement) who:
(a) satisfies the Financial Test; and
(b) can demonstrate that it has or can procure and credibly manage and co-ordinate the
technical expertise and experience to carry out the Development, -
PROVIDED THAT:
(i) any proposed novation shall be effected by deed in a form of the approved by
the Council (such approval not to be unreasonably withheld or delayed)
containing a covenant by the third party to comply with the obligations of the
Buyer in this Agreement;
(ii) where required in order to satisfy the Financial Test the proposed novatee
procures (aa) a suitable guarantor approved by the Council (such approval
not to be unreasonably withheld or delayed where the Financial Test is met)
who covenants by deed in a form approved by the Council (such approval not
to be unreasonably withheld or delayed) to comply with the Guarantors
covenants in clause 43 and/or (bb) the provision of such other security
arrangements as may be necessary to satisfy the Financial Test and which
shall be approved by the Council (such approval not to be unreasonably
withheld or delayed);
(Hi) the Buyer may not novate this Agreement to a Prohibited Transferee unless
such Prohibited Transferee has been previously approved in writing by the
Council; and
(iv) the Buyer and the Guarantor shall as from the date of such novation be
released from any liability under this Agreement (whether accrued or
antecedent or not).
42.3 Any dispute in relation to:
(a) the form of any document required to be completed pursuant to this clause 42;
(b) whether any proposed assignee or novatee satisfies the Financial Test;
(c) whether it has been demonstrated that the assignee or novatee has or can procure
and credibly manage and co-ordinate the technical expertise and experience to carry
out the Development or
(d) any proposed security arrangements,
shall be determined if so required by the Buyer by an Expert pursuant to clause 40.4.
42.4 Notice of dealing
The Buyer shall forthwith give written notice to the Council of any dealing permitted under this
clause 42.
42.5 Sub-Buyers
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42.5.1 If the Buyer shall so direct the Relevant Land shall on completion of the relevant Phase
Transfer be transferred by the Council directly to (a) a Permitted Sub-Buyer or (b) a
Connected Party. If the Relevant Land is transferred by the Council to the Buyer the Buyer
shall not effect any Controlled Dealing except (i) to a Connected Party or (ii) a Permitted Sub-
Buyer and any Connected Party to which a Controlled Dealing shall have been made shall
also hot effect any Controlled Dealing except to (aa) another Connected Party or (bb) a
Permitted Sub-Buyer.
42.5.2 Notwithstanding the foregoing once (a) a Controlled Dealing has been effected to a Permitted
Sub-Buyer, or (b) there shall have been a material Commencement of Development (as
defined in Schedule 10) on the Relevant Land, or (c) if the land shall be held by a Connected
Party that shall cease to be a Connected Party and such former Connected Party would be a
Permitted Sub-Buyer or (d) the period of 3 years shall have elapsed since the date of the
transfer of the Relevant Land by the Council then and in each such case, the restrictions in
this clause 42.5 shall cease to have effect in relation to the Relevant Land.
42.5.3 The Buyer may if it wishes serve notice in writing on the Council requiring the Council to state
whether any entity (Specified Entity) is a Permitted Sub-Buyer (Sub-Buyer Notic&).
42.5.4 If the Buyer serves a Sub-Buyer Notice and the Council fails to serve a counter notice in
writing on the Buyer within 15 Working Days thereafter stating that the Specified Entity is not
a Permitted Sub-Buyer and giving the Council reasons for so stating (and such reasons must
contain a fair and reasonable assessment given by the Council in good faith), then the
Specified Entity shall be deemed for the purposes of this Agreement to be a Permitted Sub-
Buyer.
42.5.5 In default of agreement as to whether a Specified Entity is a Permitted Sub-Buyer the Buyer
may refer the matter to the Expert for determination under clause 40.
42.5.6 The Buyer shah be entitled to assign to any Connected Party or Sub-Buyer such rights under
this Agreement as it may choose in relation to-the Relevant Land.
42.5.7 The Council shall accept the grant of any Replacement Accommodation Lease in relation to
the Relevant Land from any entity with the ability to grant the same but without prejudice to
the restrictions on Controlled Dealings in this clause provided that such grant shall not be a
Controlled Dealing. 3
42.5.8 For the avoidance of doubt:
(a) nothing in this clause 42.5 shall prevent the grant of any mortgage charge or other
security in respect of any Relevant Land or impose any restriction on any disposition
by any entity with the benefit of such mortgage charge or other security;
(b) the Buyer shall not be relieved from any of its obligations under this Agreement by
reason of the operation of this clause 42.5; and
(c) the obligations and restrictions in this clause 42.5 are personal and shall not be
binding on any land and no registrations in relation thereto shall be made by the
Council against the Relevant Land.
