dated 2016 london borough of barnet kleinwort benson ...bailey.persona-pi.com/public-inquiries/brent...
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H2696/00048/85713914 v.3
DATED 2016
LONDON BOROUGH OF BARNET
and
JTC FUND SOLUTIONS (JERSEY) LIMITED
and
KLEINWORT BENSON (JERSEY) TRUSTEES LIMITED
and
HAMMERSON (BRENT CROSS) LIMITED
and
STANDARD LIFE INVESTMENTS BRENT CROSS LP
PROPERTY DEVELOPMENT AGREEMENT
relating to a proposed development atBrent Cross and Cricklewood
125 London WallLondon EC2Y 5AL
Tel: +44 (0)20 7524 6000
H2696/00048/85713914 v.3 i
CONTENTS
Clause Subject matter Page
1. DEFINITIONS ......................................................................................................................2
2. INTERPRETATION............................................................................................................29
3. APPROVALS .....................................................................................................................30
4. CONDITIONALITY.............................................................................................................31
5. SATISFACTION OF STAGING CONDITIONS..................................................................31
6. DEVELOPMENT................................................................................................................32
7. DEFAULT/EXPIRY PROVISIONS.....................................................................................33
8. TERMINATION ..................................................................................................................34
9. ALIENATION......................................................................................................................35
10. WAIVER .............................................................................................................................37
11. PROCUREMENT...............................................................................................................38
12. ADJUSTMENT OF ANNUAL RENT PERCENTAGE ........................................................39
13. INDEPENDENT PERSON .................................................................................................39
14. COUNCIL'S COSTS ..........................................................................................................41
15. HEAD LEASE VARIATION AND TRANSFER OF DISPOSAL LAND, NORTHERNPUBLIC REALM ROUTES, SOUTHERN INFRASTRUCTURE PLOTS AND THE DEEDOF EASEMENT .................................................................................................................47
16. PUBLIC SECTOR BODY REQUIREMENTS.....................................................................49
17. NOTICES ...........................................................................................................................51
18. GOOD FAITH.....................................................................................................................53
19. NO PARTNERSHIP ...........................................................................................................53
20. NO AGENCY......................................................................................................................53
21. ENTIRE AGREEMENT ......................................................................................................53
22. RIGHTS OF THIRD PARTIES ...........................................................................................54
23. CONSTRUCTION CONTRACTS (ENGLAND AND WALES) EXCLUSION ORDER 199854
24. PERSONAL OBLIGATIONS LATE PAYMENT AND NO SET-OFF..................................54
25. INDEMNITIES....................................................................................................................54
26. GOVERNING LAW AND JURISDICTION .........................................................................55
27. REPRESENTATIONS AND WARRANTIES......................................................................55
28. OPINION LETTER .............................................................................................................55
29. COUNCIL'S OBLIGATIONS ..............................................................................................56
30. VALIDITY ...........................................................................................................................56
31. CUMULATIVE REMEDIES ................................................................................................56
32. VARIATIONS .....................................................................................................................57
33. VALUE ADDED TAX..........................................................................................................57
34. CONFIDENTIALITY ...........................................................................................................58
35. INFRASTRUCTURE WORKS ...........................................................................................59
36. RELEASE OF THE DEVELOPER .....................................................................................60
37. APPROPRIATION OF RELEVANT PARTS OF COUNCIL LAND ....................................61
38. LIVING BRIDGE AND PEDESTRIAN BRIDGE PRINCIPLES ..........................................61
39. CONTRIBUTION TOWARDS PROCUREMENT COSTS AND GROUNDINVESTIGATIONS.............................................................................................................61
40. WHITEFIELD ESTATE RELOCATION..............................................................................61
41. JOINT PLANNING DOCUMENTS.....................................................................................61
42. PRIMARY SUB-STATION .................................................................................................61
H2696/00048/85713914 v.3 ii
43. RETAIL RESTRICTION .....................................................................................................62
47. TFL COST SAVINGS.........................................................................................................67
48. ACCESS AREAS AND EASEMENT AREAS ....................................................................67
Schedule 1..............................................................................................................................................69Staging Conditions.............................................................................................................69Part 1..................................................................................................................................69Planning Condition.............................................................................................................69Part 2..................................................................................................................................88Highways Condition ...........................................................................................................88Part 3..................................................................................................................................90Infrastructure Condition......................................................................................................90Part 4..................................................................................................................................92Funding Condition ..............................................................................................................92Part 5..................................................................................................................................94Pre-Let Condition ...............................................................................................................94Part 6..................................................................................................................................96
Part 7................................................................................................................................100
Part 8................................................................................................................................101Site Assembly Condition ..................................................................................................101Part 9................................................................................................................................103CPO Condition .................................................................................................................103
Schedule 2............................................................................................................................................111Part 1................................................................................................................................111Licence to occupy for surveys..........................................................................................111Part 2................................................................................................................................112Southern Lands................................................................................................................112
Schedule 3............................................................................................................................................114Special Conditions ...........................................................................................................114
Schedule 4............................................................................................................................................120Part 1................................................................................................................................120Definitions used in this Schedule 4 .................................................................................120Part 2................................................................................................................................135Overage Surplus – operative provisions..........................................................................135Part 3................................................................................................................................140Adjustment of Annual Rent Percentage and Payment of Recapitalised Overage...........140Part 4................................................................................................................................142Adjustment of Minimum Rent in Head Lease ..................................................................142
Schedule 5............................................................................................................................................143Part 1................................................................................................................................143Council Land to the North (title details)............................................................................143Council Land in the South (title details) ...........................................................................143
Schedule 6............................................................................................................................................145Amendments to the Satisfactory Planning Permission....................................................145
Schedule 7............................................................................................................................................150Approved Council's Costs ................................................................................................150
Schedule 8............................................................................................................................................156The Council's Costs Protocol ...........................................................................................156
Schedule 9............................................................................................................................................158Part 1................................................................................................................................158Living Bridge Principles....................................................................................................158Part 2................................................................................................................................159Pedestrian Bridge Principles............................................................................................159
H2696/00048/85713914 v.3 iii
Schedule 10..........................................................................................................................................162Contribution towards procurement costs/ground investigation........................................162
Schedule 11..........................................................................................................................................164Part 1................................................................................................................................164Whitefield Estate Replacement Units...............................................................................164Part 2................................................................................................................................176Whitefield Estate Replacement Units – Relocation Costs ...............................................176
Schedule 12..........................................................................................................................................178Commercially Sensitive Information.................................................................................178
Schedule 13..........................................................................................................................................179Part 1................................................................................................................................179Scope of Project Management Services..........................................................................179Part 2................................................................................................................................181Scope of Development Management Services................................................................181
Schedule 14..........................................................................................................................................184Suspension Provisions.....................................................................................................184
Schedule 15..........................................................................................................................................189Joint Planning Documents ...............................................................................................189Part 1................................................................................................................................189Definitions used in this Schedule 15................................................................................189Part 2................................................................................................................................192Part 3................................................................................................................................197
Schedule 16..........................................................................................................................................201Primary Sub-Station.........................................................................................................201
Schedule 17..........................................................................................................................................203Outstanding Planning Requirements ...............................................................................203
Annexure 1 ...........................................................................................................................................211Plans ................................................................................................................................211
Annexure 2 ...........................................................................................................................................212Novation Agreement ........................................................................................................212
Annexure 3 ...........................................................................................................................................213First Head Lease Variation ..............................................................................................213
Annexure 4 ...........................................................................................................................................214Second Head Lease Variation .........................................................................................214
Annexure 5 ...........................................................................................................................................215Opinion Letter...................................................................................................................215
Annexure 6 ...........................................................................................................................................216Disposal Land Transfer....................................................................................................216
Annexure 7 ...........................................................................................................................................217Deed of Pre-emption........................................................................................................217
Annexure 8 ...........................................................................................................................................218CPO Indemnity Agreement ..............................................................................................218
Annexure 9 ...........................................................................................................................................219Critical Infrastructure........................................................................................................219
Annexure 10 .........................................................................................................................................220[Not Used] ........................................................................................................................220
Annexure 11 .........................................................................................................................................221New Deed of Restrictive Covenant ..................................................................................221
Annexure 12 .........................................................................................................................................222Demolition Licence...........................................................................................................222
Annexure 13 .........................................................................................................................................223
Annexure 14 .........................................................................................................................................224Cost Estimate...................................................................................................................224
Annexure 15 .........................................................................................................................................225
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Southern Critical Infrastructure Plans ..............................................................................225
Annexure 16 .........................................................................................................................................226Deed of Release ..............................................................................................................226
Annexure 17 .........................................................................................................................................227
Southern Development Plan ............................................................................................227
Annexure 18 .........................................................................................................................................228
Confidentiality Agreement................................................................................................228
Annexure 19 .........................................................................................................................................229
Current draft Programme.................................................................................................229
H2696/00048/85713914 v.3 PC/JPM/04 July 20161
PROPERTY DEVELOPMENT AGREEMENT
DATE 2016
PARTIES
(1) LONDON BOROUGH OF BARNET of The Town Hall, The Burroughs, Hendon, London
NW4 4BG;
(2) JTC FUND SOLUTIONS (JERSEY) LIMITED (formerly known as Kleinwort Benson (Channel
Islands) Corporate Services Limited) and incorporated and registered in Jersey under company
registration number 32203, the registered office of which is at Elizabeth House, 9 Castle Street,
St. Helier, Jersey, Channel Islands JE2 3RJ as trustee of The Standard Life Investments UK
Shopping Centre Trust (in such capacity, "JTC");
(3) KLEINWORT BENSON (JERSEY) TRUSTEES LIMITED (incorporated and registered in Jersey
under company registration number J7366), the registered office of which is at Kleinwort
Benson House, West's Centre, St. Helier, Jersey, Channel Islands JE4 8PQ as nominee for
JTC (in such capacity, "KB(J)");
(4) HAMMERSON (BRENT CROSS) LIMITED (incorporated and registered in England and Wales
under company registration number 03377460), the registered office of which is at King's Place,
90 York Way, London N1 9GE ("HBC"); and
(5) STANDARD LIFE INVESTMENTS BRENT CROSS LIMITED PARTNERSHIP, registered in
Scotland with partnership number (SL020465) whose principal place of business is at 1 George
Street, Edinburgh EH2 2LL ("SLP").
RECITALS
(A) The Council and the Developer wish to secure the redevelopment of the BX Site for the
Development described in this Agreement.
(B) The Council has powers by virtue of section 2 of the Local Government Act 2000 to promote the
social, economic and environmental well-being of its area. The carrying out of the Development
is authorised by these powers and in particular the Council and the Developer recognise that
the Development is expected, amongst other things, to address the identified and established
need to transform the existing Brent Cross Shopping Centre into a new town centre.
(C) On 11 October 2013 the S73 Application was submitted to the LPA and on 30 January 2014 the
LPA's planning committee resolved to grant planning permission pursuant to the S73
Application subject (amongst other matters) to the prior completion of the S73 Planning
Agreement.
(D) On 22 July 2014 the S73 Planning Agreement was completed and on 23 July 2014 the S73
Planning Permission was issued.
H2696/00048/85713914 v.3 PC/JPM/04 July 20162
(E) Since July 2014 the Developer has submitted, and the LPA approved, a number of applications
in respect of pre-reserved matters, reserved matters, the discharge of conditions, minor non-
material amendments and other applications pursuant to the S73 Planning Permission and the
Developer and the LPA have entered into a deed of variation to the S73 Planning Agreement.
(F) The Council and the Developer and others entered into the Co-operation Agreement and the
CPO Indemnity Agreement on 3 March 2015 to the intent that, with this Agreement, the Parties
are able to facilitate comprehensive development of the Site.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
In this Agreement, unless the context otherwise requires, words and expressions defined in a
schedule shall have the meanings ascribed in that schedule throughout this Agreement and the
following words and expressions shall have the following respective meanings:
"2016 Variation"
means a deed of variation to this Agreement and/or a deed of variation to a deed of
restrictive covenant dated 4 June 2015 (as applicable), both made between (1)
London Borough of Barnet (2) JTC Fund Solutions (Jersey) Limited (3) Kleinwort
Benson (Jersey) Trustees Limited (4) Standard Life Investments Brent Cross LP
and (5) Hammerson (Brent Cross) Limited on [ ] 2016;
"Above Ground Development"
means any development above ground floor level for any use that is not the
Historic Restricted Purpose on land which is subject to one or more of the Historic
Deeds of Restrictive Covenant;
"Agreed Funding"
means 50 per cent of the Shortfall (if any);
"Agreed Funding Agreement"
means an agreement to be entered into between the Council and the Developer to
govern the drawdown of the Agreed Funding on similar terms to those contained in
the TIF Grant Agreement;
"Agreement"
means this agreement as the same may be varied from time to time;
"Annexure"
means the various forms of annexures contained in the Book of Annexures
numbered accordingly;
H2696/00048/85713914 v.3 PC/JPM/04 July 20163
"Anticipated Construction Area Requirement Date"
means the estimated date on which the Developer shall require access to the
Construction Area (as defined in Part 2 of Schedule 2) in order to carry out the
Critical Infrastructure;
"Anticipated Requirement Dates"
has the meaning set out in Schedule 11;
"Anticipated Retail Park Land Requirement Date"
means the estimated date on which access is required for the purposes of
commencing the carrying out of the Southern Development;
"Approved Firm"
means any one of the following firms of solicitors (including any successors to such
firms) and any other firm approved by the Developer (acting reasonably):
(a) Berwin Leighton Paisner LLP
(b) Clifford Chance LLP
(c) Herbert Smith Freehills
(d) Hogan Lovells
(e) Ashurst
(f) Nabarro LLP
(g) Norton Rose Fulbright
(h) Allen & Overy LLP
(i) Eversheds LLP
(j) Freshfields Bruckhaus Deringer LLP
(k) King & Wood Mallesons
(l) Linklaters
(m) Macfarlanes LLP
(n) Mayer Brown International LLP
(o) Addleshaw Goddard LLP
(p) CMS
(q) DLA Piper LLP
(r) Jones Day
(s) Mishcon de Reya LLP
(t) Slaughter and May
(u) Dentons
(v) Gowling WLG (UK) LLP
(w) Olswang
(x) Pinsent Masons
H2696/00048/85713914 v.3 PC/JPM/04 July 20164
(y) Reed Smith LLP
(z) Simmons & Simmons LLP
(aa) Taylor Wessing LLP
"Approved Ownership Vehicle"
means a limited company, partnership, unit trust or trust (or such other vehicle as
the Council may approve) in which Standard Life Plc (company number
SC286832) or Hammerson plc (company number 360632) or a Group Entity or
Group Entities together hold in aggregate a minimum 25 per cent economic
interest or in respect of which one of them is the fund or asset manager or
investment advisor;
"Asset Leases"
means the Head Lease and the Intermediate Leases and "Asset Lease" shall be
construed accordingly;
"Book of Annexures"
means the various annexures accompanying this Agreement identified as the
"Book of Annexures" executed by the Parties by way of agreement;
"Bridge Structure B1"
means the bridge over the North Circular substantially in the position as indicated
on Parameter Plan 002 (as defined as Bridge Structure B1 (Replacement A406
Templehof Bridge) in the S73 Planning Application including the piles and any
embankments, abutments, parapets, support piers, foundations, bridge furniture
and associated structure and any footing;
"Bridge Structure B4"
means the new pedestrian bridge over the North Circular as indicated on
Parameter Plan 002 (defined as Bridge Structure B4 (Pedestrian Bridge over the
A406) in the S73 Planning Application) including the piles and any embankments,
abutments, parapets, support piers, foundations, bridge furniture and associated
structure and any footings;
"Bridge Structure B7"
means the bridge over the North Circular from the Development to the Southern
Development substantially in the position as indicated on Parameter Plan 002 (as
defined as Bridge Structure B7 Living Bridge) in the S73 Application and referred to
in this Agreement as the "Living Bridge";
"Bridges"
means Bridge Structure B1, Bridge Structure B4 and Bridge Structure B7;
H2696/00048/85713914 v.3 PC/JPM/04 July 20165
"BX Funder"
means any of the following the identity of whom shall have been previously notified
in writing by the Developer to the Council:
(bb) a Funder; or
(cc) a Group Entity which is providing a guarantee or any other financial form of
support to the Developer in connection with the Development;
"BX Site"
means the site shown for identification purposes only coloured blue on Plan 1;
"BXS Land"
means any land acquired by the Council or any Joint Venture Entity whether by
contract or pursuant to a CPO (other than the Retail Park and the Existing Council
Land) in connection with the proposed development of the Southern Development;
"Claim"
means any proceedings brought by a Third Party in respect of this Agreement or
any agreements entered into pursuant to this Agreement under the Regulations as
varied amended or replaced from time to time or under any future implementation
of EU legislation in the field of public procurement (including the EC public
procurement directives) or, in relation to the field of public procurement, any judicial
review action, complaint to the European Commission and any investigation, claim,
suit and/or action taken by the European Commission before the European Court
or before the United Kingdom Government in connection with this Agreement
which leads (directly or indirectly) to any claim, action or direction against or in
respect of the Council and/or which affects this Agreement;
"Collaboration Agreement"
means the collaboration agreement dated 17 January 2005 made between (1) the
Council (2) CRL (3) JTC (4) KB(J) (5) Hammerson (Brent Cross) Limited and
(6) Multiplex Limited;
"Commence"
has the meaning contained in the S73 Planning Agreement and
"Commencement", "Commenced" and "Commence Development" shall have
corresponding meanings;
"Commercially Sensitive Information"
means all information which is believed by the Parties to this Agreement to be
commercially sensitive and if disclosed would be likely to prejudice the Developer's
commercial interests and which as at 3 March 2015 includes (without limitation) the
information referred to in Schedule 12;
"Conduits"
means all conduits or other media, including all fixtures and ancillary apparatus,
used for or in connection with the supply of all or any of electricity, gas, water,
telecommunications, surface water and foul drainage and other similar services;
H2696/00048/85713914 v.3 PC/JPM/04 July 20166
"Contract Rate"
means an interest rate equal to three per cent over the base rate of Barclays Bank
PLC or such other clearing bank as the Council shall nominate from time to time;
"Co-operation Agreement"
means an agreement between (1) London Borough Barnet (2) Cricklewood
Regeneration Limited (3) Hammerson (Cricklewood) Ltd (4) Hammerson UK
Properties plc (5) JTC (6) KB(J) and (7) Hammerson (Brent Cross) Ltd in relation to
the proposed development at Cricklewood completed on 3 March 2015 as the
same may be varied from time to time;
"Council"
means the London Borough of Barnet or any statutory successor thereto acting in
its capacity as owner of parts of the Site (but for the avoidance of doubt not in its
capacity as local planning authority local environmental health authority local
highway authority or as local authority in respect of part II Environmental Protection
Act 1990);
"Council Elements"
means any community or public facilities within the Development which are
constructed by the Developer to the extent to which they are directly funded, in
whole or in part by or are for the benefit of the Council or the public and are subject
to the Public Procurement Regime;
"Council Land"
means:
(dd) the land shown coloured blue and pink on the Plan attached to the CPO
Indemnity Agreement dated 3 March 2015 made between (1) London
Borough of Barnet and (2) Kleinwort Benson (Channel Islands) Corporate
Services Limited and Kleinwort Benson (Jersey) Trustees Limited and (3)
Hammerson (Brent Cross) Limited to the extent the same is owned by the
Council at the relevant date; and
(ee) to the extent that the Developer has acting reasonably notified the Council of
a requirement for land outside limb (a) above, any land acquired by the
Council after the date of the 2016 Variation for which the primary purpose of
the acquisition is for delivery of the Critical Infrastructure;
"Council Officer"
means any officer or other employee of the Council including any Consultant
employed by the Council as a secondee and "Council Officers" shall be
construed accordingly;
"Council Purposes"
means any purposes which relate to the discharge of the Council's statutory
functions;
H2696/00048/85713914 v.3 PC/JPM/04 July 20167
"Council's Consultants"
means any professional or other person with relevant expertise whom it is
reasonably necessary for the Council to appoint in connection with any matter
arising under this Agreement including the negotiation or completion of this
Agreement and "Consultant" shall be construed accordingly;
"Council's Costs"
means any reasonable and proper cost or expenses reasonably and properly paid
incurred or reimbursed by the Council in accordance with the terms of this
Agreement including costs and expenses in respect of the Council's Consultants;
"Council's Costs Protocol"
means the costs protocol referred to in Schedule 8;
"Council's Defence Costs"
means any costs reasonably and properly incurred by the Council arising in
connection with the defence of any Claim;
"Council's Solicitors"
means Gowling WLG of 4 More London Riverside, London SE1 2AU
(reference: 2105100/RVB1) or such other firm as the Council shall notify to the
Developer in writing;
"Counsel"
means a Queen's Counsel suitable experienced in matters relating to public
procurement;
"CPO Condition"
means the Staging Condition referred to in Part 9 of Schedule 1;
"CPO Confirmation"
has the meaning contained in Part 9 of Schedule 1;
"CPO Confirmation Date"
has the meaning contained in Part 9 of Schedule 1;
"CPO Indemnity Agreement"
means the CPO Indemnity Agreement dated 3 March 2015 made between (1)
London Borough of Barnet and (2) Kleinwort Benson (Channel Islands) Corporate
Services Limited and Kleinwort Benson (Jersey) Trustees Limited and (3)
Hammerson (Brent Cross) Limited as the same may be varied from time to time;
"Critical Infrastructure"
means the following:
(a) Critical Infrastructure (Phase 1A (North)) (as defined in the S73 Planning
Agreement);
H2696/00048/85713914 v.3 PC/JPM/04 July 20168
(b) Critical Infrastructure (Phase 1B (North) (as defined in the S73 Planning
Agreement)); and
(c) the works listed at Annexure 9,
"Current Index Figure"
means the figure given in the Index in the month immediately preceding 3 March
2015;
"December 2010 Deed"
means the deed of variation and grant of option relating to the grant of the New
Head Lease made between (1) The Mayor and Burgesses of the London Borough
of Barnet (2) Hammerson (Brent Cross) Limited and (3) Hammerson UK Properties
plc dated 2 December 2010 as varied by the December 2010 Deed of Variation;
"December 2010 Deed of Variation"
means the deed of variation of the December 2010 Deed between (1) London
Borough of Barnet (2) Hammerson (Brent Cross) Limited and (3) Hammerson UK
Properties plc dated the same date as this Agreement;
"Decoupled Date"
has the meaning contained in paragraph 5.1.1 of Part 1 of Schedule 1 of this
Agreement;
"Deed of Easement"
means a deed or deeds prepared by the Council incorporating such provisions as
the Council shall reasonably require (including such covenants rights and other
provisions as would be included in accordance with good commercial practice) and
approved by the Developer for no consideration (other than contributions towards
repair maintenance and renewal in accordance with such good commercial
practice) enabling the Council and those deriving title from and/or authorised by it
to use and connect to the Critical Infrastructure (to the extent that the same is
owned by the Developer and is located within the Southern Development) for any
reasonable purpose in connection with the Southern Development;
"Deed of Postponement"
means a deed postponing the rights of any mortgagee or chargee in favour of the
rights of the Council under this Agreement, with the form of such deed having
previously been approved by the Council (as applicable);
"Deed of Pre-emption"
means the deed of pre-emption in the form of Annexure 7 with such reasonable
amendments as the Parties may agree in the event that the New Head Lease is in
place at the time when such deed is to be completed in accordance with
clause 15.1.3;
"Deed of Release"
means a deed of release in the form of Annexure 16;
H2696/00048/85713914 v.3 PC/JPM/04 July 20169
"Developer"
means HBC and SLP comprising the fourth and fifth parties to this Agreement;
"Developer's Option"
means the deed between (1) London Borough of Barnet (2) Kleinwort Benson
(Channel Islands) Corporate Services Limited (3) KB(J) and (4) Hammerson (Brent
Cross) Limited dated 3 March 2015 relating to the grant of an option for the New
Head Lease;
"Developer's Solicitors"
means Nabarro LLP of 125 London Wall, London EC2Y 5AL
(reference: PB/KS/H2696/00006) or such other solicitors as the Developer shall
notify to the Council from time to time;
"Development"
means the development of the BX Site in accordance with a Satisfactory Planning
Permission including for the avoidance of doubt the Critical Infrastructure;
"Development Obligations"
means the following obligations in relation to the carrying out of any relevant part of
the Development:
(a) in good and workmanlike manner in accordance with good building practice
and with good quality materials;
(b) in accordance with the Satisfactory Planning Permission, the Approvals and
any related Planning Agreement Infrastructure Agreement or Services
Agreement;
(c) in accordance with all statutory requirements; and
(d) in the case of Council Elements to the reasonable satisfaction of the Council;
"Disposal Land"
means the land shown for identification only edged red on Plan 3 (subject to the
terms of clause 15.3);
"Disposal Land Provisions"
means the conditions specified in Schedule 3;
"Disposal Land Transfer"
means the transfer of the Disposal Land in the form of Annexure 6 together with
any variations of the same agreed between the Council and the Transferee (as that
term is defined in Schedule 3) acting reasonably (including any variations in
accordance with clause 15.3);
"Dispose"
means the sale lease transfer assignment declaration of trust or grant of an estate
option interest or right but excluding any Permitted Disposal and any reference to
"a Disposal" shall be construed accordingly;
H2696/00048/85713914 v.3 PC/JPM/04 July 201610
"Event of Default"
means the occurrence of any of the following events:
(a) a substantial failure by the Developer to observe or perform an agreement
condition obligation or stipulation on its part contained in this Agreement; or
(b) the occurrence of an Event of Insolvency;
"Event of Insolvency"
means any of the following:
(a) the Developer enters into any composition for the benefit of its creditors;
(b) the Developer:
(i) makes a voluntary arrangement or submits to its creditors or any of
them a proposal under part I of the Insolvency Act 1986; or
(ii) makes an application to the court under sections 895 to 901 of the
Companies Act 2006 or resolves to make such an application; or
(iii) is the subject of an administration order under part II of the Insolvency
Act 1986 or is subject to a resolution passed by the directors or
shareholders for the presentation of a petition for such an order or has
a petition for such an order presented against it; or
(iv) is the subject of a resolution for voluntary winding-up (otherwise for
the purpose of an amalgamation or reconstruction) or in the event that
a meeting of creditors is called to consider a resolution for winding up;
or
(v) has an interim order or winding-up order made against it; or
(vi) ceases to exist;
"Existing Centre"
means the existing Brent Cross Shopping Centre shown for identification only
edged red on Plan 4;
"Existing Council Land"
means together:
(a) the land for identification only coloured brown on Plan 2 and brief details of
which are described and set out in Part 1 of Schedule 5; and
(b) the land brief details of which are described and set out in Part 2 of
Schedule 5;
(c) any land notified to the Developer pursuant to clause 43.1.1(a);
but excluding land acquired for Council Purposes;
"Existing Property Assets"
means the Existing Centre and the Retail Park;
"Financial Appraisal"
means any or all of the Original, Latest or Updated Financial Appraisals (as the
context requires);
H2696/00048/85713914 v.3 PC/JPM/04 July 201611
"First Development Phase"
has the meaning contained in Schedule 4;
"First Development Phase Opening Date"
has the meaning contained in Schedule 4;
"First Head Lease Variation"
means the deed of variation of the Head Lease in the form of Annexure 3 with
such reasonable amendments as the Parties may agree in the event that the New
Head Lease is in place at the time when such document is to be completed in
accordance with clause 15.1.1 (to ensure that the variations provided for properly
apply and cross-refer to the relevant provisions in the New Head Lease);
"Force Majeure Event"
means the occurrence of any of the following:
(a) act of God;
(b) war, hostilities, rebellion, revolution, insurrection, military or usurped power,
armed conflict or civil war;
(c) nuclear, chemical or biological contamination;
(d) labour lock-outs, strikes or, without limitation, other labour disputes (whether
affecting the workforce of a Party and/or any other person);
(e) riot, civil commotion, disorder or act or threat of terrorism;
(f) pressure waves caused by aerial devices travelling at supersonic speeds;
(g) decree of government;
(h) lightning, earthquake, fire, flood, storm, tempest or other extreme or unusual
weather conditions, bursting or overflow of water tanks apparatus or pipes,
earthquake, aircraft and other aerial devices or articles dropped therefrom;
(i) theft, malicious damage;
(j) breakdown or failure of plant or machinery;
(k) delay by a local authority or statutory undertaker in carrying out work in
pursuance of its statutory obligations or failure by such authority or statutory
undertaker to carry out such works;
(l) loss or damage by any one or more insured risk;
(m) non-availability of materials or equipment;
(n) periods of extension of time properly allowed to a building contractor under
the terms of any building contract;
(o) changes in law;
(p) any failure or default of a supplier or sub-contractor of a Party;
(q) the occurrence of any Claim; or
(r) any other cause or circumstance beyond the reasonable control of the Party
seeking to rely on the event in question;
H2696/00048/85713914 v.3 PC/JPM/04 July 201612
"Funder"
means a party providing funding (directly or indirectly) in connection with the
Development (which shall include any party providing a guarantee or security
relating to the provision of such funding) and any proposed purchaser of the
Disposal Land of which the Council shall have received prior written notice;
"Funding Condition"
means the Staging Condition referred to in Part 4 of Schedule 1;
"Group Entity"
means in relation to each of the Parties constituting the Developer:
(a) any limited company, partnership, unit trust or trust (or equivalent vehicle)
directly or indirectly owned by it or any holding company of either of the
Parties constituting the Developer or any subsidiary of either of them or of
such holding company and including for the avoidance of doubt Hammerson
(Cricklewood) Limited; or
(b) any entity including (without limitation) any body corporate, partnership, real
estate investment trust, collective investment scheme trust partnership, unit
trust (or equivalent vehicle) or other legal form in respect of which:
(i) a group entity within paragraph (a) above shall have been appointed
as the property manager and/or property investment adviser thereto
and the shareholders partners beneficiaries unit holders or investors
(as the case may be) holding the majority of the economic interest in
such entity are all persons within paragraph (a) above or persons
whose assets are managed on a discretionary basis by a person
within paragraph (a) above; or
(ii) any entity including (without limitation) any body corporate partnership
trust real estate investment trust collective investment scheme trust
partnership, unit trust (or equivalent vehicle) or other legal form which
any such entity shall have acquired (whether by way of merger
amalgamation sale transfer or other disposition) a material part of the
assets of the Developer;
"Head Lease"
means the leasehold interests at Brent Cross Shopping Centre and surrounding
land comprised in the following leases:
(a) a lease of Brent Cross Shopping Centre dated 16 March 1982 made
between (1) the Council (2) Reunion Properties Company Limited and
(3) The Hammerson Property & Investment Trust Limited and a lease of part
of Brent Cross Shopping Centre dated 18 January 1995 made between
(1) the Council and (2) Hammerson UK Properties plc (the "Brent Cross
Lease") registered at the Land Registry under title number NGL682633;
(b) a lease of land adjoining the land comprised in the Brent Cross Lease (and
being supplemental to the Brent Cross Lease) dated 25 January 1985 made
between (1) the Council (2) Hammerson UK Properties Limited and (3) The
Hammerson Property Investment & Development Corporation plc (the
H2696/00048/85713914 v.3 PC/JPM/04 July 201613
"Supplemental Brent Cross Lease") registered at the Land Registry under
title number NGL520028;
(c) four leases (together the "Ancillary Leases") of premises adjoining the
premises comprised in the Brent Cross Lease and/or the Supplemental
Brent Cross Lease as follows:
(i) a lease of land on the north side of North Circular Road, Hendon with
the Cash Register Works, Glass Works and building known as
Endeavour House dated 7 December 1993 made between (1) the
Council and (2) Hammerson UK Properties plc registered at the Land
Registry under title number NGL754907;
(ii) a lease of land (formerly used as allotments) to the north west of
North Circular Road, Hendon dated 7 December 1993 made between
(1) the Council and (2) Hammerson UK Properties plc registered at
the Land Registry under title number NGL720599;
(iii) a lease of land (formerly known as Brent Buildings) on the northern
side of North Circular Road, Hendon dated 7 December 1993 made
between (1) Hammerson International Holdings Limited and
(2) Hammerson UK Properties plc registered at the Land Registry
under title number NGL720596; and
(iv) a lease of land known as 307–333 (odd) Hendon Way, Hendon dated
7 December 1993 made between (1) Hammerson International
Holdings Limited and (2) Hammerson UK Properties plc registered at
the Land Registry under title number NGL720598;
(d) a Deed of Variation of the Brent Cross Lease, Supplemental Brent Cross
Lease and Ancillary Leases dated 7 December 1993 made between (1) The
Mayor and Burgesses of the London Borough of Barnet and (2) Hammerson
UK Properties Limited; and
(e) a Deed of Variation and Grant of Option dated 2 December 2010 and made
between (1) the Council (2) Hammerson (Brent Cross) Limited and
(3) Hammerson UK Properties plc,
until such time as the New Head Lease is granted after which "Head Lease" shall
mean the New Head Lease;
"Highways Agreement"
means an agreement to be entered into pursuant to section 278 or section 38 of
the Highways Act 1980 (or such other statutory provisions as may be relevant in
relation to the construction of any highways or bridges or improvements thereto) as
required in order to commence to carry out and complete or bring into use Phase 1
in accordance with the Satisfactory Planning Permission and/or any relevant
Planning Agreement;
"Highways Condition"
means the Staging Condition referred to in Part 2 of Schedule 1;
H2696/00048/85713914 v.3 PC/JPM/04 July 201614
"Historic Deeds of Restrictive Covenant"
means together the deeds of restrictive covenant in respect of the Existing Council
Land completed :
(a) pursuant to clause 43 of this Agreement prior to the 2016 Variation; and
(b) pursuant to clause 43.1.1(b) following the 2016 Variation;
"Historic Restricted Purpose"
means the carrying on of the business of:
(a) a managed comparison based retail development (excluding a traditionally
managed high street or a retail park) within which comparison shopping
occupies an area in excess of the Historic Restricted Size (disregarding the
area of any comparison shopping floor space within a supermarket); or
(b) a cinema;
"Historic Restricted Size"
means floor space with a net internal area (measured in accordance with the
current edition of the RICS Code of Measuring Practice) in excess of 100,000
square feet provided always, where retail developments are physically linked and
managed together, the aggregate floor space is taken into account in calculating
the excess (if any);
"Implementation Notice"
has the meaning contained in the CPO Indemnity Agreement;
"Indemnified Party"
means the Party receiving an indemnity under this Agreement;
"Indemnifier"
means the Party giving an indemnity under this Agreement;
"Independent Person"
means an independent person appointed in accordance with clause 13;
"Index"
means the General Building Cost Index based on the Quarterly Review of Building
Prices published by BCIS (table 1.1) provided that:
(a) if the Index is re-based at any time or times, the relevant index figures for the
purposes of this Agreement will be the figures that would have been given in
the Index for the relevant month had there been no re-basing of the Index;
and
(b) if the Index ceases to be published, the Developer shall, after the date the
Index ceases to be published, select a replacement prices index, to be the
Index for the purposes of this definition. The Developer shall act reasonably
in making its selection of a replacement index;
H2696/00048/85713914 v.3 PC/JPM/04 July 201615
"Indicative Construction Programme"
has the meaning contained in the S73 Planning Agreement;
"Information"
means any information held (in whatever form) by or in the control of the Council,
including any documentation, specification, drawing, computer programmes, data,
reports or other material relevant to the request in question;
"Infrastructure Agreement"
means a Highways Agreement and/or a Services Agreement;
"Infrastructure Condition"
means the Staging Condition referred to in Part 3 of Schedule 1;
"Integrated Programme Management Office"
means the office established by the Council pursuant to clause 29.7;
"Intention to Novate"
means a statement by the BX Funder that it wishes to enter into a Novation
Agreement or procure a nominee to enter into a Novation Agreement;
"Intermediate Lease(s)"
means any of the leases (other than the Head Lease) that fall within the definition
of the Existing Leases or the Principal Lease (both of which expressions having the
meaning ascribed to them in the Head Lease) or are in reversion to the Existing
Leases or the Principal Lease including any New Asset Lease;
"Joint Venture Entity"
means an entity in whatever legal form formed in connection with the Southern
Development or which owns any land within the Southern Development and in
which the Council is a member or shareholder (or any comparable legal term with
regard to the relevant form of such entity) or has entered into contract with for the
purposes of carrying out the development of the Southern Development or an
entity or arrangement in or through which the Council directly or indirectly has an
interest, financial or otherwise, or could directly or indirectly receive gain, financial
or otherwise in relation to the Southern Development;
"Latest Financial Appraisal"
means the last financial appraisal to be produced by the Developer;
"Long Stop Date"
means three years after CPO Confirmation Date;
H2696/00048/85713914 v.3 PC/JPM/04 July 201616
"LPA"
means the local planning authority or other planning authority determining or who
determines any planning application or application lodged under any planning
permission for the Development;
"Necessary Consents"
means any "Necessary Consents" as defined in the S73 Planning Agreement
and/or S73 Planning Permission required in respect of the construction of Phase 1;
"New Agent"
means a single entity which is resident in the United Kingdom of Great Britain,
Jersey or Guernsey and which has an address for service in the United Kingdom
(who may be the Restriction Agent following the operation of any deemed
appointment pursuant to clause 43.3.1);
"New Asset Lease"
means a lease (not being a Permitted BX Disposal) granted after the date hereof
which shall be in reversion to the Principal Lease or the Existing Leases;
"New Deed of Restrictive Covenant"
means the deed of restrictive covenant in the form of Annexure 11 following
completion of the 2016 Variation (other than for the avoidance of doubt the deed
completed pursuant to clause 43.1.1(b));
"New Head Lease"
means the new 999 year head lease of Brent Cross Shopping Centre to be entered
into either:
(a) at the option of the Developer pursuant to the Developer's Option; or
(b) at the option of Hammerson (Brent Cross) Limited (or its successors in title
to the Head Lease), pursuant to the provisions of the December 2010 Deed;
"Non-Satisfaction"
means either:
(a) the Unconditional Date does not occur by the Long Stop Date or the right to
terminate has otherwise arisen under Schedule 1; or
(b) a vesting declaration shall not have been served by the Council pursuant to
the CPO Indemnity Agreement in respect of all Relevant Interests comprised
in a Confirmed CPO within three years of the CPO Confirmation Date;
"Northern Public Realm Routes"
means:
(a) the routes identified pursuant to paragraph 23.3 of the Second Schedule of
the S73 Planning Agreement to the extent required to discharge the
obligations on the part of the Developer referred to at such paragraph 23.3;
and
H2696/00048/85713914 v.3 PC/JPM/04 July 201617
(b) the access from the Living Bridge to the bus station together with Prince
Charles Drive and other routes as shown on Plan 20,
in either case subject to such variation or temporary discontinuance as the landlord
and tenant under the Head Lease shall reasonably agree;
"Northern Public Realm Deeds of Variation"
means deeds of variation in respect of the Head Lease and the Asset Leases
reserving rights for public access, use and enjoyment over and along the Northern
Public Realm Routes;
"Novation Agreement"
means a novation agreement substantially in the form of Annexure 2;
"Novation Parties"
means the Parties to this Agreement, and any assignee and in the case of any
Novation Agreement after the first Novation Agreement the parties to the previous
Novation Agreement (other than the assignor) and reference to "Novation Party"
shall be deemed to be a reference to any one of them as the context so admits;
"Opinion Letter"
means the opinion letter from Mourant Ozannes in respect of JTC and KB(J), in the
form of Annexure 5;
"Original Financial Appraisal"
means the financial appraisal which has been seen and agreed between the
Developer and the Council and lodged at the Developer's Solicitors' offices prior to
3 March 2015;
"Parameter Plan(s)"
means the drawings known as the Parameter Plans which accompanied the
S73 Application and are approved by or under a Satisfactory Planning Permission
(including any replacement Parameter Plan or amendments) which set out the
parameters for the development to be carried out under the Satisfactory Planning
Permission including the Development;
"Part Transferee"
means any party that takes a transfer, disposal or underlease of part of the BX Site
and intends to construct part of the Development (other than a part where the
principal intended use is for retail purposes or is part of the Phase 1 Minimum) on
the land comprised in such transfer, disposal or underlease;
"Party"
means any one of the Council or the Developer and reference to "Parties" means
together the Developer and the Council;
H2696/00048/85713914 v.3 PC/JPM/04 July 201618
"Permitted BX Disposal"
means a disposal by the Developer derived (directly or indirectly) from an Asset
Lease which is:
(a) an occupational lease licence or other right of occupation granted to a party
who is entitled to enjoy occupation of the premises concerned or asset
management transaction or the grant of an agreement to enter into such an
arrangement; or
(b) the grant of any right or interest in accordance with the principles of good
estate management; or
(c) to a statutory undertaker (acting in its statutory capacity); or
(d) a mortgage charge or any security over an Asset Lease or this Agreement
subject to the mortgagee or chargee entering into a Deed of Postponement;
"Permitted Cinema"
means a cinema having:
(a) three cinema screens or fewer; and
(b) a capacity of not more than 300 seats in total and no more than 150 seats
for any one cinema screen;
"Permitted Council Disposal"
means a disposal by the Council of the Council Land which is:
(a) a letting or licence (which does not create security of tenure) expiring prior to
the Anticipated Requirement Date or capable of being determined on or after
the Anticipated Requirement Date on not more than three months' written
notice; or
(b) a disposal of the reversion (whether immediate or not) to the Head Lease or
any mortgage or charge of such reversion by the Council either:
(i) following the entry into a Novation Agreement pursuant to clause 9.5;
or
(ii) where (following the Completion of the Deed of Pre-emption in
accordance with clause 15) the Developer does not serve an
Acceptance Notice (as defined in the Deed of Pre-emption) on the
Council pursuant to the Deed of Pre-emption; or
(c) to a statutory successor; or
(d) contemplated by this Agreement; or
(e) (following the identification of the areas to be the Required Easement Area)
not a Required Easement Area or it was a Required Easement Area but
such land is no longer required by the Developer for the purposes of the
Living Bridge or Pedestrian Bridge or the terms of the Disposal make the
disponee subject to the rights of the Developer in accordance with this
Agreement due to the land being a Required Easement Area;
(f) (following the identification of the areas to be the Required Access Areas)
not a Required Access Area or it was a Required Access Area but such land
is no longer required by the Developer for the carrying out of the Critical
Infrastructure or the terms of the Disposal make the disponee subject to the
H2696/00048/85713914 v.3 PC/JPM/04 July 201619
rights of the Developer in accordance with this Agreement due to the land
being a Required Access Area;
(g) (following the identification of the areas to be the Relevant Infrastructure
Land) not Relevant Infrastructure Land or if it was Relevant Infrastructure
Land the relevant Infrastructure Agreements have been entered into or the
terms of the Disposal:
(i) (insofar as the same relates to Relevant Infrastructure Land) make the
disponee subject to the rights (expressly referring to the Relevant
Infrastructure Land pursuant to this Agreement) afforded to the
Developer following the designation of such land as Relevant
Infrastructure Land by the Developer in accordance with clause 35;
(ii) in the case of a freehold transfer or lease granted for a term in excess
of 35 years (other than those of residential units):
(A) provide for the disponee to deliver a deed of adherence (in
the form agreed between the Council and the Developer, both
acting reasonably and without delay) to the Developer
whereby the disponee covenants on behalf of itself and its
successors in title to comply with the requirements set out in
paragraph (i) (above) (mutatis mutandis); and
(B) provide for a restriction to be registered at Land Registry so
that no disposition may be registered without a certificate
from an Approved Firm confirming that such a deed of
adherence has been provided.