42.5.9 The Buyer shall not be relieved from any of its obligations under this Agreement by reason of
the operation of this clause 42.5 or otherwise solely by reason of the disposal of any part of
the Option Land.
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43 Guarantee
The Guarantor hereby covenants with the Council in the terms set out in Schedule 1.
44 Guarantor and replacement of Guarantor
The Parties agree to comply with and acknowledge that the terms of Schedule 1 shall apply.
46 Liability caps
45.1 Notwithstanding any other provisions of this Agreement or the Compulsory Purchase, Closure
Order and Appropriation Scheme Costs and Compensation Agreement:
45.1,1 the Buyers liability in relation to Overage shall not exceed the Buyers Overage Cap; and
45.1.2 the Buyers liability in relation to Capped Compensation and Costs shall not exceed the Total
CPO and Closure Orders Compensation and Costs Sum.
46 Freedom of information
46.1 Disclosure obligations
The Buyer shall use reasonable endeavours to assist the Council in its compliance with the
disclosure obligations to a Request imposed on the Council by:
46.1.1 the Freedom of Information Act 2000 (FOIA) and all subordinate legislation; and
46.1.2 the Environmental Information Regulations 2004 and any other implementing Regulations in
the UK of EC Directive (2003/4EC) on Public Access to Environmental Information (all of
which shall together be referred to as the Elk),
together, the Rules, to the extent that such obligations relate to information held by the
Buyer on behalf of the Council or otherwise in connection with this Agreement or the
Development.
46.2 Supply of material
If the provisions of clause 46.1 require the Buyer to supply material in which the Buyer is the
owner or a licensee of the copyright the Council will not disclose such material without an
accompanying notice acknowledging the owner of such copyright provided that the Buyer on
supplying any such material to the Council gives the Council prior written notice of its
copyright in such materials and the requirements of the Council to acknowledge such
copyright.
46.3 Buyers good faith
In complying with the obligations of clause 46.1 the Buyer agrees that it shall not knowingly
act or omit to act (but excluding any acts or omissions to act requested by the Council) in
such a way as to prevent the Council from complying with its obligations under the Rules.
46.4 Requests for information
Where a valid Request for information under any of the Rules has been received by the
Council in connection with this Agreement;
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46.4.1 the Council will adhere to the requirements of and consider the availability of the exemptions
under the Rules in disclosing information relating to this Agreement and the other Parties and
will not disclose any commercially sensitive information;
46.4.2 the Council will inform the Buyer as soon as reasonably practicable after the receipt of such
request including the details of what informstion has been requested, when it was received
and the deadline for responding; and
46.4.3 the Parties shall co-operate with each other in bringing any legal or other proceedings to
challenge the validity of the requirement to disclose information (at the cost and expense of
the Psrty seeking to avoid disclosure).
46.5 Responding to Requests
Where a valid Request for information under the Rules has been received by the Council and
responding to such a request (which for the svoidance of doubt includes confirming or
denying that the information is held by the Council) would involve the disclosure of information
about or in relation to the Buyer, to the Development and/or this Agreement then the Council
shall consult with the Buyer before confirming or denying that such information is held and/or
disclosing the information in order for the Parties to agree:
(a) whether the Council should confirm or deny holding the information and/or disclose
the information; and/or
(b) whether any exemptions under the Rules or any other legislation may apply to
prevent the confirmation or denial and/or the disclosure of such information.
46.6 Buyers views
For the avoidance of doubt the Parties agree that in pursuance of clause 46.5(a) and
clause 46.5(b) the Buyer shall be entitled to express its views to the Council in relation to
whether disclosure can be withheld on grounds including (but not limited to):
46.6.1 that the cost of compliance with the request would exceed the appropriate limit under the
FOIA;
46.6.2 that the request represents a vexatious or repeated request under the FOIA;
46.6.3 common interest privilege;
46.6.4 that the public interest in withholding the relevant information outweighs the public interest in
disclosing it; and/or
46.6.5 that the information is commercially sensitive.
46.7 Non-disclosure
Where the Buyer does not agree to such confirmation or denial and/or disclosure pursuant to
clause 46.5 the Buyer will provide details in writing to the Council within 3 Working Days of
being notified of the details of the request of the reasons it believes some or all of the
information requested should not be disclosed. The Council shall fully and properly consider
any representations made to it by the Buyer and shall inform the Buyer what information it
intends to confirm or deny and/or disclose the person making the request at least 3 Working
Days before confirmation or denial and/or disclosure is to be made.
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46.8 Duty to co-operate
The Council (insofar as doing so is consistent with its obligations under the Rules) and the
Buyer will co-operate to seek to challenge any alleged duty on the Council to disclose any
information about this Agreement or the terms of this Agreement.
46.9 Appropriate measures -
The Parties agree that nothing in this Agreement will operate to prevent the Buyer from taking
all measures that it considers appropriate (including but not limited to seeking injunctive relief)
where it does not agree to and seeks to prevent the Councils proposed confirmation or denial
and/or disclosure of information pursuant to clause 46.5.