"Permitted Disposal"
means a Permitted BX Disposal or a Permitted Council Disposal (as the case may
be);
"Phase 1"
means those elements of the Development defined as Phase 1 (North) pursuant to
the S73 Planning Permission;
"Phase 1 Minimum"
means those works in the following Table referred to in the column headed
"Phase 1 Minimum":
Works Total Within Planning inPhase 1 ApplicationMaximum (GEA)
Phase 1Minimum
Retail and Related uses Northof A406 (Classes A1, A2, A3,A4, A5)
78,133 sq. m 28,969 sq. m
Creation of new Brent CrossMain Square (Ref M3 onParameter Plan 003)
0.35 hectares 0.35hectares
Critical Infrastructure All
H2696/00048/85713914 v.3 PC/JPM/04 July 201620
"Phase 1 Minimum Longstop Date"
means the later of:
(a) the tenth anniversary of the Unconditional Date (the "First Phase 1
Minimum Longstop Date");
(b) the date expiring on the First Phase 1 Minimum Longstop Date extended by
the Suspension Period Extension (the "Revised Phase 1 Minimum
Longstop Date"); and
(c) the date expiring on the First Phase 1 Minimum Longstop Date or (if
applicable) the Revised Phase 1 Minimum Longstop Date extended (in each
case) by such period as shall be fair and reasonable to take account of the
occurrence of any Force Majeure Event;
"Phase 2 North"
means that part of the Development shown for identification only edged red on
Plan 6;
"Phase Proposal Consent Submission Powers"
means all covenants, obligations, powers, discretions and rights afforded to the
Developer pursuant to clause 6 of any and all New Deeds of Restrictive Covenant
entered into pursuant to clause 43.1.5 and/or from time to time pursuant to clause
43.4 of this Agreement;
"Plan 1", "Plan 2", "Plan 3" etc.
means the plans annexed as Annexure 1 and so marked;
"Planning Agreement"
means an agreement in respect of or affecting the BX Site and/or the Critical
Infrastructure (whether or not affecting other property) expressed to be made
pursuant to section 106 of the Town and Country Planning Act 1990 (and in
conjunction with other relevant statutory provisions including section 32 of the
Local Government (Miscellaneous Provisions) Act 1982 or section 111 of the Local
Government Act 1972 where appropriate) and also including where applicable the
S73 Planning Agreement and any New Planning Agreement;
"Planning Condition"
means the Staging Condition set out in Part 1 of Schedule 1;
"Practical Completion"
means practical completion in accordance with the relevant agreement as
evidenced by a certificate or statement that the relevant works have achieved
practical completion (or are substantially complete) or have otherwise reached a
stage where the relevant defects period shall have commenced;
"Pre-Let Condition"
means the Staging Condition set out in Part 5 of Schedule 1;
H2696/00048/85713914 v.3 PC/JPM/04 July 201621
"Previous Index Figure"
means the figure given in the Index in the month preceding the Unconditional Date;
"Programme"
means the programme or programmes for the carrying out and completion of the
relevant part of the Development to be undertaken pursuant to this Agreement
prepared (unless the context otherwise requires) in accordance with the S73
Planning Permission and/or the S73 Planning Agreement and to be prepared and
updated from time to time having regard to but not being bound by the Council's
reasonable representations in accordance with clause 6.4.2(c);
"Project Co-ordination"
means co-ordination and progression of all matters arising under this Agreement or
related agreements (or request for variations thereto) on behalf of the Council
including:
(a) acting as a first point of contact for the Developer;
(b) liaising with departments within the Council, the Council's Consultants and
Third Parties;
(c) dealing with requests for information or approvals;
(d) attending meetings at the Council with the Developer and with Third Parties
(save that the Developer shall not be responsible for the costs of the Council
in attending meetings with the Developer and the Southern Developer);
(e) reporting to Council Officers and Members;
(f) ensuring the governance issues are addressed;
(g) dealing with any issues in connection with matters relating to Council
services or functions; and
(h) running the Integrated Programme Management Office as referred to in
clause 14.20;
"Public Access Rights"
means such rights of public access use and enjoyment over and along the Living
Bridge so as to discharge the obligations on the part of the Developer referred to at
paragraph 23 of Schedule 2 to the S73 Planning Agreement subject to such rights
of variation as the Developer shall reasonably require, including the interruption of
such rights for the purposes of repair, maintenance and redevelopment of the BX
Site;
"Public Contracts"
means all contracts which the Developer may let relating to any works, supplies or
services in relation to all or any part of any Council Elements;
"Public Procurement Regime"
means that body of law and practice which regulates the conduct of contracting
authorities such as the Council in the procurement of Public Contracts as primarily
contained in European Council Directive 2004/18/EC (and/or any new directives)
H2696/00048/85713914 v.3 PC/JPM/04 July 201622
which amend, replace, consolidate or re-enact the same) and the Regulations as
interpreted by relevant case law;
"Ramp"
means the ramp shown edged red on Plan 8;
"Reasonable Endeavours"
means the use of all reasonable endeavours by the Developer considered from the
viewpoint of a prudent institutional property investor executing a phased
development in accordance with prudent development practice and in performing
such obligation:
(a) it shall be assumed that such investor owns the Existing Property Assets;
(b) the Developer shall not be obliged to pursue any actions in respect of the
matters necessary to satisfy the Staging Conditions following the
Unconditional Date in respect of the Remainder of the Development or
commence carry out complete or procure the commencement or carrying out
or completion of any part of the Remainder of the Development
(if applied to such part of the Remainder
of the Development to the extent that such Development remains to be
completed) will be met provided that:
(i)
(c) the obligations on the part of the Developer in clause 6.3 shall be deferred
or suspended during
"Regulations"
means the Public Contracts Regulations 2006;
"Relevant Payment"
means a payment by any Party pursuant to this Agreement;
"Relevant Payment Date"
means the date on which a Relevant Payment is due under this Agreement;
"Remainder of the Development"
means any part of the Development in excess of the Phase 1 Minimum (other than
Phase 2 North);
H2696/00048/85713914 v.3 PC/JPM/04 July 201623
"Residential Land"
means such part of the BX Site which is intended by the Developer to be sold or
developed for residential purposes;
"Required Access Area"
means:
(a) for the period from and including the date of this Agreement to and including
the date 4 Working Days after the Unconditional Date, the Council Land; and
(b) from and including the date 5 Working Days after the Unconditional Date the
areas (if any):
(i) agreed by the Developer and the Council under clause 48.1.1 and/or 48.1.3;
or
(ii) notified by the Developer to the Council pursuant to clause 48.1.2 for the
time periods that the Developer has notified the Council that such areas will
be required pursuant to clause 48.1.2 (subject to any dispute as to the
reasonableness of such requirement being resolved pursuant to the same);
"Required Easement Area"
means:
(a) for the period from and including the date of this Agreement to and including
the date 4 Working Days after the Unconditional Date, the Council Land; and
(b) from and including the date 5 Working Days after the Unconditional Date the
areas (if any):
(i) agreed by the Developer and the Council under clause 48.2.1 and/or 48.2.3;
or
(ii) notified by the Developer to the Council pursuant to clause 48.2.2 for the
time periods that the Developer has notified the Council that such areas will
be required pursuant to clause 48.2.2 (subject to any dispute as to the
reasonableness of such requirement being resolved pursuant to the same);
"Restriction Agent"
means a single entity which is resident in the United Kingdom of Great Britain,
Jersey or Guernsey and which has an address for service in the United Kingdom;
"Retail Park"
means Brent South Shopping Park for identification only coloured light and dark
green on Plan 5;
"Retail Park Land"
means the land shown edged red on Plan 17 (but excluding the part of such land
shown edged red on Plan 9C);
H2696/00048/85713914 v.3 PC/JPM/04 July 201624
"Retail Park Land Access Strip"
means the strip of land shown coloured blue on Plan 17;
"Retail Park Land Provisions"
means the conditions set out in Schedule 3 adjusted to take into account the
requirements of JTC and Hammerson (Brent South) Limited and the Council acting
reasonably (which in the case of Hammerson (Brent South) Limited HBC shall
procure);
"Retail Park Land Transfer"
means a transfer of the Retail Park Land to the Council in such form as JTC and
Hammerson (Brent South) Limited and the Council shall agree acting reasonably
(which in the case of Hammerson (Brent South) Limited HBC shall procure) taking
into account the Retail Park Land Provisions and incorporating:
(a) permanent rights of access to the Retail Park Land Access Strip for all
proper purposes in connection with the inspection, maintenance, alteration,
repair and renewal of any buildings constructed on or partly on the Retail
Park Land;
(b) temporary rights of access to the Retail Park Land Access Strip for any
construction of new buildings on or partly on the Retail Park Land as part of
the Southern Development or their subsequent replacement;
(c) rights to hoard the Retail Park Access Land as part of a construction site
where reasonably required in connection with the exercise of rights referred
to in paragraphs (a) and (b); and
(d) the right to erect and swing cranes over the Retail Park Land subject to the
completion of a crane oversailing licence (at the Council's cost) in such form
as the transferor shall reasonably require,
provided always that the transferor shall not be obliged to grant or procure the
grant of any rights which cause the transferor or the landlord of the Retail Park to
be liable for a breach of any obligation in a Retail Park lease or for legal nuisance
and provided further that the transfer shall be made free from any rights over the
Retail Park Land in favour of any tenants of the Retail Park;
"Retail Park Land Transfer Date"
means the date which is 20 Working Days after the Anticipated Retail Park Land
Requirement Date;
"Satisfactory Planning Permission"
means the S73 Planning Permission;
"S73 Application"
means the application for planning permission for the Development submitted to
the LPA on 11 October 2013 under LPA Reference Number F/04687/13;
H2696/00048/85713914 v.3 PC/JPM/04 July 201625
"S73 Planning Agreement"
means the agreement made on 22 July 2014 under section 106 of the Town and
Country Planning Act 1990 (and other parties) between (1) the Council (2) the
Developer (3) the CRL Developer (4) Hammerson (Cricklewood) Limited and
(5) Transport for London to secure the issue of the S73 Planning Permission
and/or any modification or discharge of that agreement proposed by the Developer
and approved by the LPA (or at appeal) pursuant to section 106A of the Planning
Act;
"S73 Planning Permission"
means the planning permission issued on 23 July 2014 pursuant to the S73
Application in respect of the Development and/or any amendment, modification or
discharge of that permission proposed by the Developer and approved by the LPA
(or at appeal) pursuant to sections 73 and/or 96A of the Planning Act;
"Second Head Lease Variation"
means the deed of variation of the Head Lease in the form attached to this
Agreement as Annexure 4 with such reasonable amendments as the Parties may
agree in the event that the New Head Lease is in place at the time when such
document is to be completed in accordance with clause 15.2 (to ensure that the
variations provided for properly apply and cross-refer to the relevant provisions in
the New Head Lease) together with an acknowledgement of receipt by the Council
of the Recapitalised Overage (if any) calculated under paragraph 2 of Part 3 of
Schedule 4 (or as otherwise agreed or determined);
"Services Agreement"
means an agreement in respect of Phase 1 (whether or not also affecting other
property) pursuant to the statutory requirements of the appropriate authority or
utility company relating to the passage or transmission of gas water or electricity
foul or surface water drainage fuel oil telecommunications and other services or
media required for Phase 1;
"Services"
means services in the nature of those referred to in the definition of "Services
Agreement" in this clause 1;
"Shared Development Objective"
has the meaning contained in the CPO Indemnity Agreement;
"Shortfall"
"Site"
means the development site shown for identification purposes only coloured green
and blue on Plan 1;
H2696/00048/85713914 v.3 PC/JPM/04 July 201626
"Southern Critical Infrastructure"
has the meaning given in Part 1 of Schedule 1 of this Agreement;
"Southern Developer"
has the meaning contained in the Co-operation Agreement;
"Southern Development"
means the land shown coloured yellow and hatched blue and yellow on the plan
attached to this Agreement at Annexure 17 subject to any alteration reduction or
enlargement of such area from time to time due to any amendment to the proposed
development by the Council and/or any Joint Venture Entity relating to such area;
"Southern Infrastructure Plot"
means the land edged red on Plan 9A, Plan 9B, Plan 9C and Plan 9D;
"Southern Infrastructure Plot Transfer"
means a form of transfer taking account of the Southern Infrastructure Plot
Provisions and in such form as the Parties shall agree taking into account as
applicable the conditions in Schedule 3;
"Southern Infrastructure Plot Provisions"
means the conditions set out in Schedule 3 adjusted to take into account any
requirements of any vendor of a Southern Infrastructure Plot;
"Southern Site"
shall have the meaning referred to in the Co-operation Agreement;
"Special Conditions"
means the conditions set out in Schedule 3;
"Specified Rights and Obligations"
means the rights and obligations to execute the whole or any part of the
Development contained or referred to in clause 6 of this Agreement;
"Staging Conditions"
means all the following:
(a) the Planning Condition;
(b) the Highways Condition;
(c) the Infrastructure Condition;
(d) the Funding Condition;
(e) the Pre-Let Condition;
(f)
(g)
(h) the Site Assembly Condition; and
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(i) the CPO Condition,
and reference to "Staging Condition" shall be deemed to be a reference to any
one of them as the context so admits;
"Surface Lease"
means a lease of the surface of the Living Bridge (excluding the Ramp) (the
"Living Bridge Demise") to be granted by the Council to the Developer and to be
co-terminus with and to comprise a supplemental lease to the Head Lease upon
the following basis:
(a) any rents or other income received in respect of the Living Bridge shall
comprise part of the Gross Rents under the Head Lease;
(b) all expenditure in connection with the Living Bridge shall to the extent
permitted under the Head Lease comprise part of the Permitted Deductions
under the Head Lease; and
(c) there are reserved to the Landlord the Public Access Rights;
"Suspension Period Extension"
means the period during which Works are suspended (on a concurrent basis)
pursuant to Schedule 14 up to a maximum of three years;
"Target Reduction"
means
"Tender Condition"
means the Staging Condition set out in Part 7 of Schedule 1;
"TFL"
means Transport for London;
"TFL Savings"
means
"Termination Notice"
means a notice given by the Council or the Developer to the other giving notice
that they are terminating this Agreement and specifying the relevant provision of
this Agreement under which such notice is given;
"Third Party"
means any person or body who is not a party to this Agreement and "Third
Parties" shall be construed accordingly;
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"Trust"
means The Standard Life Investments UK Shopping Centre Trust of whom JTC
Fund Solutions (Jersey) Limited is the trustee and Kleinwort Benson (Jersey)
Trustees Limited is the nominee of the trustee;
"Unconditional Date"
means the date upon which the last of the Staging Conditions is satisfied unless at
the date that the last of the Staging Conditions is satisfied one or more of the other
Staging Conditions has ceased to be satisfied (unless the condition is waived in
accordance with this Agreement);
"Updated Financial Appraisal"
means a financial appraisal replacing the Original Financial Appraisal or (if
applicable) the Latest Financial Appraisal having been prepared by reference to a
specific date in accordance with the requirements of this Agreement or prepared
not more than one month prior to a date on which the Appraisal is produced for
inspection by the Council;
"VAT"
means value added tax as imposed by the Value Added Tax Act 1994 and
legislation supplemental thereto;
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"Working Day(s)"
means any day from Monday to Friday (inclusive) which is not Christmas Day, New
Year's Day, Good Friday or a statutory bank holiday.
2. INTERPRETATION
2.1 References to numbered clauses, schedules and paragraphs are references to the relevant
clause or schedule or paragraph of a relevant schedule in this Agreement, unless the context
otherwise requires and their headings are for ease of reference only and are not to be taken
into account in the interpretation of the clause, schedule or paragraph to which they refer.
2.2 Words importing the singular meaning include, where the context so admits, the plural
meaning, and vice versa.
2.3 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 knowingly to permit infringement of the restriction.
2.4 Any notice or acknowledgement, required under this Agreement must be in writing to be
effective.
2.5 Any reference to a month is a reference to a calendar month.
2.6 Any reference to a period of days is to Working Days.
2.7 Any reference to satisfied or satisfaction or approved or approval shall include circumstances
where such arises by deeming or waiver.
2.8 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.
2.9 Any consent or approval of any 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.
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2.10 Where two or more people or bodies form a Party to this Agreement the obligations they
undertake may be enforced against them all jointly or against each individually.
2.11 In this Agreement references to any statute or statutory provision or legislation include
references to:
2.11.1 all Acts of Parliament and all other legislation having legal effect in the United Kingdom;
and
2.11.2 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 (save that in the case of the
Town and Country Planning (Use Classes) Order 1987 it shall refer to that order in the
form in force on 3 March 2015 including for the avoidance of doubt the changes
incorporated by SI 2005/84 (The Town and Country Planning (Use Classes)
(Amendment) Order 2005)).
2.12 The recitals forming part of this Agreement are intended for information only and shall not
affect its interpretation or meaning.
2.13 Any reference to a statutory undertaker shall include for the avoidance of doubt the relevant
highway authority and the appropriate authority or utility company responsible for the
passage or transmission of Services.
3. APPROVALS
3.1 Unless otherwise expressly stated where any agreement, confirmation, expression of
satisfaction, consent, or approval is required from any Party that agreement consent or
approval shall not be unreasonably withheld or delayed.
3.2 If any Party shall seek the agreement consent or approval of the other party pursuant to the
terms of this Agreement such other Party shall respond to any such request for agreement
consent or approval as to whether or not it shall give its agreement consent or approval
within 15 Working Days of such request being made (unless some other period is specified
in this Agreement).
3.3 If the Party to whom a request has been made for their agreement, confirmation, expression
of satisfaction, consent, or approval pursuant to the terms of this Agreement shall not
provide such response within 15 Working Days (or such longer period as may be applicable)
the Party requesting the other Party's agreement consent or approval shall be entitled to
serve a further request upon the other Party (referring to this sub-clause) requesting their
agreement consent or approval in relation to any matter included in the previous unanswered
request and in respect of which agreement consent or approval is required pursuant to the
terms of this Agreement.
3.4 If the Party to whom a request for agreement consent or approval has been made has not
responded within 15 Working Days of such further request their agreement consent or
approval to the matter in respect of which agreement consent or approval has been
requested pursuant to the terms of this Agreement shall be deemed to have been given.
3.5 Time shall be of the essence for the purposes of this clause 3.
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4. CONDITIONALITY
4.1 The provisions of clauses 6, 15 and Schedule 4 are conditional upon the Unconditional
Date occurring on or before the termination of this Agreement pursuant to clause 8.
4.2 If the Unconditional Date shall not have occurred on or before the Long Stop Date either
party may serve a Termination Notice upon the other in accordance with clause 8.
5. SATISFACTION OF STAGING CONDITIONS
5.1 Pursuit of Staging Conditions
The Council and Developer shall comply with the provisions of Schedule 1.
5.2 Not to Commence Development
5.2.1 The Developer shall not Commence Development of Phase 1 unless and until any
obligations in the S73 Planning Agreement requiring the binding of land interests in
Phase 1 not bound at the date of a S73 Planning Agreement have been complied with.
5.2.2 The Developer shall within 12 months of the Unconditional Date procure that any
obligations in the S73 Planning Agreement requiring the binding of land interests in the
Phase 1 Minimum not bound at the date of the S73 Planning Agreement have been
complied with.
5.2.3 (a) The Developer shall following the Unconditional Date and prior to the date
two years nine months and two weeks from the date of the Confirmed CPO serve
the Implementation Notice (as defined in the CPO Indemnity Agreement) in relation
to any Relevant Interest comprised in a Confirmed CPO.
(b) The Developer shall use reasonable endeavours to procure that the matters
referred to in clause 6.2.2 of the CPO Indemnity Agreement are agreed or
determined prior to the date referred to in clause 6.3 of the CPO Indemnity
Agreement.
(c) If the Developer shall not serve an Implementation Notice in relation to any
Relevant Interest comprised in a Confirmed CPO in accordance with
clause 5.2.3(a), then the Council may exercise its powers under the CPO and
proceed to acquire it.
5.2.4 The Council and the Developer shall use their respective reasonable endeavours to
procure that the Council (in its capacity as a party to the CPO Indemnity Agreement) shall
vest in the Council all of the Relevant Interests within a Confirmed CPO.
5.3 First Development Phase
5.3.1 The Developer shall notify the Council as soon as reasonably practicable and in any
event within six months of the CPO Confirmation Date the extent and content of the First
Development Phase.
5.3.2 The Developer may vary the extent and/or content of the First Development Phase by
notice to the Council provided such variation shall not reduce the likelihood of the
Developer being able to satisfy the Staging Conditions.
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6. DEVELOPMENT
6.1 Unconditional Date
If the Unconditional Date shall occur prior to the Long Stop Date then the provisions of this
clause 6 shall apply (but not further or otherwise).
6.2 Developer's obligation – Phase 1 Minimum
The Developer will:
6.2.1 commence the Phase 1 Minimum by not later than 12 months after the Unconditional
Date (save that such 12 month period shall be extended by such period as shall be fair
and reasonable to take account of the occurrence of any Force Majeure Event);
6.2.2 carry out the Phase 1 Minimum (subject to clause 6.5.3) as diligently as reasonably
possible;
6.2.3 use reasonable endeavours to complete the Phase 1 Minimum in accordance with the
Programme;
6.2.4 complete the Phase 1 Minimum by no later than by the Phase 1 Minimum Longstop Date;
and
6.2.5 carry out the Phase 1 Minimum in accordance with the Development Obligations.
6.3 Developer's Obligation – Remainder of the Development
The Developer:
6.3.1 will use Reasonable Endeavours to carry out and complete the Remainder of the
Development as soon as reasonably practicable after the First Development Phase
Opening Date in accordance with the Programme;
6.3.2 in performing any obligation to carry out or procure the carrying out of the Remainder of
the Development will do so in accordance with the Development Obligations; and
6.3.3 will provide such information in relation to the carrying out of the Remainder of the
Development as the Council may reasonably require.
6.4 Programme
6.4.1 The Developer has prepared a draft Programme and the version current as at March
2016 is attached at Annexure 19.
6.4.2 The Developer shall update the Programme from time to time and shall supply the
updated version to the Council on each occasion of any material amendment and, in any
event, not less than once every three months and in updating the Programme the
Developer shall:
(a) have regard to all relevant circumstances including the necessity to obtain Third
Party approvals and/or consents/permissions and the requirements of all statutory
authorities including the highway authority;
(b) liaise regularly with the Integrated Programme Management Office; and
(c) have regard to (but not be bound by) any reasonable representations made by the
Council in relation to the Programme insofar as they impact on the Southern
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Development or the delivery of the new station comprising part of the Southern
Development.
6.4.3 Notwithstanding the provisions of clause 6.3 the Developer will be entitled to make
amendments to the Programme to reflect the fact that its obligation to carry out the
Development (other than the Phase 1 Minimum) is subject to it using Reasonable
Endeavours which may include (where consistent with such obligation) amending the
Programme such that the commencement of any works is deferred or the carrying out of
works suspended.
6.5 Cessation or suspension of Development Obligations
7. DEFAULT/EXPIRY PROVISIONS
7.1 If an Event of Default occurs then subject to this clause 7 the Council and the Developer
shall have the right to serve a Termination Notice on the other.
7.2 If Non-Satisfaction occurs then subject to this clause 7 the Council and the Developer shall
have the right to serve a Termination Notice on the other after the occurrence of Non-
Satisfaction.
7.3 The Council shall not serve a Termination Notice pursuant to clause 7.1 unless it shall
previously have served a notice on the Developer:
7.3.1 specifying details of the particular Event of Default complained of;
7.3.2 requiring the Developer within a reasonable period (as specified in such notice) to either
remedy such breach having regard to the circumstances of the relevant failure or
requiring the Developer to cease the act of such breach (where such failure is incapable
of remedy) and to make good (insofar as is possible) any damage caused by such failure
to the reasonable satisfaction of the Council; and
7.3.3 it shall have served a copy of such notice upon any BX Funder within two Working Days
of such notice being served upon the Developer.
7.4 If the Council or the Developer shall serve a Termination Notice due to the occurrence of
Non-Satisfaction it shall specify in such notice the relevant event of Non-Satisfaction
pursuant to which it is served.
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7.5 Subject to the provisions of clauses 7.6 and 7.7 the Council may only serve a Termination
Notice if within the notice period given under clause 7.3 (in the case of an Event of Default)
the failure complained of shall not have been remedied or stopped and made good (as
appropriate).
7.6.1 The Council shall not serve a Termination Notice pursuant to clause 7.1 unless it shall
have previously served on the BX Funder (if applicable) a copy of the notice which it has
served on the Developer pursuant to clause 7.3 and a notice stating that the right to
serve a Termination Notice has arisen, the grounds giving rise to such right and that it
intends to serve a Termination Notice and such notices shall be served at least
25 Working Days prior to the date of service of the Termination Notice.
7.6.2 Neither the Council nor the Developer shall serve a Termination Notice pursuant to
clause 7.2 unless it shall have previously served a notice on the other Party (and on the
BX Funder) (if applicable) within two Working Days of such notice being served on the
other Party stating that the right to serve a Termination Notice has arisen, the grounds
giving rise to such a right and that it intends to serve a Termination Notice and such
notices shall be served at least 25 Working Days prior to the date of service of such
Termination Notice.
7.7 In any case where a notice has been served under clause 7.1 then if the BX Funder serves
an Intention to Novate on the Council and the Developer within 25 Working Days of receipt
of the notice from the Council under clause 7.6, the Council will not serve a Termination
Notice if the Developer shall assign its interest under this Agreement to the BX Funder or its
nominee within a period of six months following receipt by the Council of the Intention to
Novate in accordance with clause 9 (but excluding clause 9.4.1) (mutatis mutandis) or the
BX Funder shall within such period enter into and complete a Novation Agreement as a
Novation Party.
7.8 The Developer shall nominate which BX Funder (if there shall be more than one at any one
time) shall have the right to serve an Intention to Novate on the Council to the intent that only
one BX Funder at any one time shall have such right provided the Developer may serve
notice on the Council changing the identity of the BX Funder in question.
8. TERMINATION
8.1 This Agreement may only be determined by a Party serving a Termination Notice in
accordance with the provisions set out in this Agreement.
8.2 If a Termination Notice is served in accordance with the provisions of this Agreement then
subject to the terms of clause 7 this Agreement shall automatically cease and determine and
be of no further effect but without prejudice to any right of action or other remedy of the
Parties under this Agreement against any other Party.
8.3 A Termination Notice may only be served where:
8.3.1 an Event of Default has occurred and has not been remedied in accordance with
clause 7.5; or
8.3.2 Non-Satisfaction has occurred; or
8.3.3 the right to serve a Termination Notice has arisen under clause 16.2.1 or 45.4; or
H2696/00048/85713914 v.3 PC/JPM/04 July 201635
8.3.4 the Unconditional Date shall not have occurred on or before the Long Stop Date in
accordance with clause 4.2.
8.4 No Termination Notice may be served pursuant to the provisions of clause 8.3.1 or
clause 8.3.2 unless it shall be permitted pursuant to clause 7 of this Agreement.
9. ALIENATION
9.1.1 The Developer may not assign all or any part of its interest under (or require the novation
of) this Agreement save as expressly permitted by this clause 9 or other than by way of a
Permitted BX Disposal.
9.1.2 The Developer shall not Dispose of any Asset Lease other than by way of:
(a) a Permitted BX Disposal; or
(b) an assignment of an Asset Lease simultaneously with the assignment of the rights
and obligations of the assignor in this Agreement; or
(c) in accordance with clause 9.1.3.
9.1.3 The Developer shall not grant an Asset Lease after the date hereof unless the grantee
enters into a Novation Agreement with the grantor and the other Continuing Parties (as
defined in the Deed of Novation) and the provisions of clause 9.2 shall apply (mutatis
mutandis), provided always that for the avoidance of doubt clauses 9.1.2 and 9.1.3 will
apply for so long only as this Agreement remains in force.
9.2 Subject to clause 9.7 the Developer may only assign its rights and obligations under this
Agreement as a whole (by way of novation) and only if:
9.2.1 all of the conditions set out in clause 9.3 are satisfied;
9.2.2 none of the circumstances set out in clause 9.4 apply; and
9.2.3 it complies with the provisions of this clause 9.
9.3 The conditions referred to in clause 9.2.1 are:
9.3.1 the proposed assignee will simultaneously with the proposed assignment of the rights
and obligations of the assignor in this Agreement take (with or without others) an
assignment of an Asset Lease then held by the assignor;
9.3.2 the Novation Parties shall enter into and complete the Novation Agreement;
9.3.3 the rights and obligations of the Developer under the CPO Indemnity Agreement, the
Co-operation Agreement and any Infrastructure Agreement have been or will
simultaneously be novated to the New Novation Parties in accordance with the terms of
the aforesaid Agreements; and
9.3.4 all copyright plans reports and other data prepared by the Developer in connection with
the Development are assigned to the New BX Novation Parties or the New BX Novation
Parties are granted a licence to reproduce the same.
9.3.5 the rights and obligations of the Developer under all deeds of restrictive covenant entered
into at any time pursuant to clause 43 of this Agreement will simultaneously be novated
to the same party or parties to whom this Agreement is novated and in the case of all
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New Deeds of Restrictive Covenant the deed of novation shall contain the details of the
Restriction Agent or New Agent (as the case may be) for the purposes of clause 43.
9.4 The circumstances mentioned in clause 9.2.2 are:
9.4.1 a Termination Notice has been served by the Council on the Developer before the date of
the proposed Novation Agreement and either the relevant Event of Default or event of
Non-Satisfaction in respect of which such Termination Notice was served remains
unremedied or the event of Non-Satisfaction remains and a BX Funder has not served an
Intention to Novate in respect of such Termination Notice;
9.4.2 the proposed assignee is a company incorporated in or an individual resident in a country
outside the United Kingdom and there is no treaty for the mutual enforcement of
judgments between the United Kingdom and that country unless, in relation to a company
it agrees to be bound by the jurisdiction of the English courts; or
9.4.3 the proposed assignee is a person who enjoys sovereign or state immunity, unless a
department, body or agency of the United Kingdom Government.
9.5 The Council will not:
9.5.1 permit any disposal of the reversion (whether immediate or not) to the Head Lease unless
the disponee or the Novation Parties enter into the Novation Agreement prior to such
disposal (subject to such variations to the Novation Agreement as either the Council or
the Developer shall reasonably require to reflect the provisions in this Agreement that
relate to the Council being a local authority and its continuing interest in respect of this
Agreement); or
9.5.2 enter into any mortgage or charge of such reversion (other than on terms that the
mortgagee or chargee takes its interest subject to the terms of this Agreement),
provided always for the avoidance of doubt clauses 9.5.1 and 9.5.2 will apply for so long
only as this Agreement remains in place.
9.6 The Developer may assign by way of novation the obligations relating to development
contained or referred to in clause 6 of this Agreement to an Approved Ownership Vehicle if:
9.6.1 the conditions set out in clause 9.3.2 apply;
9.6.2 none of the circumstances set out in clause 9.4 apply;
9.6.3 it complies with the provisions of this clause 9; and
9.6.4 the Approved Ownership Vehicle together with any guarantors of the Approved
Ownership Vehicle will, in the reasonable opinion of the Council, be able to comply with
all of the obligations which are to be assigned to it.
9.7 The Developer may assign (after the Unconditional Date)by way of novation the Specified
Rights and Obligations under this Agreement (otherwise than as a whole) insofar as they
relate to the whole or any part of the Development to a Part Transferee if:
9.7.1 the conditions set out in clause 9.3.2 apply;
9.7.2 none of the circumstances set out in clause 9.4 apply;
9.7.3 it complies with the provisions of this clause 9; and
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9.7.4 the Part Transferee together with any guarantors of the Part Transferee, will in the
reasonable opinion of the Council, be able to comply with all of the obligations which are
to be assigned to it,
provided that following any such novation to a Part Transferee the Council's right to serve a
Termination Notice on the Developer shall take effect only in relation to the remainder of this
Agreement.
9.8 The Parties shall, subject to the provisions of this Agreement, enter into a Novation
Agreement within 10 Working Days of a request from the Developer or a BX Funder, or the
Council (or any permitted assignee who has entered into a Novation Agreement) and where
reasonably required by any Party the relevant parties will permit the Novation Agreement to
be held in escrow.
9.9 The Developer has procured that a restriction has been entered onto the proprietorship
register of the title number of each Asset Lease in the following form:
"No disposition of the registered estate by the proprietor of the registered estate, or by the
proprietor of any registered charge, is to be registered without a certificate signed by a
conveyancer for the registered proprietor that the provisions of clause 9 of the Property
Development Agreement dated 3 March 2015 and made between (1) London Borough of
Barnet (2) JTC (3) KB(J) and (4) Hammerson (Brent Cross) Limited (as the same may be
varied from time to time), have been complied with or that they do not apply to the
disposition."
9.10.1 The Developer is as soon as reasonably practicable after the grant of a New Asset Lease
to supply to the Council evidence that the restriction referred to in clause 9.9 has been
properly registered onto the proprietorship register of the title number of the Head Lease.
9.10.2 The Developer is to procure that on the grant of any New Asset Lease that any
mortgagee or chargee thereof consents to the registration of the aforesaid restriction.
9.11 The Council will (at its own cost) procure the removal of the restriction referred to in
clause 9.9 within 10 Working Days of the earlier of:
9.11.1 the date upon which it is agreed by the Council and the Developer or determined by the
Independent Person that the Developer is entitled to a release under clause 36; or
9.11.2 the date of termination of this Agreement.
9.12 The Council hereby grants the Developer an irrevocable power of attorney on and from the
earlier of the dates referred to in clause 9.11 for the sole purpose of removing the restriction
referred to in clause 9.9 and/or any other Land Registry entries made in respect of such
restriction and this Agreement provided that no application to remove such restriction is to be
made without giving at least 10 Working Days' prior notice to the Council.
10. WAIVER
10.1 The Developer shall have the right at any time to serve written notice on the Council waiving
any or all of the Staging Conditions to the extent permitted under Schedule 1 and if the
Developer shall serve such notice then for the purposes of this Agreement the relevant
Staging Condition shall be deemed to have been satisfied on the date of service of such
notice and this Agreement shall be construed accordingly.
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10.2 The provisions of clause 10.1 shall apply as often as is necessary.
11. PROCUREMENT
11.1 The Developer acknowledges that the Council is subject to the Public Procurement Regime.
11.2 In respect of all Public Contracts to be procured by the Developer pursuant to this
Agreement, the Developer shall:
11.2.1 procure the Public Contracts under and at all times in accordance with the Public
Procurement Regime as if the Developer were the Council for the purposes of the Public
Procurement Regime;
11.2.2 comply at all times with all general principles developed in the jurisprudence of the
European Court of Justice in the procurement of the Public Contracts;
11.2.3 liaise and agree with the Council on the evaluation criteria, methodologies and weightings
which will be used to determine which tender is the most economically advantageous,
and the Developer shall take due account of the Council's preferred criteria,
methodologies and weightings;
11.2.4 notify the Council by the fastest means practicable and in any event within two Working
Days of receipt of a notification of any complaint, legal challenge (from aggrieved
tenderers or any other sources and whether pursuant to the Public Procurement Regime
or not), the commencement of legal proceedings or any other matter relating to the
procurement;
11.2.5 permit the Council to assume responsibility for any complaint, legal challenge,
commencement of proceedings or any other issue raised relating to the procurement and
liaise and agree with the Council on the process for the management of any such
complaint, legal challenge, commencement of proceedings or any other issue relating to
the procurement and the Developer shall not be entitled to bind the Council to a course of
action or a decision in relation to any complaint, legal challenge, commencement of
proceedings or any other issue raised relating to the procurement without the Council's
written consent; and
11.2.6 where reasonably required by the Council, to use reasonable endeavours to vigorously
defend any legal challenge.
11.3 The procurement of any Public Contracts by the Developer pursuant to this Agreement shall
follow either the restricted procedure or the competitive dialogue procedure for particularly
complex contracts as set out in the Public Procurement Regime unless the Developer can
demonstrate an appropriate alternative procurement route following review and approval by
the Council.
11.4 The Council and Developer shall use reasonable endeavours to assist and cooperate with
each other throughout any procurement process.
11.5 The Developer undertakes that if it does not comply with the provisions of any of clause 11.1
to 11.6 (inclusive) it will within 20 Working Days of receipt of a written request from the
Council repay forthwith to the Council any payment that the Council has made which relates
to the Council Elements concerned.
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11.6 The Developer shall indemnify and keep indemnified the Council on a full indemnity basis
from and against all and any claims, losses, costs and/or expenses (howsoever arising and
including legal expenses (including the Council's Defence Costs) and third party claims)
reasonably and properly incurred by the Council which arise from any breach by the
Developer of the provisions of any of clause 11.1 to 11.6 (inclusive).
11.7 If either Party becomes aware of the existence of a Claim or Claims they shall promptly
notify the other Parties and:
11.7.1 the Parties to this Agreement shall, continue to observe and perform their respective
obligations contained in this Agreement until unless and to the extent that this Agreement
is set aside or amended by any determination or judgment of a court in respect of a
Claim;
11.7.2 the existence of any Claim or Claims shall not constitute any basis or justification for
breaching their obligations;
11.7.3 each Party shall act and continue to act with the utmost good faith towards the other; and
11.7.4 if any Party breaches any of this clause 11.7 they shall be liable to the others
notwithstanding any other term of the Agreement.
11.8 In the event of any Claim occurring each Party shall bear its own costs, damages, losses,
liabilities, charges, penalties, fees, expenses and demands whatsoever incurred arising out
of or incidental to any such Claim and neither Party shall have any recourse, rights or
remedies against the other whatsoever in respect of:
11.8.1 such Claim; and
11.8.2 any of the matters which are defined in the definition of the Claim.
11.9 No Party shall have any recourse, rights or remedies against any other in the event that this
Agreement is set aside or amended by any determination or judgment of a court in respect of
a Claim by a Third Party (save in respect of pre-existing breaches).
12. ADJUSTMENT OF ANNUAL RENT PERCENTAGE
The Parties shall observe and perform their respective obligations set out in Schedule 4.
13. INDEPENDENT PERSON
13.1 Where this Agreement expressly provides for a particular dispute or difference to be referred
for determination by an Independent Person it shall (subject as otherwise provided in this
clause) be referred for determination by an Independent Person appointed under the
provisions of this clause.
13.2 The Council and the Developer may agree that any other dispute or difference between the
Council and the Developer be referred to an Independent Person under this clause.
13.3 The Independent Person shall be professionally qualified in respect of the subject matter of
the dispute or difference for not less than 10 years and shall be a specialist in relation to that
subject matter.
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13.4 The Independent Person shall be agreed between the Council and the Developer or, failing
agreement, be nominated within 10 Working Days after the relevant Party has given to the
other a written request requiring the appointment by the President or duly authorised officer
of the professional body or institution governing the discipline the subject matter of the
dispute or difference.
13.5 Any dispute or difference as to the discipline of which the specialist is to be appointed and, if
applicable, as to the appropriate professional body or institution to appoint him or her shall
be referred to or determined by an independent barrister or solicitor of not less than
10 years' standing to be agreed between the Council and the Developer or failing
agreement, to be nominated by the President or duly authorised officer of the Law Society on
the application of any Party.
13.6 In any event, it is agreed that any dispute or difference:
13.6.1 as to the meaning or construction of this Agreement and as to the drafting of any
document shall be determined or settled as the case may be by leading counsel that is a
specialist in the relevant area to be appointed, if not agreed between the Parties, by the
President or duly authorised officer of the Bar Council;
13.6.2 as to matters of valuation shall be determined by an Independent Person appointed in the
absence of agreement of the Parties by the President (or other appointed officer) of the
Royal Institution of Chartered Surveyors; and
13.6.3 as to accountancy issues, it shall be determined by an Independent Person appointed by
the President (or other appointed officer) for the time being of the Institute of Chartered
Accountants in England and Wales.
13.7 The reference to an Independent Person is to be made to him as an expert unless the
Council and Developer agree (in their respective absolute discretion) that the Independent
Person should act as an arbitrator.
13.8 Where the Independent Person is to act as an expert:
13.8.1 the Council and the Developer may make written representations within 15 Working Days
of his or her appointment and will copy the written representations to the other party;
13.8.2 the Council and the Developer are to have a further 15 Working Days to make written
comments on each other's representations and will copy the written comments to the
other Party;
13.8.3 the Independent Person is to be at liberty to call for such written evidence from the
Parties and to seek such legal or other expert assistance as he or she may reasonably
require;
13.8.4 the Independent Person is not to take oral representations from the Council or the
Developer without giving both Parties the opportunity to be present and to give evidence
and to cross examine each other;
13.8.5 the Independent Person is to have regard to all representations and evidence before him
or her when making his or her decision which is to be in writing and is to give reasons for
his or her decision;
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13.8.6 the Independent Person is to use all reasonable endeavours to publish his or her decision
within 30 Working Days of his appointment or such earlier date as the Parties shall agree
as a term of the Independent Person's appointment; and
13.8.7 the Independent Person's decision shall be final and binding on the parties (save in the
case of manifest error).
13.9 If the Independent Person is to act as arbitrator:
13.9.1 all submissions made or evidence supplied to him or her are to be in writing unless the
Council and the Developer agree within 10 Working Days of his or her appointment that
this requirement does not apply;
13.9.2 the date of his or her award will be deemed to be the date on which he or she serves a
copy of the award on the Council and the Developer;
13.9.3 the Independent Person will not be entitled to order the rectification, setting aside or
cancellation of this Agreement or any other deed or document;
13.9.4 the Independent Person will not be entitled to direct that the recoverable costs of the
arbitration be limited to a specific amount; and
13.9.5 the Independent Person will not be entitled to require that security be provided in respect
of the costs of the Independent Person.
13.10 Responsibility for the costs of referring a dispute to an Independent Person under this
clause 13, including costs connected with the appointment in connection with his or her
appointment and the Independent Person's own costs but not the legal and other
professional costs of any Party in relation to a dispute, will be decided by the Independent
Person.
13.11 The previous provisions of this clause 13 do not apply to:
13.11.1 any dispute or difference that arises in relation to the exercise by the Council or the
Developer of any rights of termination under this Agreement; or
13.11.2 any planning matter that is expressly to be referred to Planning Counsel under Part 1 of
Schedule 1 of this Agreement.
14. COUNCIL'S COSTS
14.1 Definitions
In this clause 14 the following words and expressions shall have the following meanings:
"Adverse Impact"
means a consequence which will have a material adverse effect on the Council as
a result of the cessation or suspension of a Council Workstream;
"Agreed Budget"
means the Budget Estimate or a Revised Budget Estimate in respect of a Council
Workstream which shall have been approved by the Council and the Developer or
otherwise determined by an Independent Person in accordance with the provisions
of clause 13;
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"Budget Estimate"
means the Council's reasonable estimate of the Council's Costs to be incurred in
connection with a Council Workstream having regard to the relevant Scope of
Works and the relevant Workstream Period;
"Cessation Notice"
means a notice served by one Party upon the other in accordance with
clause 14.7 requiring the Council to cease a relevant Council Workstream;
"Council Workstream"
means each of the Workstreams referred to in Schedule 7 under the heading
"Brief Description of Council's Obligations/Costs to be incurred" which in turn may
in the Council's reasonable discretion be broken down into further workstreams
and workstreams for different consultants but excluding any Excluded Council
Workstream;
"Developer's Estimate"
means an estimate provided by the Developer to the Council of what it considers a
reasonable and proper Budget Estimate should be;
"Excluded Council Workstream"
means any Workstream carried out by the Council in connection with this
Agreement which is not a Council Workstream;
"Revised Budget Estimate"
means a revision by the Council to a previously Agreed Budget together with an
explanation as to why the revision is required;
"Scope of Works"
means in relation to the Council Workstream such work which it is reasonably
necessary for the Council to undertake in connection with a Council Workstream;
"Temporary Budget"
means a prescribed budget in respect of the Council Workstream specified by the
Developer to the Council;
"Workstream"
means any works review action or performance reasonably and necessarily to be
incurred or undertaken by the Council in connection with the performance of its
obligations contained in the Agreement;
"Workstream Period"
means the period reasonably estimated by the Council in relation to the carrying
out of the relevant Council Workstream and used by the Council in determining the
Budget Estimate.
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14.2.1 The Council shall use all reasonable endeavours to provide to the Developer a Budget
Estimate prior to commencing any particular Council Workstream or if that is not
practicable in any event within 10 Working Days of commencing the relevant Council
Workstream.
14.2.2 Subject to the provisions of clause 14.2.3 the Council shall not be obliged to commence
any relevant Council Workstream until an Agreed Budget has been approved or
determined in relation thereto in accordance with the terms of this clause 14.
14.2.3 If the Developer shall prior to the agreement or determination of an Agreed Budget serve
written notice upon the Council requiring the Council to commence work on the relevant
Council Workstream up to the Temporary Budget then the Council shall commence with
such Council Workstream (insofar as it is reasonably practicable to commence such
Council Workstream to the extent of the Temporary Budget) until such Temporary Budget
is exceeded and the Developer shall reimburse the Council in respect of the Council's
Costs up to the amount of the Temporary Budget and the provisions of this clause 14.2.3
shall apply as often as is necessary to any increase from time to time agreed by the
Developer to the Temporary Budget pending agreement of the Agreed Budget.
14.2.4 Notwithstanding the provisions of this clause 14.2 nothing shall prohibit the Council from
commencing a Council Workstream whether or not it shall receive notification of a
Temporary Budget from the Developer before the approval or the determination of an
Agreed Budget in relation to that relevant Council Workstream provided that it is
acknowledged by the Council that if any costs it incurs in connection with that relevant
Council Workstream shall exceed any subsequently notified Temporary Budget and/or
the Agreed Budget therefor then the Developer's liability to reimburse the Council's Costs
in relation to that relevant Council Workstream shall be limited to the Temporary Budget
or the Agreed Budget (as appropriate).