46.10 Designation as public authority
In the event that the Buyer is designated a public authority for the purposes of the FOIA by an
Order made pursuant to section 5 of the FOIA or where the Buyer is deemed to be a public
authority for the purposes of the EIR the Parties agree that identical reciprocal arrangements
to those set out in this clause 46 shall apply as appropriate.
46.11 Press announcements
Prior to making any press announcements or similar public statements on this Agreement
and/or any document referred to in it each Party shall refer the content of such statements to
the Project Delivery Group and obtain the prior written approval of the other to the content,
form, timing and manner of publication of the press statement or similar public announcement
(such approval not to be unreasonably withheld) Provided That either Party shall be entitled to
issue a public statement responding to any Challenges without consent as long as the
relevant Party makes it clear this statement is from the relevant Party acting alone.
46.12 Compliance with legal obligations -
Nothing in this Agreement will prevent the Council (nor fetter its discretion in relation to):
46.12.1 complying with all or any of its legal obligations under and/or in relation to the Rules;
46.12.2 complying with any valid order, decision, enforcement or practice recommendation notice
issued to it by the Information Commissioner and/or where applicable, the Information
Tribunal and/or the courts of England and Wales under the Rules in relation to any
information; and/or
46.12.3 complying with its strict legal obligations to publish information under its statutory publication
scheme(s) from time to time under the FOTA and/or to provide and/or to make available
environmental information from time to time under the EIR.
46.13 Unauthorisecj disclosure
Each Party shall notify the other as soon as possible after the disclosure to any third party of
any information about this Agreement or the terms of this Agreement in contravention of:
46.13.1 the Rules;
46.13.2 the requirements of this clause 46; and
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46.13.3 any other duty.
47 confidentiality
47.1 commercially sensitive
Subject to clause 46 the Parties acknowledge that the terms of this Agreement (including
without limitation figures or financial expectations or other information in or derived from or
provided pursuant to the various schedules or appendices to this Agreement) are
commercially sensitive and that disclosure of the same would prejudice the Parties
commercial interests and shall be kept confidential and no Party hereto shall make any press
release or announcement in respect thereof without the approval of the others nor shall any
Party disclose the terms of this Agreement to any third party save:
47.1.1 for the purpose of complying with the requirements of this Agreement;
47.1.2 where the information is already in the public domain;
47.1.3 where legally requisite;
47.1.4 in the case of disclosure by the Buyer where commercially normal or sensible to do so or is
necessary for the purposes of nominating any Sub-Buyer;
47.1.5 to financial advisors funding partners and financial institutions and their professional advisors;
47.1.6 to the extent necessary in order to comply with the requirements of the Stock Exchange;
47.1.7 to HM Revenue and Customs or the rating authority;
47.1.8 to respective auditors; or
47.1.9 to the extent necessary to obtain professional advice in relation to the determination of any
dispute,
provided that where reasonable and appropriate an undertaking shall be obtained from the
party to whom the confidential information is disclosed to keep such information confidential
mutatis mutandis.
48 Miscellaneous
48.1 Consent and approval by the council
48.1.1 Wherever in this Agreement any action or obligation is authorised or required or agreed to be
taken and performed to or by the Council it shall be sufficient if such action or obligation is
taken or performed by the Chief Executive of the Council or other nominated officer having
ostensible authority.
48.1.2 Where any application for the consent or approval of the Council is made by the Buyer the
Buyer will at the request of the Council (either itself or through duly appointed
representatives) attend such meetings as the Council may reasonably require so as to enable
the Council to give due and proper consideration to the subject matter of such application.
48.2 Councils statutory powers
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Nothing contained or implied in this Agreement shall unlawfully prejudice or unlawfully affect
the rights powers duties and obligations of the Council in the exercise of its functions as a
local planning highway or building regulations authority or as a local authority under any
statutory provisions and the rights powers duties obligations of the Council under all private
and public statutes bye laws orders and regulations may be as fully and effectively exercised
in relation to the Development.
48.3 Representations and fitness of the Option Land
48.3.1 The Parties acknowledge that they have not entered into this Agreement in reliance wholly or
partly on any representations or statements made by or on behalf of the other Party save for
any representations or statements which are expressly set out in this Agreement or which are
contained in written replies exchanged between the Councils solicitors or the Councils in
house legal officers directly and the Buyers solicitors prior to the date hereof.
48.3.2 No condition representation or warranty howsoever arising whether collaterally or directly or
indirectly shall be made or implied either as to the state or condition of the Option Land or any
part or parts thereof or as to its fitness for the purposes of the Development.