14.3 Without prejudice to the Council's obligations in clause 14.9 the Developer may request the
Council to provide at any time a Budget Estimate in respect of any particular Council
Workstream and/or details of works undertaken and Council's Costs incurred to date in
relation to any Agreed Budget in order to assess whether or not the Agreed Budget is likely
to be exceeded and the Council will provide such information within 10 Working Days of any
such request.
14.4 If the Developer requires additional information in order to determine whether or not a
Budget Estimate provided by the Council is reasonable and proper then it shall notify the
Council of such requirement within 10 Working Days of receipt of such Budget Estimate and
the Council shall use reasonable endeavours to provide such additional information within
10 Working Days of such request.
14.5 If the Developer does not agree that the Budget Estimate is reasonable and proper then it
shall notify the Council of such fact within 10 Working Days of receiving the Budget Estimate
or any additional information that it has requested pursuant to clause 14.4 (as the case may
be) and shall at the same time provide reasons as to why it is not so approved together with
the Developer's Estimate.
14.6 In the event that the Council and the Developer do not agree the Budget Estimate then that
disagreement may be referred by either Party to an Independent Person for determination
pursuant to clause 13.
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14.7 If any disagreement shall have been referred to an Independent Person in accordance with
clause 14.6 then either the Developer or the Council shall be entitled to serve a Cessation
Notice upon the other and if a Cessation Notice is served then (subject to the provisions of
clause 14.8) the Council shall as soon as is possible (and in any event within five Working
Days of service of such Cessation Notice) procure that the relevant Council Workstream is
ceased or suspended.
14.8 Notwithstanding the service of a Cessation Notice by either Party pursuant to clause 14.7
the Council shall not be required to cease or suspend a Council Workstream where to do so
will in the reasonable opinion of the Council have an Adverse Impact upon the Council and if
the Council (acting reasonably) decides that it will have such an Adverse Impact it will be
entitled to continue with the relevant Council Workstream and if it shall so decide then:
14.8.1 it shall notify the Developer of such decision to continue the relevant Council Workstream
within 10 Working Days of the date of service of a Cessation Notice together with full
details of the reasons as to why it considers that to cease the relevant Council
Workstream will have an Adverse Impact; and
14.8.2 it shall use all reasonable endeavours to procure the cessation of that relevant Council
Workstream at such time as soon as is reasonably practicable thereafter where cessation
of that relevant Council Workstream will not have such an Adverse Impact.
14.9 The Council shall keep the Developer fully informed as to the amount of Council's Costs
incurred in respect of any Council Workstream and shall as soon as it becomes reasonably
apparent to the Council that the Council's Costs to be incurred in respect of a Council
Workstream are likely to exceed the Agreed Budget therefor to notify such fact in writing to
the Developer together with reasons as to why the Agreed Budget is likely to be exceeded.
14.10 Where the Council shall have notified the Developer pursuant to clause 14.9 that an Agreed
Budget is likely to be exceeded the Council shall provide to the Developer a Revised Budget
Estimate and the provisions of this clause 14 shall apply (mutatis mutandis) in relation to
such Revised Budget Estimate and the provisions of this clause 14.10 shall apply as often
as may be necessary.
14.11 (Subject to clause 14.12) the Developer shall not be required to reimburse to the Council
the Council Costs to the extent that the Council Costs exceed the Agreed Budget or any
Temporary Budget.
14.12.1 If neither Party shall serve a Cessation Notice upon the other or if the Council shall
continue with the Council Workstream by virtue of the provisions of clause 14.8 then the
Developer shall reimburse to the Council the Council's Costs incurred in connection with
such Council Workstream.
14.12.2 If a Budget Estimate or Revised Budget Estimate is not agreed between the Parties and
is determined by an Independent Person that the budget is greater than the Developer's
Estimate then the Developer shall accept the budget as determined as being the Agreed
Budget for the purposes of the relevant Council Workstream.
14.13.1 If the Developer shall serve on the Council a Cessation Notice and the Council shall
cease to carry out the relevant Council Workstream thereby causing the Council to be in
breach of this Agreement then the Parties hereby agree that the Council shall be deemed
not to be in breach in those circumstances whilst the relevant Council Workstream is
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ceased or suspended pending determination by the Independent Person following service
of the Cessation Notice.
14.13.2 If the Council shall have served a Cessation Notice on the Developer and the Council
shall cease to carry out the relevant Council Workstream then the Developer may at any
time serve further notice on the Council requiring the Council to re-commence work on
the relevant Council Workstream up to a Temporary Budget specified by the Developer in
such notice pending determination of the Agreed Budget in which case the Council shall
(if it is reasonably practicable to do so) commence or carry on such Council Workstream
until such Temporary Budget is exceeded and the Developer shall reimburse the Council
in respect of the Council's Costs up to the amount of the Temporary Budget.
14.13.3 The Council shall re-commence the relevant Council Workstream ceased or suspended
following the Temporary Budget being exceeded as soon as reasonably practicable
following the agreement or determination of the Agreed Budget for the relevant Council
Workstream.
14.14 The Developer shall pay to the Council the Council's Costs within 20 Working Days of
demand.
14.15 To the extent that the Council's Costs are not agreed by the Council and the Developer then
either the Council or the Developer shall be entitled to refer the matter in dispute for
determination in accordance with clause 13 provided that the Developer shall in any event
not withhold payment to the extent that the Developer considers that such costs are
reasonable and proper but on the basis that such payment is subject to the determination
referred to.
14.16 Any reference to the payment or reimbursement by the Developer of the Council's Costs
contained in this Agreement shall include value added tax on such costs which is
irrecoverable by the Council but otherwise shall be exclusive of any valued added tax on
such costs.
14.17 The provisions of this clause 14 do not relate to and are without prejudice to the provisions
of the CPO Indemnity Agreement.
14.18 The Council and the Developer acknowledge that they will operate the Council's Costs
Protocol in good faith and shall seek to operate the Council's Costs Protocol in a manner
that recognises the respective interests of both parties and to resolve any matters in dispute
on a fair and equitable basis without recourse to the Independent Person pursuant to
clause 13.
14.19.1 If a dispute shall arise in respect of any matter relating to the Council's Costs then the
Parties shall seek to resolve the dispute by negotiation in the first instance and either the
Council or the Developer may require a meeting to take place between senior officers by
serving a notice to that effect on the other Party.
14.19.2 If a notice is served on a Party pursuant to clause 14.19.1 then the Council and the
Developer shall procure that there is a meeting at the offices of the Council within
10 Working Days between the respective senior officers to seek a resolution to the
dispute in question.
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14.19.3 For the purposes of this clause 14 the "senior officers" shall mean:
(a) in the case of the Council the Chief Executive, the Deputy Chief Executive or the
Chief Planning Officer and if they are not available the next most senior person
available; and
(b) in the case of the Developer a director.
14.20
14.20.1 The Council and the Developer have agreed that:
(a) Project Co-ordination shall be treated as a Council Workstream and that the
Council's Costs in respect of such Workstream shall be recoverable by the Council
pursuant to this clause 14; and
(b) only a fair and reasonable proportion of the Council's Costs in running the
Integrated Programme Management Office shall be recoverable under this
clause 14 it being acknowledged that each party liaising with the Integrated
Programme Management Office shall be responsible for contributing their own time
and the Council's Costs shall:
(i) only be recoverable against a budget that has been given specific prior
approval by the Developer; and
(ii) reflect the provision of an efficiently managed programme liaison service
(the parties anticipating that this will require the time of 1.5 staff members).
14.20.2 The Council shall procure that Project Co-ordination is provided from time to time as
reasonably necessary or as reasonably requested by the Developer (notwithstanding the
provisions of clause 14.2.2) and clauses 14.7, 14.8 and 14.18 shall not apply in respect
of any Project Co-ordination Workstream.
14.20.3 If the Budget Estimate for the Project Co-ordination Workstream is not agreed then
clause 14.6 shall apply and the Developer shall pending determination pay to the Council
the Developer's reasonable estimate of what the Budget Estimate would be.
14.20.4 The Council and Developer recognise that the Project Co-ordination Workstream will
involve a project manager (who initially will be Karen Mercer). In the event such project
manager (acting reasonably) needs administrative assistance such administrative
assistance (and a budget for it) shall be agreed in advance by the Developer (who shall
act reasonably).
14.20.5 (a) The Developer acknowledges that the Council has outsourced a number of its
functions to RE (Regional Enterprise) Limited who will discharge certain of the
Council's obligations under this Agreement on the Council's behalf as Council's
Consultants.
(b) The Developer acknowledges that the Council may include a fair and reasonable
proportion of any costs that it may incur or which relate to the role performed by RE
(Regional Enterprise) Limited referred to in clause 14.20.5(a) strictly upon the
basis that the costs of RE (Regional Enterprise) Limited:
(i) comply with the definition of "Council's Consultants" and the Council's Costs
Protocol; and
(ii) such costs accord with normal market practice and levels for the payment of
Council's Costs and in particular do not incorporate any additional level of
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mark up to reflect the fact that the Council may have outsourced any
function.
15. HEAD LEASE VARIATION AND TRANSFER OF DISPOSAL LAND, NORTHERN PUBLICREALM ROUTES, SOUTHERN INFRASTRUCTURE PLOTS AND THE DEED OFEASEMENT
15.1 On the Unconditional Date the Council and the Developer shall enter into and complete:
15.1.1 the First Head Lease Variation; and
15.1.2 the Disposal Land Transfer in accordance with the Disposal Land Provisions; and
15.1.3 the Deed of Pre-emption.
15.2 Within 10 Working Days of the Adjustment Date (as defined in Schedule 4) the Council and
the Developer shall enter into and complete the Second Head Lease Variation.
15.3 The Council and the Developer acknowledge that at 3 March 2015 it is not possible to
precisely define the extent of the Disposal Land or the most tax efficient manner of
combining a surrender of that part of the Head Lease comprised in the Disposal Land and in
view of this the Council and the Developer agree subject to the surrender being completed
immediately before or immediately after the Disposal Land Transfer:
15.3.1 there may be a need to adjust the boundaries of the Disposal Land and the Council shall
act reasonably in approving any request by the Developer to adjust such boundaries and
to reflect the same in the Disposal Land Transfer;
15.3.2 the Council shall act reasonably in approving any request by the Developer as to the
most tax efficient means of combining a surrender of that part of the Head Lease
comprised in the Disposal Land;
15.3.3 the Council will use all reasonable endeavours to provide information to the Land
Registry to enable the Developer to achieve registration of the Disposal Land with an
unencumbered freehold title absolute.
15.4.1 Notwithstanding the provisions of clause 15.3 the Developer shall indemnify the Council
against any stamp duty land tax incurred by the Council on the surrender of part of the
Head Lease to the Council in connection with the completion of the Disposal Land
Transfer.
15.4.2 The Developer shall pay to the Council any stamp duty land tax payable by the Council
pursuant to clause 15.4.1 within 10 Working Days of demand by the Council. In the event
that such stamp duty land tax is not paid within the stated time limit the Developer will
indemnify the Council against any interest and penalties incurred by the Council as a
result of any late payment of stamp duty land tax by the Council to HM Revenue
& Customs in respect of the relevant chargeable interest.
15.5.1 In this clause 15 the following expressions shall have the following meanings:
"Appropriate Rights and Reservations"
means rights granted for the benefit of the Disposal Land over the Council's
Retained Land to be contained in the Disposal Land Transfer or reservations out of
the Disposal Land Transfer in favour of the Council's Retained Land which in either
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case are reasonably required by either the Council or the Developer (as the case
may be) and which do not have a material adverse effect on the other Party or (as
far as practicable) the development of the Disposal Land or the Council's Retained
Land (as the case may be) in accordance with the Satisfactory Planning
Permission;
"Council's Retained Land"
means any part of the Council Land (excluding the Disposal Land).
15.5.2 The Council and the Developer shall use their respective reasonable endeavours to
agree the Appropriate Rights and Reservations as soon as reasonably practicable at the
request of either Party and in the event of dispute either Party may refer to the matter for
determination to the Independent Person in accordance with clause 13.
15.6 Northern Public Realm Deeds of Variation
15.6.1 The Developer and Council shall enter into the Northern Public Realm Deeds of Variation
as soon as reasonably practicable following Practical Completion of the Northern Public
Realm Routes as and when each relevant part shall become open and available for
public use.
15.6.2 The Developer shall procure that the parties to the Asset Leases shall enter into the
Northern Public Realm Deeds of Variation and that any mortgagee or chargee consents
to such deeds being entered into in accordance with clause 15.6.1.
15.6.3 The Developer and the Council shall use reasonable endeavours to agree the Northern
Public Realm Deeds of Variation as soon as reasonably practicable after the
Unconditional Date and in the event of dispute either Party can refer the matter to the
Independent Person in accordance with clause 13.
15.8 Deeds of Easement
15.8.1 At any time after Practical Completion of any element of the Critical Infrastructure within
10 Working Days of a request by the Council (and subject to clause 15.8.2) the
Developer shall grant to the Council a Deed of Easement in respect of the relevant part of
the Critical Infrastructure.
15.8.2 The Developer and the Council shall use reasonable endeavours to agree as soon as
reasonably practicable any of the documents referred to in clauses 15.6, 15.7 and
15.8.1, acting reasonably and in the event of dispute either Party may refer the dispute to
the Independent Person in accordance with clause 12.
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15.9 Retail Park Land
.
15.10 SDLT indemnity
The Developer shall indemnify the Council against any stamp duty land tax incurred by the
Council by virtue of it entering into:
15.10.1 the First Head Lease Variation; and
15.10.2 the December 2010 Deed of Variation.
15.11 SDLT payment
The Developer shall pay to the Council any stamp duty land tax payable by the Council
pursuant to clause 15.10 within 10 Working Days of demand by the Council. In the event
that such stamp duty land tax is not paid within the stated time limit the Developer will
indemnify the Council against any interest or penalties incurred by the Council as a result of
any late payment of stamp duty land tax by the Council to HM Revenue & Customs in
respect of the relevant chargeable interest.
16. PUBLIC SECTOR BODY REQUIREMENTS
16.1 Statutory powers
16.1.1 The Council enters into this Agreement pursuant to section 2 of the Local Government
Act 2000 and section 111 of the Local Government Act 1972 and all other relevant
powers including sections 226, 227 and 233 of the Town and Country Planning Act 1990.
16.1.2 Nothing contained in this Agreement or any ancillary or supplemental document shall
prejudice or affect any of the statutory rights, powers, discretions, obligations and/or
duties for the time being vested in or imposed on the Council as local or other statutory
authority and all such rights, powers, obligations and duties shall, in relation to the Site, or
any development of it or the matters provided for in this Agreement, be enforceable and
exercisable by the Council as fully and freely as if the Council were not the owner of the
Site or any part of it and/or this Agreement or any ancillary or supplemental document
had not been executed.
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16.1.3 Any approval, consent, direction or authority given by the Council as local or other
statutory authority shall not be or be deemed to be an approval, consent, direction or
authority given under this Agreement and vice versa.
16.1.4 Notwithstanding any other provisions of this Agreement the Council shall not be obliged
to do or omit to do anything the doing or omission of which would or may (in the
reasonable opinion of the Council) be unlawful or ultra vires or constitute
mal-administration by the Council.
16.2 Anti-corruption provision
16.2.1 Without prejudice to any other provision of this Agreement the Council shall be entitled to
serve a Termination Notice upon the Developer to terminate this Agreement and recover
from the Developer the amount of any loss resulting from such termination if the
Developer shall have offered or given or agreed to give to any person any gift or
consideration of any kind as an inducement or reward for doing or forbearing to do or for
having done or forborne to do any action in relation to the obtaining or execution of this
Agreement or any other contract with the Council or for showing or forbearing to show
favour or disfavour to any person in relation to this Agreement or any other contract with
the Council or if the like acts shall have been done by any person acting on its behalf and
with the knowledge of the Developer or if in relation to any contract with the Council the
Developer shall have committed any offence under the Public Bodies Corrupt Practices
Act 1889 and the Prevention of Corruption Act 1916 (and/or any other relevant laws
relating to the prevention of corruption in the discharge of public functions) or shall have
given any fee the receipt of which is an offence under section 117(2) of the Local
Government Act 1972.
16.2.2 The Developer shall ensure that all persons engaged in relation to the BX Site and/or the
Development or by the Developer or on its behalf are aware of the terms of this
clause 16.2.
16.3 Freedom of Information Act 2000 and Environmental Information Regulations 2004
16.3.1 The Developer acknowledges that the Council is a public authority as defined by the
FOIA and/or EIR and therefore recognises that any information relating to this Agreement
(including this Agreement itself) or otherwise relating to the Developer however held or
recorded by the Council or held by the Developer on behalf of the Council may be the
subject of a request for information and possible disclosure under the FOIA and/or EIR.
16.3.2 The Developer shall, and shall procure that its respective employees, sub-contractors
and agents shall, assist the Council in complying with their respective obligations under
the FOIA and/or EIR as reasonably necessary, including reasonable assistance in
gathering information promptly to enable the Council to respond to a request for
information within the timescales set out in section 10 of the FOIA or Regulation 5 of the
EIR as may be relevant.
16.3.3 The Developer shall, and shall procure that its employees, sub-contractors and agents
shall, transfer to a representative of the Council (or such other person as may be notified
by the Council to the Developer) any information they hold on behalf of the Council in
respect of this Agreement as soon as practicable, and in any event, within five Working
Days of the Council requesting such information.
16.3.4 The Council shall inform the Developer of any request for information which relates to this
Agreement whether held by the Council or held by the Developer on the Council's behalf
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as soon as reasonably practicable after receipt and in any event, within five Working
Days of receiving the request and shall consult with the Developer as to the Council's
response to the request for information and shall take the Developer's views into account
before responding to the request.
16.3.5 The Council acknowledges that the Developer believes that the information in
Schedule 12 is commercially sensitive and, if disclosed, would be likely to prejudice the
Developer's commercial interests. Without prejudice to clause 16.3.4 the Council shall
not disclose such information where it is exempt.
16.3.6 The Developer and the Council are to procure that their professional advisers and agents
are fully instructed and required to comply with this clause 16.3.
16.3.7 This clause 16.3 shall survive the termination of this Agreement.
16.3.8 For the purposes of this clause 16.3:
"EIR"
means the Environmental Information Regulations 2004 (as amended from time to
time) and any related guidance as issued by the Department of Environment and
Food and Rural Affairs and/or the Information Commissioner;
"FOIA"
means the Freedom of Information Act 2000 (as amended from time to time) and
any subordinate legislation made under it or any superseding enactment and
regulations, and any guidance issued by the Ministry of Justice, (or Government
departments superseding these in relation to FOIA legislation) or the Information
Commissioner;
"request for information"
means a request for information under the FOIA and/or EIR, whether or not
expressly made by any person, to the Council.
17. NOTICES
17.1 Notices
Any notice or document to be given by a Party to another Party pursuant to the terms of this
Agreement shall be in writing and signed by or on behalf of the Party giving it (but in the case
of the Council signed by the Head of Legal Services or such other officer of the Council as
such notice or document states has authority to sign the same) and which shall be delivered
or sent by registered post or facsimile transmission to the recipient Party at the recipient
party's address appearing in this Agreement or such other address as a party shall have
previously notified all other parties of in writing.
17.2 Specific notice requirements
17.2.1 Any notice served upon the Developer shall only be validly served if:
(a) it shall be served upon the Developer for the attention of the Company Secretary at
Hammerson (Brent Cross) Limited and Mr John Brophy at Standard Life
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Investments Limited (or such other individual nominated by Standard Life
Investments Limited); and
(b) it shall be served on the same date (or within two Working Days thereafter) and by
the same means of delivery to the Developers' Solicitors.
17.2.2 In the case of any notice served upon the Council such notice shall only be valid if such
notice is served upon the Council (marked for the attention of Head of Legal Services)
and on the same date and by the same means of delivery a copy of such notice is served
upon the Council's Solicitors.
17.3 Methods and time of service
For the purposes of this Agreement any notice or document shall be deemed to be served:
17.3.1 if delivered at the time of delivery;
17.3.2 if posted at the expiration of 48 hours after the envelope containing the same shall have
been put in the post; and
17.3.3 if sent by facsimile transmission on despatch,
provided that if a facsimile shall be despatched after 5 p.m. or a delivery by hand is delivered
after 5 p.m. hours then such document shall be deemed to be served on the next Working
Day.
17.4 Proof of service
In proving such service it shall be sufficient to prove that delivery was made or that the
envelope containing such notice or document was properly addressed and posted as a
pre-paid first class registered letter or the sender of the facsimile transmission has its copy
with the "Transmission" slip.
17.5 Email and fax
Service of any notice by electronic mail or by facsimile does not constitute service of a notice
for the purposes of this Agreement.
17.6 Addresses for service
Subject to the provisions of clause 17.7 the addresses of the Parties for the purpose of this
clause are the addresses of the Parties set out in page 1 of this Agreement.
17.7 Change of address
A Party may notify the other Party to this Agreement of a change to its name, relevant
addressee and address for the purposes of this clause 17, provided that, such notice shall
only be effective on:
17.7.1 the date specified in the notice as the date on which the change is to take place; or
17.7.2 if no date is specified or the date specified is less than five Working Days after the date
on which notice is given, the date immediately following five Working Days after notice of
any change has been given.
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17.8 Address for service of proceedings
JTC and KB(J) appoint Standard Life Investments of 1 George Street, Edinburgh EH2 2LL
(for the attention of Mr John Brophy (fax number: 0131 274 8101) as their agent for the
service of any proceedings relating to this Agreement or such other agent in the United
Kingdom notified (with an address) to the Council from time to time by the said companies.
18. GOOD FAITH
The Parties will act at all times in all respects with good faith towards each other in order to
achieve a mutually satisfactory conclusion to all matters contemplated by this Agreement.
19. NO PARTNERSHIP
This Agreement does not create a partnership between the Parties.
20. NO AGENCY
20.1 The Council and the Developer are not and will not at any time hold themselves or permit
themselves to be held out as the agent of any of the others and no Party has the authority to
bind the other or hold itself out to a Third Party as having such authority.
20.2 All contracts and agreements entered into by the Council or the Developer with a Third Party
pursuant to this Agreement will be contracts and agreements between the relevant Party as
principal and the relevant Third Party and the other Parties to this Agreement will have no
obligation or liability in respect of such contracts and agreements (save as may be expressly
provided in this Agreement or the CPO Indemnity Agreement).
21. ENTIRE AGREEMENT
21.1 The Parties acknowledge that subject to clause 21.2 this Agreement and the matters
mentioned in clause 21.2 forms part of the entire agreement between them relating to its
subject matter.
21.2 This Agreement shall for the purposes of section 2 of the Law of Property (Miscellaneous
Provisions Act 1989 or otherwise) incorporate any additional provisions and any variation to
this Agreement contained in any correspondence between the Council or the Developer or
the parties or their respective solicitors or any supplemental documentation between the
Council and the Developer or the Parties that in each case make express reference to this
clause.
21.3 The Developer and the Council acknowledge and agree that in entering into this Agreement,
neither of them relies on and shall have no remedy in respect of any statement,
representation, warranty, collateral agreement or other assurance (whether made negligently
or innocently) of any person (whether party to this Agreement or not) other than as expressly
set out in this Agreement or the documents incorporated in or annexed to it or in any written
replies which the Council's Solicitors or the Developers' Solicitors have given to any written
enquiries raised by the other Party's solicitors in relation to any relevant land transaction
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before 3 March 2015. Nothing in this clause shall, however, operate to limit or exclude any
liability for fraud.
22. RIGHTS OF THIRD PARTIES
Unless expressly stated otherwise, nothing in this Agreement will create any rights in favour of
any person pursuant to the Contracts (Rights of Third Parties) Act 1999 save for the rights
granted to a BX Funder by clause 6.5.3 of this Agreement.
23. CONSTRUCTION CONTRACTS (ENGLAND AND WALES) EXCLUSION ORDER 1998
This Agreement is a "Development Agreement" for the purposes of article 6 of the
Construction Contracts (England and Wales) Exclusion Order 1998.
24. PERSONAL OBLIGATIONS LATE PAYMENT AND NO SET-OFF
24.1 The obligations of the Developer in this Agreement are personal to the Developer but without
prejudice to the provisions of clause 9 (as to dealings) and the liability of any other person in
respect of the obligations under the Agreement from time to time.
24.2 Any sum payable by any Party to another Party under this Agreement or to any Third Party
shall be paid without any legal or equitable set-off, counterclaim or deduction.
24.3 If any sum due to any Party under this Agreement shall not be paid within 20 Working Days
of the due date of payment, interest shall be paid on demand on the overdue sum at the
Contract Rate from 20 Working Days after the due date for payment until the date of actual
payment (as well after as before judgment).
25. INDEMNITIES
Where under this Agreement the Indemnifier agrees to indemnify the Indemnified Party against
liability arising from any claim made by a Third Party the following provisions of this clause shall
have effect provided that this clause shall not affect the operation of the CPO Indemnity
Agreement.
25.1 The Indemnified Party shall:
25.1.1 give notice in writing of the claim to the Indemnifier as soon as reasonably practicable
after receiving notice of the claim;
25.1.2 provide to the Indemnifier on reasonable request from time to time any information and
documentation relating to the claim as may be reasonably required;
25.1.3 not make any settlement or compromise in relation to any claim without the prior consent
in writing of the Indemnifier but subject to clause 25.2; and
25.1.4 give the Indemnifier reasonable opportunity (having regard to the circumstances then
prevailing) to make representations to the Indemnified Party in respect of the Claim and
the Indemnified Party shall take proper and reasonable account of the representations.
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25.2 Any indemnity in respect of a claim by a Third Party will not apply to the extent that there is
no legal liability on the part of the Indemnified to pay any costs, damages, expenses,
liabilities and losses claimed by the Third Party.
25.3 Any dispute as to whether a Party is acting reasonably under this clause shall be referred for
determination by an Independent Person acting under clause 13.
26. GOVERNING LAW AND JURISDICTION
26.1 This Agreement shall be governed interpreted and construed in accordance with English law
and subject to clause 13 (or as otherwise expressly provided) the parties give the courts of
England exclusive jurisdiction to settle any dispute which may arise in connection with the
validity effect interpretation or performance of or the legal relationships established by this
Agreement or otherwise arising in connection with this Agreement.
26.2 Each Party irrevocably consents to any process in any legal action or proceedings arising
out of or in connection with this Agreement being served on it in accordance with the
provisions of this Agreement relating to service of notices. Nothing contained in this
Agreement shall affect the right to serve process in any other manner permitted by law.
27. REPRESENTATIONS AND WARRANTIES
(Subject always to clause 16.1) the Council, and the Developer represent and warrant to each
other that:
27.1 their execution of this Agreement has been validly authorised and the obligations expressed
as being assumed by them under this Agreement constitute valid legal and binding
obligations enforceable against them in accordance with their terms save in relation to any
obligations contained in this Agreement the performance of which shall be unlawful and/or
ultra vires; and
27.2 that all consents required in connection with the execution delivery issue or validity of this
Agreement or enforceability of this Agreement by them have been obtained and have not
been withdrawn.
28. OPINION LETTER
28.1 JTC and KB(J) shall procure that on the date hereof the Opinion Letter is provided and
released unconditionally to the Council signed by the relevant solicitors.
28.2 Any Novation Party which is an overseas company shall procure from a reputable legal
counsel approved by the Council an opinion letter substantially in the form of the Opinion
Letter (mutatis mutandis) with such amendments as the other Novation Parties shall
reasonably require and such opinion letters to be provided on the date of the Novation
Agreement and shall be released unconditionally to the other Novation Parties.
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29. COUNCIL'S OBLIGATIONS
The Council:
29.1 shall observe and perform the obligations on its part referred to or contained in this
Agreement;
29.2 shall not complete any transaction which would be inconsistent with this Agreement to the
extent it would adversely affect the Council's ability to perform its obligations under this
Agreement;
29.3 shall not (other than by way of a Permitted Council Disposal) Dispose of any part of the
Council Land without the prior approval of the Developer;
29.4 shall not carry out any "material operation" (as defined by section 56 of the Town and
Country Planning Act 1990) so as to implement the Satisfactory Planning Permission in
respect of the Site;
29.5 will upon request deduce such title to the Council Land as is reasonably necessary in order
for the Developer to progress the satisfaction of the Conditions and the implementation of
the Development;
29.6 shall grant the Developer a licence to enter a Required Access Area in accordance with the
provisions of Schedule 2 and the Council and the Developer will perform their respective
obligations on its part contained in Schedule 2; and
29.7 shall be responsible for establishing a physical and manned office in order to coordinate the
planning and carrying out of the Development (to the extent anticipated by the terms of this
Agreement), the Southern Development and the Station Delivery and shall liaise and make
representations to the Developer with regard to the Development and the Programme and
which shall have particular responsibility for facilitating discussion and agreement between
all relevant parties and stakeholders.
30. VALIDITY
If at any time any part or provision of this Agreement shall become or be held to be of no effect
or unenforceable whether by operation of law or by reason of uncertainty or otherwise then:
30.1 this shall not affect the validity of the remainder of this Agreement which shall remain in full
force and effect; and
30.2 the Parties will substitute provisions in a form as similar to the offending provisions as is
possible without rendering them illegal invalid or unenforceable.
31. CUMULATIVE REMEDIES
No remedy conferred upon any Party pursuant to this Agreement is exclusive of any other
remedy in this Agreement or by law provided or permitted, but each is to be cumulative.
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32. VARIATIONS
This Agreement may only be varied by an agreement signed by the Council and the Developer
or their solicitors on their behalf and such variation may be prepared in duplicate or in original
and counterpart.
33. VALUE ADDED TAX
33.1 Sums payable and other consideration provided under this Agreement for the supply of
goods and services are exclusive of VAT chargeable in respect of the payment or other
consideration given and if one Party ("Supplier") makes a supply to another ("Recipient")
for VAT purposes pursuant to this Agreement or any document entered into pursuant to this
Agreement, the Recipient shall pay the Supplier (in addition to any other consideration for
that supply) a sum equal to the amount of VAT which is or becomes chargeable on that
supply.
33.2 It shall be a condition of payment of VAT by the Party liable for the payment that it receives a
VAT invoice addressed to it in respect of the payment.
33.3 Without prejudice to clause 33.1 and clause 33.7, in respect of the Agreed Funding and the
TIF Funding (the "Funding Sums") the Developer considers that it may need to charge the
Council VAT and, if it does so charge the Council VAT, it shall issue a VAT invoice for the
Funding Sums but the Council shall only be required to pay VAT on the Funding Sums if,
and to the extent that, the Council is able to reclaim or obtain credit for such VAT as input tax
or pursuant to section 33 Value Added Tax Act 1994, and shall only be required to make
such payment of VAT to the Developer within 5 Working Days of receiving such reclaim or
credit from HM Revenue & Customs.
33.4 Subject to clause 33.6, where the Council is unable to reclaim or obtain credit for some or all
of the VAT on the Funding Sums (the "Irrecoverable Amount"), the maximum amount
payable by the Council (as set out in the definitions of TIF Funding and Agreed Funding)
shall be treated as including an amount equal to the Irrecoverable Amount.
33.5 The Council warrants that as at the date of the 2016 Variation:
33.5.1 it has opted to tax the BX Site and has not revoked such option and has provided a full
copy of the same to the Developer; and
33.5.2 it reasonably believes that it would be entitled to reclaim or obtain credit for VAT charged
by the Developer in respect of the Funding Sums.
33.6 The Parties agree to act together in good faith to minimise any irrecoverable VAT or costs
associated with the Developer funding VAT under clause 33.4 including:
33.6.1 the Council using all reasonable endeavours to recover any VAT on the Funding Sums as
soon as reasonably practicable
33.6.2 the Council making all reasonable efforts (incorporating the reasonable and prompt
comments of the Developer) to dispute any decision assessment or determination by HM
Revenue & Customs that the VAT incurred by the Council is not properly recoverable by
the Council as input tax or pursuant to section 33 Value Added Tax Act 1994, where in
the opinion of both parties (acting reasonably) there are reasonable grounds to do so;
and
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33.6.3 as an alternative, contending that the Funding Sums are grant funding and therefore
outside the scope of VAT, where in the opinion of both parties (acting reasonably) there
are reasonable grounds to do so
but the Council shall not be required to appeal any decision assessment or determination to
the Tax Tribunal.
33.7 If one Party ("Party A") is required by the terms of this Agreement to reimburse another
Party ("Party B") for any cost, expense or fee, Party A shall reimburse Party B for the full
amount of such cost or expense or fee including any part of it which represents VAT, save to
the extent that Party B is entitled to credit or repayment in respect of that VAT from HM
Revenue & Customs.
34. CONFIDENTIALITY
34.1 No Party is without the prior written consent of the other Party to knowingly disclose or
publish or permit or cause to be disclosed or published any details of this Agreement or of
the Collaboration Agreement save only:
34.1.1 to the extent necessary in order to comply with the requirements of the London Stock
Exchange;
34.1.2 insofar as is reasonably necessary to such of the discloser's professional advisers or
auditors as are under a professional duty of confidentiality (from which the discloser shall
not release such adviser or auditor) in relation to information about clients' affairs;
34.1.3 to HM Revenue & Customs or any rating authority where required to do so;
34.1.4 to the extent necessary to effect noting or registration at the Land Registry by means only
of a unilateral notice but without sending this Agreement or any copy of it to the Land
Registry;
34.1.5 to the extent necessary to comply with statutory obligations (and in particular to comply
with the FOIA and/ or EIR as provided for in clause 16.3);
34.1.6 to the extent necessary for audit purposes, which shall be limited to:
(a) the examination and certification of the Council's accounts;
(b) an examination pursuant to the Local Government Finance Act 1982 (and any
other Legislation relating to the inspection, examination and auditing of the
Council's accounts); and
(c) an examination pursuant to the Local Government Act 1999 of the economy,
efficiency and effectiveness of which the Council has performed its functions;
34.1.7 to the extent necessary to obtain professional advice in relation to the determination of
any dispute by an Independent Person under clause 13 subject to the professional
concerned undertaking to keep the same confidential on the same terms mutatis
mutandis of this clause 34;
34.1.8 to the extent ordered to do so by a court, inspector or any other competent authority;
34.1.9 pursuant to any planning, CPO or other public inquiry where it is reasonably necessary to
do so in order to promote or defend the Council's or the Developer's case in such inquiry
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or otherwise optimise the outcome in accordance with the Shared Development
Objective;
34.1.10 in connection with any Disposal or assignment of this Agreement to a Third Party or a
Funder;
34.1.11 in relation to the Developer in briefings to shareholders and potential shareholders or
fund managers to those shareholders;
34.1.12 to the extent as is reasonably necessary to any prospective purchaser, tenants, investors
or BX Funder; or
34.1.13 to a prospective Southern Developer provided that:
(a) only a redacted version of this Agreement shall be provided which excludes
clauses 15.1 to 15.3, Schedule 4 and all related definitions and operative
provisions;
(b) such disclosure shall only be made to a final shortlist of prospective Southern
Developer's and shall not be disclosed as part of a wider marketing exercise;
(c) before such disclosure the Council provides the Developer with a copy of a
non-disclosure agreement (the form of which has been previously approved by the
Developer) countersigned by any such prospective Southern Developer addressed
to the Developer.
34.2 This clause 34 shall not apply to information that a Party can demonstrate has already come
into the public domain otherwise than as a result of a breach of this clause 34.
34.3 The Developer and the Council are to procure that their professional advisers and agents are
fully instructed and required to comply with these restrictions on disclosure as set out in this
clause 34 (which particularly includes any Council's Consultant referred to at paragraph 9
or Part 6 of Schedule 1).
34.4 This clause 34 shall survive the termination or expiry of this Agreement.
35. INFRASTRUCTURE WORKS
Prior to the date being 5 Working Days after the Unconditional Date (time being of the essence)
the Developer may give notice (or notices) to the Council identifying (acting reasonably) the
land to which this clause 35 shall apply (the "Relevant Infrastructure Land") being land within
the Council Land on which the roadways, service media and other utilities within the public
highway and/or intended public highway are to be located and if no such notice is given this
clause 35 shall cease to apply from the date being 5 Working Days after the Unconditional Date
and any dispute regarding the extent of the Relevant Infrastructure Land shall be determined by
an Independent Person in accordance with clause 13.
35.1 If and insofar as reasonably required by the Developer, the Council (in its capacity as
landowner of the Relevant Infrastructure Land) shall as soon as the Developer requires enter
into any statutory agreements relating to the dedication or adoption of all roads ways and/or
provision and/or adoption of all service media and other utilities constructed and/or to be
constructed in connection with the Development (including all Infrastructure Agreements) in
the Relevant Infrastructure Land, subject to the relevant terms having been approved by the
Developer and the Council.
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35.2 The Developer acknowledges that the Council shall not be required under clause 35.1 to
enter into any agreement so as to give any obligation in relation to the carrying of works or
any guarantee in respect of the Developer's obligations or otherwise involving any potential
liability on the Council's part.
35.3 The Council shall not be permitted to require payment by way of consideration from the
Developer for entering into any agreement for the purposes referred to in clause 35.1 (other
than the Council's Costs).
35.4 If and insofar as reasonably required by the Developer the Council (in its capacity as
landowner of the Relevant Infrastructure Land) so as to facilitate adoption, dedication or any
disposition of any interest (including temporary rights of access) of the Relevant
Infrastructure Land required by the relevant statutory undertaker) shall enter into any
Infrastructure Agreements in connection with the development of the Relevant Infrastructure
Land subject to the relevant terms having previously been approved by the Developer and
the Council.
35.5 The Council shall not require payment by way of consideration from the Developer for
entering into any Infrastructure Agreement for the purposes referred to in clause 35.4.
35.6 Where the Council and/or the Joint Venture Entity (as appropriate) shall be party to any
Infrastructure Agreement, the Developer shall indemnify the Council and/or the Joint Venture
Entity (as appropriate) in respect of any breach by the Developer or (unless the Council or
the Joint Venture Entity (as appropriate) has a direct remedy against the relevant statutory
undertaker pursuant to any relevant Infrastructure Agreement) the relevant statutory
undertaker of its obligations under any Infrastructure Agreement.
36. RELEASE OF THE DEVELOPER
36.1 The Council will on reasonable request from the Developer enter into a release in the form
referred to in clause 36.2 upon the adjustment of the Annual Rent Percentage pursuant to
Paragraph 4 of Part 3 of Schedule 4 or if there is no reasonable prospect of the Council
being entitled to such an adjustment of the Annual Rent Percentage.
36.2 The form of release shall be in such form as the Council shall reasonably approve in relation
to the liability of the Developer but shall not include any release in respect of any antecedent
breaches in respect of which the Council has served written notice on the Developer prior to
the receipt of any request for such a release and the Council shall not be required to enter
into any form of release if at the date of the application by the Developer there are any
outstanding material and continuing breaches of this Agreement in respect of which the
Council has served written notice on the Developer within 10 Working Days of the request
for a release.
36.3 For the avoidance of doubt the Developer may make any number of applications under this
clause 36.
36.4 The Council shall act promptly in respect of an application for release from the Developer
and shall confirm its approval to the release of the Developer or its refusal to do so
specifying in detail the reasons why it is refusing to release the Developer within 10 Working
Days of a written application for a release.
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36.5 Any dispute in respect of this clause 36 may be referred by either Party to an Independent
Person pursuant to clause 13 for determination.
37. APPROPRIATION OF RELEVANT PARTS OF COUNCIL LAND
37.1 The Council shall (insofar as the Council shall not have previously done so and upon
reasonable request of the Developer) as soon as reasonably practicable in respect of any
Council Land:
37.1.1 request and use all reasonable endeavours to get the Council (in its capacity as a
principal council) to appropriate for planning purposes the relevant part or parts of the
Council Land (as shall not at such time be held by the Council for planning purposes)
which is or are no longer required for the purpose for which it is held at the date of such
request;
37.1.2 insofar as reasonably practicable use all reasonable endeavours to make such Council
Land no longer required for the existing purpose for which it is held; and
37.1.3 so as to enable an appropriation of such land for planning purposes to be made by the
Council as principal council pursuant to section 122 of the Local Government Act 1972
(or any similar or subsequent provision replacing it).
37.2 The Council shall keep the Developer fully informed as to its pursuit of its obligations
contained in this clause 37.
38. LIVING BRIDGE AND PEDESTRIAN BRIDGE PRINCIPLES
The Parties agree to perform their respective obligations contained in Schedule 9.
39. CONTRIBUTION TOWARDS PROCUREMENT COSTS AND GROUND INVESTIGATIONS
The Parties agree to perform their respective obligations contained in Schedule 10.
40. WHITEFIELD ESTATE RELOCATION
The Parties agree to perform their respective obligations contained in Schedule 11.
41. JOINT PLANNING DOCUMENTS
The Parties agree to perform their respective obligations contained in Schedule 15.
42. PRIMARY SUB-STATION
42.1 The Parties agree to perform their respective obligations contained in Schedule 16.
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42.2 The Council will acting reasonably and without delay consider proposals from the Developer
to re-locate the Primary Sub-Station (as defined in Schedule 16) from the Primary Sub-
Station Plot (as defined in Schedule 16) provided that such a proposal:
42.2.1 does not diminish the Developer's obligations in Schedule 16;
42.2.2 includes measures to ensure that the power supplies for the benefit of the Southern
Development as referred to at paragraph 3.2.2 and 3.3 of Schedule 16 are available
(and can be relied on as being available) when they are required;
42.2.3 provides that the Primary Sub-Station Plot will not be otherwise disposed of or developed
until such time as the Primary Sub-Station has been installed on the alternate location
and the required level of power is being delivered to the Southern Development from the
alternate location to the Primary Sub-Station Plot in accordance with the obligations on
the Developer in Schedule 16; and
42.2.4 includes an agreement by the Developer to be responsible for all additional costs of
running the supplies from the proposed new location of the Primary Sub-Station to the
land shown edged green on Plan 15 and subject to paragraph 6.3 of Schedule 16 the
Phase 1 South Plots (as defined in Schedule 16)
and, if approved, the Council, the Developer and the Southern Developer shall enter into an
agreement (in a form to be agreed between the parties, each acting reasonably with the
Council procuring that the Southern Developer enters into such agreement) to document
such proposal.
42.3 For the avoidance of doubt the terms of clause 3 shall not apply to this clause 42.
43. RETAIL RESTRICTION
43.1 Historic Deeds of Restrictive Covenant
43.1.1 On or before the date falling one month from and including the date of the 2016 Variation:
(a) The Council shall notify the Developer of any land (other than the land listed at
limbs (a) and (b) of the definition of Existing Council Land) acquired by the Council
or any Joint Venture Entity before the date of the 2016 Variation whether by
contract or pursuant to a CPO in connection with the proposed development of the
Southern Development (for the avoidance of doubt excluding any land acquired for
Council Purposes); and
(b) the Council and the Developer shall enter into a deed of restrictive covenant (in the
form mutatis mutandis of the deed of restrictive covenant entered into pursuant to
this Agreement on 4 June 2015 as varied by 2016 Variation) in relation to the land
listed at limb (b) of the definition of Existing Council Land and the land listed at limb
(c) of the definition of Existing Council Land; and
(c) the Council shall warrant and confirm to the Developer that as at the date of the
2016 Variation the only land which it or any Joint Venture Entity has acquired on
the Southern Site in connection with the proposed development of the Southern
Development (for the avoidance of doubt excluding any land acquired for Council
Purposes) comprises the Existing Council Land.
43.1.2 Following the commencement of Above Ground Development the Developer (at the
Council's cost) will enter into a Deed of Release in respect of the parcel of land upon
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which such Above Ground Development has commenced within 10 Working Days of
request from the Council.
43.1.3 The Developer will enter into a Deed of Release where any of the Historic Deeds of
Restrictive Covenant are in breach of the provisions of the CML Handbook within 10
Working Days of request from the Council.
43.1.4 If this Agreement is terminated, then the Developer will enter into a Deed of Release of
the Historic Deeds of Restrictive Covenant within 10 Working Days of request from the
Council.
43.1.5 In respect of any Historic Deeds of Restrictive Covenant, on or before the date falling one
month from and including the Decoupled Date:
(a) the Council and the Developer shall enter into a New Deed of Restrictive Covenant
in respect of the Existing Council Land; and
(b) subject to compliance with paragraph (a) above the Council and the Developer
shall enter into a Deed of Release in relation to the Historic Deeds of Restrictive
Covenant.
43.1.6 Subject to completion of the documentation referred to in clauses 43.1.5(a) and 43.1.5(b)
the Developer consents to the Council making an application on Land Registry Form RX4
(or any replacement form) to remove all restrictions on title relating to the Historic Deeds
of Restrictive Covenant and the Developer shall provide all reasonable assistance in
dealing with any requisitions raised by the Land Registry at its own cost.