48.4 Non-Merger
This Agreement shall remain in full force and effect in respect of anything which remains to be
done observed or performed hereunder and the terms and conditions of this Agreement shall
continue to apply notwithstanding:
48.4.1 any Phase Completion; or
48.4.2 the grant of any Replacement Accommodation Lease.
48.5 Severability
The illegality invalidity or unenforceability of any clause or part of this Agreement will not -
affect the legality validity or enforceability of the remainder. If any clause or part is found by
any competent court or authority to be illegal invalid or unenforceable the Parties agree that
they will substitute provisions in a form as similar to the offending provisions as is possible
without rendering them illegal invalid or unenforceable.
48.6 Contracts (Rights of Third Parties) Act
48.6.1 This Agreement does not create any rights enforceable by any person not a party to it except
that a person who is the permitted successor to or assignee of the rights of a Party is deemed
to be a Party to this Agreement.
48.6.2 Save where expressly required by the provisions of this Agreement this Agreement may be
rescinded or varied by the Parties hereto without the consent of or the need to give notice to
any person not a Party to it.
48.7 Option Land
From exchange of this Agreement, the Council shall not (without the consent of the Buyer in
its absolute discretion):
48.7.1 dispose of the Option Land (within the meaning ascribed to dispose of in section 205(1)fli) of
the Law of Property Act 1925) save where required to do so:
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(a) pursuant to the Right to Buy (but without prejudice to the obligation of the Council in
relation to the service of demolition notices pursuant to paragraph 5.18 of Part I of
Schedule 6); or
(b) as provided in paragraph 4 of Part I of Schedule 6; or
(c) by law under a Section 34A Application,
48.7.2 give or agree to give a restrictive covenant restricting user of the property that would restrict
the Buyers proposed development or use of the property.
48.8 Corrupt gifts and payments of commission
48.8.1 The Buyer shall not receive or agree to receive from any person or offer or agree to give to
any person or procure for any person any gift or consideration of any kind as an inducement
or reward for doing or not doing anything or for showing favour or disfavour to any person in
relation to the Agreement or any other contract with the Council.
48.8.2 The Buyer shall not conspire with any person to do any of the acts mentioned in this clause
48.8.
48.8.3 The Buyer shall use reasonable endeavours to ensure that its contractors or agents are
aware of the terms of this clause 48.8.
48.9 No partnership
48.9.1 Nothing in this Agreement will:
(a) constitute or be deemed to constitute a partnership between the Council and the
Buyer or any Connected Party; or
(b) constitute or be deemed to constitute either the Council or the Buyer (or any
Connected Party) acting as agent of the other for any purpose whatsoever.
48.9.2 Neither the Council nor the Buyer shall hold itself out as agent of or have authority or power to
procure the acceptance of any liabilities whatsoever on behalf of the other.
48.10 Registration of Agreement at the Land Registry
48.10.1 Neither the Buyer nor the Guarantor shall be entitled to note this Agreement against the
Councils registered title other than by virtue of a unilateral notice and shall not without the
written consent of the Council send this Agreement or a copy thereof to the Land Registry
provided that in respect of any unregistered land the Buyer may register a caution against first
registration.
48.10.2 The Council shall not be entitled to note this Agreement against the registered titles to land
outside the Option Land belonging to the Buyer, a Connected Party or the Seagrave Road LP
or land within the Option Land that is transferred pursuant to a Phase Transfer and for the
avoidance of doubt this clause shall not prevent registration of the restriction required
pursuant to paragraph 1.10 of Part 3 of Schedule 10.
48.11 Governing law
Without prejudice to clause 40:
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48.11.1 this Agreement is goxerned by and shall be construed in accordance with the laws of England
and the Parties heretp submit to the non-exclusive jurisdiction of the English courts in respect
of any differ~nce or dispute.between them; and
48.11.2 each of the Parties i&evooably agrees that the courts of England shall have non-exclusive
jurisdiction to hear and decide any sUit~ction or proceedings and/or to settle any disputes
which may arise oSof or in conncUon with this Agreement and for these purposes each of
the Parties hereto irrevocably subthits to the jurisdiction of the courts of England.
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The COMMON SEAL of MAYOR AND
BURGESSES OF THE LONDON BOROUGH OF
KAMMERSMITH AND FULHAM was hereunto
affixed under aut tication of:
Auth sad by e Council to sign in that behalf
Executed as a deed by EC PROPERTIES LP
acting by its general partner, EC PROPERTIES
GP LIMITED, acting by two directors or a director
and the company secretary
EXECUTED AS A DEED
By EARLS COURT LIMITED
acting by two director or a director and its
secretary
IN WITNESS WHEREOF this Deed has been executed as a Deed and delivered on the date first
above written
Narne1of director
Signature of director
Name of director/company secretary
Signature of director/company secretary
Name of director:
Signature of director~
Name of director/company secretary.
Signature of director/company secretary
128 42878078.2\1o08
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