43.2 Appointment of the Restriction Agent
On or before the date falling three months from and including the date of the 2016 Variation
each of the parties comprising the Developer shall irrevocably appoint the same Restriction
Agent to act as their agent for the purposes of the Phase Proposal Consent Submission
Powers and the Council and the Developer irrevocably agree and covenant that following the
appointment of the Restriction Agent each New Deed of Restrictive Covenant entered into
pursuant to clause 43.1.5 and/or from time to time pursuant to clause 43.4 of this
Agreement shall be read and construed as if:
(a) all the Phase Proposal Consent Submission Powers were the Restriction Agent's
only;
(b) all notices to be served on the Developer shall be valid if served on the Restriction
Agent only; and
(c) all notices to be served by the Developer shall be valid if served by the Restriction
Agent only;
and each of the parties comprising the Developer agrees to ratify and confirm whatever the
Restriction Agent shall do or proffer to do by virtue of the powers conferred by this clause.
43.3 Nomination of New Agent
43.3.1 On or before the date falling eighteen months from and including the date of the 2016
Variation each of the parties comprising the Developer shall irrevocably appoint the same
New Agent to act as their agent for all purposes connected with each New Deed of
Restrictive Covenant entered into pursuant to clause 43.1.5 and/or from time to time
pursuant to clause 43.4 of this Agreement failing which each party comprising the
Developer shall be deemed to have appointed the Restriction Agent.
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43.3.2 Following the appointment or deemed appointment of the New Agent the Developer
irrevocably agrees and covenants that each New Deed of Restrictive Covenant entered
into pursuant to clause 43.1.5 and/or from time to time pursuant to clause 43.4 of this
Agreement shall be read and construed as if:
(a) all the covenants, obligations, powers, discretion and rights afforded to the
Developer (either directly or through the Restriction Agent) pursuant to any and all
Deeds of Restrictive Covenant entered into pursuant to clause 43.1.5 and/or from
time to time pursuant to clause 43.4 of this Agreement were the New Agent's only;
(b) all notices to be served on the Developer shall be valid if served on the New
Agent only; and
(c) all notices to be served by Developer shall be valid if served by the New Agent
only;
and each of the parties comprising the Developer agrees to ratify and confirm whatever
the New Agent shall do or proffer to do by virtue of the powers conferred by this clause
43.3.3 Upon the appointment or deemed appointment pursuant to clause 43.3.1 of a New Agent
the powers granted to the Restriction Agent pursuant to clause 43.2 shall immediately
cease and determine.
43.4 Subsequent Deeds of Restrictive Covenant
43.4.1 If the Council or any Joint Venture Entity acquires any BXS Land, the Council shall or
shall procure that the Joint Venture Entity shall (as the case may be) notify the Developer
(either directly or by notifying the Restriction Agent or New Agent (as the case may be))
within 5 Working Days of such acquisition.
43.4.2 Within 15 Working Days of the notification given pursuant to clause 43.4.1, the
Developer shall and the Council shall or shall procure that any Joint Venture Entity shall
(as the case may be) enter into a New Deed of Restrictive Covenant in relation to the
relevant land and in the period from and including the acquisition of such BXS Land to
and including completion of the New Deed of Restrictive Covenant in accordance with
this clause the Developer and the Council shall comply with the terms of such New Deed
of Restrictive Covenant to which the Council is a party as if this had been completed.
43.4.3 The Council shall comply with the terms of any deeds of restrictive covenant that are
entered into by the Council pursuant to the terms of this Agreement.
43.5 Submissions pursuant to the New Deeds of Restrictive Covenant
43.5.1 The Developer and Council acknowledge and agree that the Council and/or any Joint
Venture Entity will be entering into multiple New Deeds of Restrictive Covenant pursuant
to this clause 43 and accordingly the Council and/or any Joint Venture Entity (as the
case may be) shall be permitted to make on each occasion a single submission pursuant
to such New Deeds of Restrictive Covenant that relate to land affected by several New
Deeds of Restrictive Covenant and the Parties shall all work together to deal with and
give effect to such submissions as efficiently as reasonably possible and (as applicable)
the Council shall procure that the Joint Venture Entity and the Developer shall and shall
procure that the Restriction Agent and/or the New Agent (as the case may be) shall
conduct themselves in the same manner.
43.5.2 As part of any submissions made by the Council and/or any Joint Venture Entity (as the
case may be) pursuant to the New Deeds of Restrictive Covenant the Developer and
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Council acknowledge and agree that the Council and/or any Joint Venture Entity (as the
case may be) may include in such submissions areas within the Existing Council Land
and/or the BXS Land in which the Council and/or any Joint Venture Entity (as the case
may be) does not have an interest at the time of the relevant submission(s) and:
(a) the Developer shall and shall procure that the Restriction Agent and/or the New
Agent (as the case may be) shall in dealing with such submissions treat such areas
as if the Council and/or any Joint Venture Entity (as the case may be) did have an
interest in such areas that were subject to New Deeds of Restrictive Covenant; and
(b) the terms of clause 43.1.5 and/or clause 43.4 shall be read and construed to refer
to the form of New Deed of Restrictive Covenant (if any) required to be entered into
by the Council and/or any Joint Venture Entity (as the case may be) following the
conclusion of such submission(s) and acquisition of the relevant areas.
43.5.3 Each of the parties comprising the Developer shall appoint the same firm of solicitors for
the purposes of limb (b) of the definition of "Warning Requirements" in each and every
New Deed of Restrictive Covenant entered into pursuant to clause 43.1.5 and/or from
time to time pursuant to clause 43.4 of this Agreement
43.6 Good faith
The Council and the Developer agree to act in accordance with the principles of absolute
good faith in all their dealings with each other in relation to this clause 43 and the Developer
shall procure that the Restriction Agent and/or the New Agent shall act in the same manner
and the Council shall procure that the Joint Venture Entity shall act in the same manner
43.7 Provision of copy Agreement
The Developer hereby consents to the Council and/or the Joint Venture Entity and/or the
Southern Developer disclosing a copy of this Agreement to any party in connection with a
Disposal of any part of the Existing Council Land and/or the BXS Land which at the relevant
time is subject to (or by reason of the Disposal would be subject to) any Historic Deeds of
Restrictive Covenant and/or any New Deed of Restrictive Covenant provided always that to
the extent that such information is not already in the public domain (other than as a result of
a breach of a duty of confidentiality by someone other than the Developer):
43.7.1 such copy has redacted from it the Commercially Sensitive Information save that
notwithstanding clause 16.3.5 of this Agreement the Developer and Council agree that for
these purposes only part 1 of Schedule 1 of this Agreement will not be treated as
Commercially Sensitive Information;
43.7.2 prior to the disclosure of such copy the Council and/or Joint Venture Entity and/or the
Southern Developer (as the case may be) has delivered to the Developer a confidentiality
agreement signed by the party to whom such copy is to be disclosed in the form attached
at Annexure 18 with such amendments and/or in such other form as may be agreed by
the parties (acting reasonably) from time to time; and
43.7.3 neither the Council or a Joint Venture Entity and/or the Southern Developer may disclose
working drafts of this Agreement or extracts of working drafts of this Agreement.
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44. LIMITED RECOURSE
Notwithstanding any other provisions of this Agreement:
44.1 for the avoidance of doubt JTC has executed this Agreement solely as trustee and with the
intention of binding the net assets of The Standard Life Investments UK Shopping Centre
Trust held by JTC from time to time on trust for The Standard Life Investments UK Shopping
Centre Trust (the "Trust Assets");
44.2 the aggregate of all liabilities of JTC under this Agreement shall at all times and for all
purposes extend only to the Trust Assets;
44.3 in no circumstances shall any liability attach to or be enforced or enforceable against the
assets of JTC (held in its capacity as trustee of any other trust or in its personal capacity or
in any other capacity whatsoever) other than the assets which comprise the Trust Assets;
44.4 all representations, warranties, undertakings, obligations and covenants in this Agreement
are made given owed or agreed by or in relation to the Trust Assets and in JTC's capacity as
trustee of The Standard Life Investments UK Shopping Centre Trust and for the avoidance of
doubt shall not be construed to be made given owed or agreed by or in relation to JTC in its
capacity as trustees of any other trust or in its personal capacity or in any other capacity
whatsoever;
44.5 for the avoidance of doubt KB(J) has executed this Agreement solely as trustee and with the
intention of binding the net assets from time to time of the trust created pursuant to the
declaration of trust dated 25 April 2005 (entered into by JTC in its capacity as trustee of the
Standard Life investment UK Shopping Centre Trust) and KB(J) (the "Nominee Trust") (the
"Nominee Assets");
44.6 the aggregate of all liabilities of KB(J) under this Agreement shall at all times and for all
purposes extend only to the Nominee Assets;
44.7 in no circumstances shall any liability attach to or be enforced or enforceable against the
assets of KB(J) (held in its capacity as trustee of any other trust or in its personal capacity or
in any other capacity whatsoever) other than the assets which comprise the Nominee
Assets; and
44.8 all representations, warranties, undertakings, obligations and covenants in this Agreement
are made given owed or agreed by or in relation to the Nominee Assets and in KB(J)'s
capacity as trustee of the Nominee Trust and for the avoidance of doubt shall not be
construed to be made given owed or agreed by or in relation to the KB(J) in its capacity as
trustee of any other trust or in its personal capacity or in any other capacity whatsoever.
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48. ACCESS AREAS AND EASEMENT AREAS
48.1 Access Areas
48.1.1 The Developer and the Council shall act reasonably and shall work together in good faith
to agree the areas within the Council Land that the Developer will necessarily require in
order to carry out the Critical Infrastructure and the time periods for which such areas will
be necessarily required for this purpose.
48.1.2 Subject to clause 48.1.1 and any written agreement being reached pursuant to the same,
prior to the date being 5 Working Days after the Unconditional Date (time being of the
essence) the Developer may give notice (or notices) to the Council identifying the areas
within the Council Land that the Developer reasonably and necessarily requires in order
to carry out the Critical Infrastructure and the time periods for which such areas are
reasonably and necessarily required for this purpose (and if no such notice is given the
Developer shall from the date being 5 Working Days after the Unconditional Date not be
able to specify any Required Access Area) and any dispute regarding the extent of the
Required Access Area shall be determined by an Independent Person in accordance with
clause 13.
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48.1.3 If during the process of carrying out the Critical Infrastructure the Developer confirms that
further land within the Council Land is required to form part of the Required Access Area
then in relation to any request to extend the Required Access Area the Council and the
Developer shall act reasonably and shall work together in good faith to agree the areas
within the Council Land that the Developer will necessarily require in order to carry out
the crucial Critical Infrastructure and the time periods for which such areas will be
necessarily required for this purpose.
48.2 Easement Areas
48.2.1 The Developer and the Council shall act reasonably and shall work together in good faith
to agree the areas within the Council Land over which the Developer will necessarily
require deeds of easement and like other documents for the purposes of the Pedestrian
Bridge and/or the Living Bridge and the time periods for which such land will be
necessarily required for this purpose.
48.2.2 Subject to clause 48.2.1 and any written agreement being reached pursuant to the same,
prior to the date being 5 Working Days after the Unconditional Date (time being of the
essence) the Developer may give notice (or notices) to the Council identifying the areas
within the Council Land that the Developer reasonably and necessarily requires for such
deeds of easement and like other documents as shall be necessary in relation to the
Living Bridge and/or the Pedestrian Bridge in accordance with Schedule 9 (and if no such
notice is given the Developer shall from the date being 5 Working Days after the
Unconditional Date not be able to specify any Required Easement Area) and any dispute
regarding the extent of the Required Easement Area shall be determined by an
Independent Person in accordance with clause 13.
48.2.3 If during the process of carrying out the Pedestrian Bridge and/or the Living Bridge the
Developer confirms that further land within the Council Land is required to form part of the
Required Easement Area the Developer and the Council shall act reasonably and shall
work together in good faith to agree the areas within the Council Land over which the
Developer will necessarily require deeds of easement and like other documents for the
purposes of the Pedestrian Bridge and/or the Living Bridge and the time periods for which
such land will be necessarily required for this purpose.
In witness of which this deed has been duly executed and is delivered on the date written at the
beginning of this deed.
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Schedule 1
Staging Conditions
Part 1
Planning Condition
1. DEFINITIONS
In this Part 1 of this Schedule 1 and this Agreement the following words and expressions shall
have the following meanings:
"Agreed Costs Formula"
"Agreed Decoupling Strategy"
means a Decoupling Strategy agreed pursuant to paragraph 3.1.1 of this Part 1 of
this Schedule 1;
"Agreed Decoupling Timetable"
means a Decoupling Timetable agreed pursuant to paragraph 3.1.2 of this Part 1
of this Schedule 1;
"Agreed Item Costs"
means the cost of each item comprising the relevant works calculated in
accordance with the Agreed Costs Formula;
"Agreed Total Cost"
means the sum of all Agreed Item Costs;
"Appeal"
means an appeal under sections 78 and 79 of the Town and Country Planning
Act 1990 against a Refusal;
"Approval(s)"
means Reserved Matters Approval and Other Matters Approval and Necessary
Consents;
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"Approvals Application(s)"
means a Reserved Matters Application and/or Other Matters Application and/or
any applications or requests for any Necessary Consents;
"Call-In"
means reference of the planning application to the Secretary of State under section
77 of the Act and the determination of a planning application by the Secretary of
State under section 77 of the Act;
"Cost Estimate"
means the agreed feasibility cost estimate (revision 3) dated 15 December 2015
and prepared Gardiner & Theobald LLP which is attached to this Agreement at
Annexure 14;
"Decoupled Route"
has the meaning given in the definition of Planning Condition;
"Decoupling Amendments"
means heads of terms for the variations required to be made to this Agreement
and to the extent necessary for ancillary documentation to be entered into in the
event that the Agreed Decoupling Strategy is implemented which the Council and
the Developer acknowledge and agree will include:
(a) an amendment to the definition of "Critical Infrastructure" to exclude all of the
"Southern Critical Infrastructure" (save for any Non-Decoupled Elements);
(b) obligations on the Council and the Developer to act reasonably in working
together to co-ordinate the design and carrying out of the works relating to
the Critical Infrastructure and the Southern Critical Infrastructure;
(c) obligations on the Council and the Developer to determine the phasing of
access by the Developer and the Southern Developer to the Required
Access Area taking into account the reasonable construction requirements
of the Developer and the Southern Developer; and
(d) any other amendments required as a result of the Parties (together where
applicable with the Southern Developer) entering into Decoupling
Contract(s);
"Decoupling Applications"
means applications to the LPA made in accordance with the Agreed Decoupling
Strategy for Decoupling Approvals;
"Decoupling Approvals"
means the permissions, agreements, approvals and releases which are identified
in the Agreed Decoupling Strategy as being agreed to be sought from the LPA;
"Decoupling Conditions and Obligations"
the conditions attached to and the obligations contained within the Satisfactory
Planning Permission and/or the S73 Planning Agreement related to or consequent
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upon the Southern Critical Infrastructure and "Decoupling Condition and
Obligation" shall mean any one of these;
"Decoupling Contract"
means a contract entered into between the Developer, the Council and/or the
Southern Developer in relation to the performance of:
(a) any one or more Decoupling Condition and Obligation (if any) in respect of
which it has been agreed that a Decoupling Application will not be made;
and/or
(b) any one or more of the Decoupling Residual Requirements;
"Decoupling Contract Principles"
has the meaning given in paragraph 3.1.5
"Decoupling Residual Requirements"
those Decoupling Conditions and Obligations to which paragraph 3.1.3(a) of Part
1 of Schedule 1 applies but for which a Decoupling Approval has not been
obtained;
"Decoupling Strategy"
means a mechanism through which the Decoupling Conditions and Obligations are
formally decoupled (by successful applications to the LPA and/or contractual
arrangements) (in a manner which is not likely to prejudice or delay the satisfaction
of the CPO Condition) to the reasonable satisfaction of the Developer (acting as a
reasonable and prudent developer) and of the Council to ensure:
(a) so far as possible that those Decoupling Conditions and Obligations which
relate to the Southern Critical Infrastructure will fall to be observed and
performed by the Council and/or the Southern Developer; and
(b) so far as possible there are no restrictions on the construction or occupation
of the Development related to or consequent upon the Southern Critical
Infrastructure
and the mechanism shall (with advice from Reuben Taylor QC if the Parties agree
that this would be beneficial) identify:
(c) which Decoupling Conditions and Obligations the Parties will seek to amend
through obtaining permissions, agreements, approvals and releases from
the LPA so that the elements of the Southern Critical Infrastructure to which
they relate will not comprise part of the Development and a full and effective
release will be given by the LPA to the Developer from any further liability in
this respect; and
(d) which Decoupling Conditions and Obligations relating to the Southern
Critical Infrastructure the Parties will seek to designate responsibility for
compliance with initially by entering into Decoupling Contract(s);
"Decoupling Timetable"
means a timetable for the implementation of the Agreed Decoupling Strategy which
timetable is to include milestone dates including for the agreement of the
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Decoupling Amendments and which the parties agree will specify that in any event
the requirements of paragraph 3.1.4(a) must be satisfied by the Third Milestone
Date and the requirements of paragraph 3.1.4(b) must be satisfied by the Fourth
Milestone Date;
"Developer's Contribution"
means the subject to any deductions
made pursuant to any Decoupling Contract(s) in accordance with the Decoupling
Contract Principles and to any payments made in accordance with paragraphs
3.1.5 and 3.1.6 and the direct deed entered into pursuant to paragraph 3.1.7 and
with the addition of VAT thereon where and to the extent that the payment is the
consideration for a supply for VAT purposes provided the Developer shall have first
received a proper and valid VAT invoice addressed to the Developer;
"Fallback Route"
has the meaning given in the definition of Planning Condition;
"Finally Disposed of"
means a final exhaustion disposal or discontinuance of the Planning Proceedings;
"First Milestone Date"
"Fourth Milestone Date"
"New Satisfactory Planning Permission"
has the meaning given in Schedule 6;
"Non-Decoupled Elements"
means any element of the Southern Critical Infrastructure (as set out at
paragraphs (a) – (e) of that definition) in respect of which the Developer has given
notice in accordance with paragraph 3.1.9 of this Part 1 of Schedule 1;
"Other Matters Application"
means an application for one or more Other Matters Approval;
"Other Matters Approval"
means the LPA's approval of details strategies detailed specifications working
method statements, programmes and other matters (other than Reserved Matters)
which under the conditions contained in a Satisfactory Planning Permission or the
S73 Planning Agreement require submission to and approval by the LPA prior to
the commencement of Phase 1;
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"Phase 1A (North)"
means Phase 1A (North) as defined in the s73 Planning Permission;
"Planning Condition"
means the condition to be satisfied pursuant to paragraph 5.1 (the "Decoupled
Route") or pursuant to paragraph 5.2 (the "Fallback Route");
"Planning Condition Challenge Period"
means the period of seven weeks commencing on the date on which the last
Approval or Decoupling Approval (as the case may be) which was required to
satisfy the condition contained in paragraph 5 of Part 1 of this Schedule 1 was
granted by the determining authority;
"Planning Condition Proceedings"
means Planning Proceedings lodged by the Developer;
"Planning Proceedings"
means all or any of the following proceedings (including any Third Party Planning
Proceedings and/or Planning Condition Proceedings):
(a) an application for or to apply for judicial review challenging the grant of a
New Satisfactory Planning Permission or an Approval or Decoupling
Approval (in the case of a Decoupling Approval only obtained from the LPA)
and/or any such proceedings made following a resolution to grant a New
Satisfactory Planning Permission or an Approval or an Decoupling Approval;
and
(b) an application made under section 288 of the Town and Planning Act 1990
following and challenging a Refusal (or a refusal following a Call-In) or the
grant of an Decoupling Approval or an Approval and/or a New Satisfactory
Planning Permission by the Secretary of State,
and includes any appeal to a higher court made against a judgment given in the
lower court;
"Refusal"
means either an express or deemed refusal of any relevant planning application or
any Approval or Decoupling Approval in circumstances giving rise to a right of
Appeal under section 78 of the Town and Country Planning Act 1990 or any such
approval which the Parties agree or it is otherwise determined in accordance with
the provisions of paragraphs 1 and 6 of this Part 1 of this Schedule 1 as not
being reasonably satisfactory;
"Reserved Matters"
means matters reserved as "reserved matters" for subsequent approval in a
Satisfactory Planning Permission in accordance with article 5 of the Town and
Country Planning (Development Management Procedure) (England) Order 2010;
"Reserved Matters Application"
means an application for one or more Reserved Matters Approval;
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"Reserved Matters Approval"
means the LPA's approval of any Reserved Matters which under the conditions
contained in a Satisfactory Planning Permission require submission to and
approval by the LPA prior to the commencement of Phase 1;
"Second Milestone Date"
"Secretary of State"
means the Secretary of State and includes an inspector appointed by the Secretary
of State to determine any Appeal against a Refusal or following a Call-In of any
application for an Approval;
"Southern Critical Infrastructure"
means the following:
(a) the demolition works shown shaded pale and dark red on Plan BXS-PRDE-
TRAN-02-A-P01; and
(b) the highways works shaded dark red on Plan BXS-PRDE-TRAN-04-A-P01;
(c) the new utilities distribution networks within the highway network shown
shaded pale red on Plan BXS-PRDE-TRAN-03-A-P01;
(d) the abandonment and isolation of existing utilities within the existing highway
network shaded dark red on Plan BXS-PRDE-TRAN-03-A-P01; and
(e) Clitterhouse Playing Fields Improvements Part 1 and Claremont Park
Improvements shown shaded red on Plan BXS-PRDE-TRAN-06-A-P01;
(the plans above comprising the "Southern Critical Infrastructure Plans" at
Annexure 15)
"Third Milestone Date"
"Third Party Planning Proceedings"
means Planning Proceedings lodged by a Third Party.
2. WAIVER
The Planning Condition may not be waived by the Developer.
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3. TIMING OF SATISFACTION OF PLANNING CONDITION
Decoupled Route
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4. COUNCIL OBLIGATIONS
4.1 References to the Council in this Part 1 of this Schedule 1 and in the context of the
Decoupled Route are to the Council working with the Southern Developer and the Council
may procure that its obligations in this Part 1 of this Schedule 1 are satisfied by the
Southern Developer (without prejudice to the primary liability of the Council).
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4.2 The Council shall at the request of the Developer co-operate with the Developer and use
reasonable endeavours to assist the Developer in satisfying the Planning Condition
according to this Part 1 of this Schedule 1.
5. SATISFACTION OF THE PLANNING CONDITION
The Planning Condition is satisfied by each of the following requirements occurring on or before
the Long Stop Date:
5.1 in the case of satisfaction under the Decoupled Route:
5.1.1 every Decoupling Condition and Obligation being subject to either:
(a) a Decoupling Approval which has been obtained from the LPA:
(i) which in accordance with paragraph 6.1:
(A) the Developer and the Council have both confirmed is reasonably
satisfactory; or
(B) such Decoupling Approval has been deemed to be satisfactory to both
the Developer and the Council; and
(ii) in respect of which the Planning Condition Challenge Period has expired
without Planning Proceedings having been begun or, (if the Developer elects
in writing but not otherwise) if Planning Proceedings are begun during the
Planning Condition Challenge Period the conclusion of those proceedings
are such that they are Finally Disposed of leaving in place the Decoupling
Approval obtained from the LPA; and/or
(b) a completed Decoupling Contract(s),
and the date on which the last Decoupling Condition and Obligation is subject to either of
the above is the "Decoupled Date";
5.1.2 the Developer obtaining the last of the Approvals which a prudent developer would
ordinarily require to be obtained (in order to enable it to commence carrying out Phase 1
in accordance with this Agreement);
5.1.3 the Developer confirming to the Council that the terms of the Approvals are reasonably
satisfactory to it or the Approvals otherwise being found to be satisfactory pursuant to
paragraph 6.1.7; and
5.1.4 expiry of the Planning Condition Challenge Period without Planning Proceedings having
been begun or, if Planning Proceedings are begun during the Planning Condition
Challenge Period the conclusion of those proceedings are such that they are Finally
Disposed of leaving in place the Approvals;
5.2 in the case of satisfaction under the Fallback Route:
5.2.1 the Developer obtaining a Satisfactory Planning Permission;
5.2.2 the Developer obtaining the last of the Approvals which a prudent developer would
ordinarily require to be obtained (in order to enable it to commence carrying out Phase 1
in accordance with this Agreement);
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5.2.3 the Developer confirming to the Council that the terms of the Approvals are reasonably
satisfactory to it or the Approvals otherwise being found to be satisfactory pursuant to
paragraph 6.2; and
5.2.4 expiry of the Planning Condition Challenge Period without Planning Proceedings having
been begun or, if Planning Proceedings are begun during the Planning Condition
Challenge Period the conclusion of those proceedings are such that they are Finally
Disposed of leaving in place the Approvals.
6. APPROVALS – SATISFACTORY TO THE DEVELOPER
Decoupled Route
6.1 It is agreed that:
6.1.1 Promptly upon receipt the Developer shall provide to the Council a copy of any
Decoupling Approval obtained from the LPA;
6.1.2 within 20 Working Days of:
Fallback Route
6.2
6.2.5
6.2.6
7. APPEAL/CALL-IN
Decoupled Route
7.1
Fallback Route
7.2
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8. PLANNING PROCEEDINGS
Decoupled Route
Fallback Route
9. NOTIFICATION
9.1 The Developer shall notify the Council that the Planning Condition has been satisfied within
20 Working Days of the Developer believing satisfaction has been achieved.
9.2 Following notice from the Developer that it believes the Planning Condition has been
satisfied the Council shall within 20 Working Days notify the Developer whether or not the
Council agrees (such agreement not to be unreasonably withheld or delayed) that the
Planning Condition has been satisfied.
9.3 If within the 20 Working Days period referred to in paragraph 9.2 of this Part 1 of this
Schedule 1 the Council serves notice on the Developer that the Council disagrees that the
Planning Condition has been satisfied then a dispute shall be deemed to have arisen and
may at any time be referred by either the Council or the Developer to an Independent Person
for determination in accordance with clause 13.
9.4 If the Council fails within the 20 Working Days period referred to in paragraph 9.2 of this
Part 1 of this Schedule 1 to serve notice on the Developer under that paragraph the Council
shall be deemed to have served notice on the Developer that the Council agrees that the
Planning Condition has been satisfied.
9.5 Following any notice served by the Council within the 20 Working Day period specified in
paragraph 9.4 above which disputes that the Planning Condition has been satisfied the
Parties shall use reasonable endeavours to resolve such disagreement between themselves
as soon as reasonably practicable provided that if an agreed position cannot be reached
between the Developer and the Council within 10 Working Days of such counter notice
having been issued by the Council and at any time thereafter either the Council or the
Developer may refer the dispute to an Independent Person for determination in clause 13
(unless the Council prior to the matter being referred to an Independent Person serves
notice that it agrees that the Planning Condition has been satisfied).
9.6 If it is determined by an Independent Person that the Planning Condition has been satisfied
then the Planning Condition shall be deemed to be satisfied on the date of such
determination.
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10. INFORMATION
10.1 The Developer and the Council shall each keep the other informed in respect of all matters
relating to the satisfaction of the Planning Condition.
10.2 The Developer and the Council shall each supply to the other on request any information
that is reasonably required relating to the satisfaction of the Planning Condition.
11. DISPUTES
Any dispute regarding any matter relating to this Schedule 1 may be referred by either Party to
the Independent Person for determination in accordance with clause 13.
12. COUNSEL
12.1 Where in this Schedule 1 matters are to be referred to Counsel for expert determination the
provisions of this paragraph 12 shall apply.
12.2 Counsel is to be agreed between the Parties from the list of Counsel set out in
paragraph 12.8 or such other Counsel as the Parties agree. If none of the Counsel are
willing or able to act, Counsel is to be such other Queen's Counsel experienced in town and
country planning matters as the Council and the Developer shall agree to instruct.
12.3 If there is a dispute about the appointment of Counsel, either the Council or the Developer
may ask the Chairman for the time being of the Bar Council to nominate Counsel who
satisfies the criteria set out in paragraph 12.2 or if he is unable or willing to do so the next
senior officer of the Bar Council may make the nomination.
12.4 Instructions to Counsel are to be prepared by the Developer and approved by the Council
prior to their submission to Counsel. If there are any points of dispute between the Developer
and the Council the Instructions are to set out the nature of the dispute.
12.5 The decision of Counsel on matters referred to him is to be binding on the Council and the
Developer.
12.6 The costs of referral to Counsel are to be borne as the Counsel shall direct or in absence of
direction by the Parties in equal shares.
12.7 If the matter is referred to Counsel for determination and Counsel is of the opinion that the
matter or any part is not one which Counsel should reasonably determine then Counsel may
direct that the matter or any part be referred by the Council and Developers for determination
by an Independent Person in accordance with clause 13.
12.8 The agreed list of alternative Counsel is any of the following provided that none of the names
on the list have previously acted for the Parties to this Agreement in connection with this
Development:
12.8.1 Neil King QC;
12.8.2 Robin Purchas QC;
12.8.3 David Elvin QC;
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12.8.4 Christopher Lockhart-Mummery QC;
12.8.5 Timothy Straker QC; and
12.8.6 Christopher Katkowski QC.
13. SATISFACTION OF THE PLANNING CONDITION UNDER THE DECOUPLED ROUTE
14. TERMINATION
Part 2
Highways Condition
1. DEFINITIONS
In this Part 2 of this Schedule 1 and this Agreement the following words and expressions shall
have the following meanings:
"Finally Disposed of"
means the final exhaustion of Highway Proceedings;
"Highways Condition"
means the condition to be satisfied pursuant to paragraph 4;
"Highway Order(s)"
means all appropriate permanent road closure and road diversion orders that are
necessary to enable the Phase 1 to be commenced and brought into use and all
traffic management orders and other consents and approvals from any relevant
authority in connection with the permanent closure or diversion of any existing
highway within the Phase 1 as a pre-requisite in order for the Phase 1 to be
commenced and brought into use;
"Highway Orders Challenge Period"
means the period of seven weeks from the date on which notice of the making any
Highway Orders is first published (or as the case may require are confirmed);
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"Highway Proceedings"
means an application by a Third Party to challenge the making or (as the case may
require) confirmation of the Highway Orders.
2. WAIVER
3. TIMING OF SATISFACTION
The Developer shall use reasonable endeavours to satisfy the Highways Condition as soon as
reasonably practicable in accordance with the Programme.
4. SATISFACTION OF THE HIGHWAYS CONDITION
The Highways Condition is satisfied by each of the following requirements:
4.1 the making or confirmation (as the case may be and whichever is the later if both are
required) of all relevant Highway Orders which a prudent developer would ordinarily require
to be obtained prior to the commencement of Phase 1;
4.2 any Highway Proceedings in relation to the making of any Highway Orders being Finally
Disposed of leaving in place all such relevant Highways Orders; and
4.3 the expiry of the Highways Orders Challenge Period without Highway Proceedings being
begun or, if Highway Proceedings are begun during the Highway Orders Challenge Period
the conclusion of those proceedings such that they are Finally Disposed of leaving in place
made or (as the case may be) confirmed Highway Orders.
5. NOTIFICATION
5.1 The Developer shall within 20 Working Days of the Developer obtaining any Highways Order
provide to the Council a copy of the relevant Highway Order.
5.2 The Developer shall notify the Council that the Highways Condition has been satisfied within
20 Working Days of the Developer believing the Highways Condition has been satisfied.
5.3 Following a notice from the Developer that it believes the Highways Condition has been
satisfied the Council shall within 20 Working Days notify the Developer whether or not the
Council agrees that the Highways Condition has been satisfied.
5.4 If within the 20 Working Days period referred to in paragraph 5.3 of this Part 2 of
Schedule 1 the Council serves notice on the Developer that the Council disagrees that the
Highways Condition has been satisfied then a dispute shall be deemed to have arisen and
such dispute may at any time be referred by either the Council or the Developer to an
Independent Person for determination in accordance with clause 13.
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5.5 If the Council fails within the 20 Working Days period paragraph 5.3 of this Part 2 of
Schedule 1 to serve notice on the Developer under that paragraph the Council shall be
deemed to have served notice on the Developer that it disagrees that the Highways
Condition has been satisfied and at any time thereafter either the Council or the Developer
may refer the dispute to the Independent Person for determination under clause 13 (unless
the Council prior to the matter being referred to an Independent Person serves notice that it
agrees that the Highways Condition has been satisfied).
6. INFORMATION
6.1 The Developer shall keep the Council informed in respect of all matters relating to the
satisfaction of the Highways Condition.
6.2 The Developer shall supply to the Council on request any information that the Council shall
reasonably require relating to the satisfaction of the Highways Condition.
7. DISPUTES
Any dispute regarding whether the Highways Order Condition may be waived may be referred
by either Party to the Independent Person for determination in accordance with clause 13.
8. TERMINATION
If the Highways Condition is not satisfied by the Long-Stop Date or (if earlier) the date that the
S73 Planning Permission lapses in respect of Phase 1 either the Council or the Developer may
serve a Termination Notice in accordance with clause 8.
Part 3
Infrastructure Condition
1. DEFINITION
In this Part 3 of this Schedule 1 and this Agreement the following words and expressions shall
have the following meanings:
"Infrastructure Condition"
means the condition to be satisfied pursuant to paragraph 4.
2. WAIVER
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3. TIMING OF SATISFACTION
The Developer shall use reasonable endeavours to satisfy the Infrastructure Condition as soon
as reasonably practicable after the satisfaction of the Planning Condition in accordance with the
Programme and in any event by the Long Stop Date.
4. SATISFACTION OF INFRASTRUCTURE CONDITION
The Infrastructure Condition is satisfied by the completion of any Infrastructure Agreement that
is required to be completed in accordance with the Satisfactory Planning Permission and the
S73 Planning Agreement which a prudent developer shall ordinarily require to have been
entered into prior to the commencement of Phase 1.
5. SATISFACTORY TERMS
The Developer shall not be required to enter into any Infrastructure Agreement other than on
terms that are satisfactory to it acting reasonably.
6. NOTIFICATIONS
6.1 The Developer shall provide the Council with copies of each Infrastructure Agreement
entered into by the Developer within 20 Working Days of completion of such Agreement.
6.2 The Developer shall notify the Council that the Infrastructure Condition has been satisfied
within 20 Working Days of the Developer believing this to be the case.
6.3 Following notice from the Developer that it believes the Infrastructure Condition has been
satisfied the Council shall within 20 Working Days notify the Developer whether or not the
Council agrees (such agreement not to be unreasonably withheld or delayed) that the
Infrastructure Condition has been satisfied.
6.4 If within the 20 Working Days period referred to in paragraph 6.3 of this Part 3 of this
Schedule 1 the Council serves notice on the Developer that the Council disagrees that the
Infrastructure Condition has been satisfied then a dispute shall be deemed to have arisen
and may at any time be referred by either the Council or the Developer to an Independent
Person for determination in accordance with clause 13.
6.5 If the Council fails within the 20 Working Days period paragraph 6.3 of this Part 3 of this
Schedule 1 to serve notice on the Developer under that paragraph the Council shall be
deemed to have served notice on the Developer that it disagrees that the Infrastructure
Condition has been satisfied and at any time thereafter the dispute may be referred by either
Party to the Independent Person for determination in accordance with clause 13 (unless the
Council prior to the matter being referred to an Independent Person serves notice that it
agrees that the Infrastructure Condition has been satisfied).
7. INFORMATION
The Developer shall (upon reasonable request being made by the Council) keep the Council
informed in respect of progress relating to the satisfaction of the Infrastructure Condition.
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8. DISPUTES
Any disputes about the satisfaction of the Infrastructure Condition or the terms of an
Infrastructure Agreement may be referred by either the Council or the Developer to an
Independent Person in accordance with the terms of clause 13.
9. TERMINATION
If the Infrastructure Condition is not satisfied by the Long Stop Date or (if earlier) the date that
the S73 Planning Permission lapses in respect of Phase 1 either the Council or the Developer
may serve a Termination Notice on the other in accordance with clause 8.
Part 4
Funding Condition
1. DEFINITIONS
For the purposes of this Part 4 of this Schedule 1 the following words and expressions shall
have the following meanings:
"Financial Resource"
means Internal Resource and Third Party Finance Resource;
"Funding Condition"
means the condition to be satisfied pursuant to paragraph 4;
"Internal Resource"
means equity or other financial resource available to the Developer (other than
Third Party Finance Resource in respect of the First Development Phase);
"Third Party Finance Resource"
means an unconditional offer of debt finance from a Third Party or Third Parties in
respect of the First Development Phase;
"Relevant Costs"
means the costs reasonably estimated by the Developer to be incurred in
connection with the First Development Phase.
2. WAIVER
3. TIMING OF SATISFACTION OF FUNDING CONDITION
4. SATISFACTION OF FUNDING CONDITION
4.1
5. NOTIFICATION
5.1 Within 20 Working Days of the Developer satisfying the Funding Condition the Developer
shall notify the Council of such fact.
6. INFORMATION
The Developer shall (upon reasonable request being made by the Council) keep the Council
informed in respect of progress relating to the satisfaction of the Funding Condition.
7. DISPUTES
Any disputes about whether the Funding Condition is satisfied may be referred by either the
Council or the Developer to an Independent Person in accordance with the terms of clause 13.
8. TERMINATION
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Part 5
Pre-Let Condition
1. DEFINITIONS
For the purposes of this Part 5 of this Schedule 1 the following words and expressions shall
have the following meanings:
"Agreement for Lease"
means in relation to a commercial unit an agreement between the Developer and a
Third Party whereby such Third Party agrees to take a lease and "Agreement for
Lease" shall include a lease of any Commercial Unit where no agreement is
entered into prior to grant;
"Commercial Unit(s)"
means any unit in the First Development Phase intended or suitable for letting for a
retail or other commercial use
"Estimated Rental Value"
means the estimated rental value of the First Development Phase referred to in an
Updated Financial Appraisal;
"Marketing and Letting Strategy"
means a strategy for marketing and letting Commercial Units within the First
Development Phase prepared by the Developer in accordance with good
institutional practice;
"Pre-Let Condition"
means the condition to be satisfied pursuant to paragraph 4;
"Satisfactory Letting Terms"
means terms satisfactory to the Developer (acting reasonably);
"Unconditional"
means any conditions precedent in any Agreement for Lease have been satisfied
other than conditions requiring this Agreement to become unconditional or relating
to the completion of the whole or part of the Development (including fitting out
works or the provision of warranties).
2. WAIVER
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3. TIMING OF SATISFACTION OF THE PRE-LET CONDITION
The Developer shall use reasonable endeavours to satisfy the Pre-Let Condition as soon as
reasonably practicable in accordance with prudent development and letting practice.
4. SATISFACTION OF THE PRE-LET CONDITION
The Pre-Let Condition is satisfied by each of the following requirements:
5. NOTIFICATION
5.1 The Developer shall notify the Council within 20 Working Days of the Pre-Let Condition
having been satisfied.
5.2 The Developer shall notify the Council within 20 Working Days of the completion of any
Agreement for Lease providing the Council with a summary of the financial terms.
6. INFORMATION
The Developer shall (upon reasonable request being made by the Council) keep the Council
informed of its negotiations to enter into Agreements for Lease to satisfy the Pre-Let Condition
and provide the Council with a summary of the Marketing and Letting Strategy.
7. DISPUTES
Any dispute in relation to the Estimated Rental Value or whenever an Agreement for Lease has
become Unconditional or otherwise as to whether the Pre-Let Condition has been satisfied may
be referred by either the Council or the Developer to the Independent Person for determination
in accordance with clause 13.
8. TERMINATION
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Part 6
1. DEFINITIONS
For the purposes of this Part 6 of this Schedule 1 the following expressions shall have the
following meanings:
"Counter Notice"
"Statement Notice"
"Viability Condition"
2. WAIVER
3.
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3.1.2
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4.
5. INFORMATION
The Developer shall (upon reasonable request being made by the Council) keep the Council
informed in respect
6. DISPUTES
Any dispute as to whether the has been satisfied subject to paragraph 2 may
be referred by either party to the Independent Person for determination in accordance with
clause 13.
7. TERMINATION
8.
9. INSPECTION OF FINANCIAL APPRAISALS
9.1 The Developer shall procure that any Financial Appraisal produced in connection with the
provisions of this Agreement are lodged and retained at the Developer's Solicitors' offices
and are made available for inspection by the Council by reasonable prior appointment.
9.2 If the Council wishes to inspect Financial Appraisals at any time and shall notify the
Developer of such fact, then the Developer shall procure that the Council and any Council's
Consultant is able to inspect the Financial Appraisals at the Developer's Solicitors' offices, on
not less than two Working Days' prior notice from the Council. Provided that any party who
wishes to inspect any Financial Appraisal shall sign an agreement with the Developer in
such form as the Developer may reasonably require confirming that the contents of such
Financial Appraisal are commercially sensitive and are to be kept confidential (save only as
permitted by clause 34).
10. COUNCIL CO-OPERATION
10.1
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Part 7
1. DEFINITIONS
For the purposes of this Part 7 of this Schedule 1 the following words and expressions shall
have the following meanings:
2. WAIVER
5. NOTIFICATION
The Developer shall as soon as reasonably practicable after receipt of any Tender notify the
Council
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6. INFORMATION
The Developer shall (upon reasonable request being made by the Council) keep the Council
informed in
7. DISPUTES
Any dispute as to has been satisfied may be referred by either
party to the Independent Person for determination in accordance with clause 13.
8. TERMINATION
Part 8
Site Assembly Condition
1. DEFINITIONS
In this Part 8 of this Schedule 1 and in this Agreement the following words and expressions
shall have the following meanings:
"Conditional Contract"
means a contract where the satisfaction of the conditions is totally within the
control of the Developer;
"Outstanding Interest(s)"
means such Relevant Interests within Phase 1 as shall be required to be bound by
the provisions of the S73 Planning Agreement in accordance with clause 6.1 of the
S73 Planning Agreement other than any Relevant Interests referred to in
paragraph 2.1.2 of this Part 8 of this Schedule 1 or any Relevant Interest
comprised in a Confirmed CPO;
"Relevant Interest(s)"
means any estate interest right or covenant as the Developer shall reasonably
consider necessary to acquire or extinguish in order to carry out and complete
Phase 1 (including for the avoidance of doubt all Outstanding Interests);
"Site Agreement(s)"
means any agreements entered into by the Developer and Site Owner(s) in respect
of the acquisition of a Relevant Interest not later than 12 months after the
Unconditional Date within Phase 1 by way of private treaty (and such agreement
may be by way of option Conditional Contract or unconditional contract or the
surrender, assignment or release or the relevant Site Owner's interest) and "Site
Agreement" shall be construed accordingly;
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"Site Assembly Condition"
means the conditions referred to in paragraph 2 of this Schedule 1;
"Site Owner(s)"
means the owners, occupiers and tenants for the time being or those persons
having the benefit of any rights or other interests (including any easements and/or
covenants) in or over any part of the BX Site (other than the Council and the
Developer).
2. SATISFACTION OF THE SITE ASSEMBLY CONDITION
2.1 The Site Assembly Condition is satisfied by:
2.1.1 the satisfaction of the CPO Condition; and
2.1.2 to the extent that the Confirmed CPO does not include a Relevant Interest the Developer
has acquired or entered into a Site Agreement in respect of such Relevant Interest.
2.2 The Developer shall use reasonable endeavours to exchange Site Agreements in respect of
all Relevant Interests with Phase 1 as soon as reasonably practicable on terms reasonably
satisfactory to the Developer.
3. WAIVER
Save in respect of the condition referred to in paragraph 2.1.2 insofar as it does not relate to
the Phase 1 Minimum (which may be waived by the Developer acting reasonably) the condition
referred to in paragraph 2.1 may not be waived.
4. COUNCIL'S OBLIGATIONS – SITE AGREEMENT
4.1 The Council shall not do anything which is or might become detrimental to the Developer's
endeavours to enter into Site Agreements in respect of all or any Relevant Interests in the
BX Site or increase the costs of the Developer of doing so.
4.2 Without limitation to paragraph 4.1 above and the provisions of the CPO Indemnity
Agreement, the Council shall not contact any Site Owner or any agent of any Site Owner in
connection with the acquisition of any Relevant Interest in the BX Site (other than pursuant
to the CPO or with the Developer's prior approval) whilst this Agreement subsists unless
requested in writing to do so by the Developer.
4.3 The Council shall lend such assistance as the Developer may reasonably request in relation
to the satisfaction of the Site Assembly Condition but not (without limitation) so as to impose
upon the Council any obligation to make any financial payment in connection therewith
unless the Developer has previously agreed to indemnify the Council and has provided such
security for costs as the Council shall reasonably require.
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5. NOTIFICATION
5.1 Within 10 Working Days of the Developer entering into any Site Agreement or the acquisition
of a Relevant Interest the Developer shall provide the Council with a copy of such relevant
Site Agreement identifying any conditions under that Agreement that remain to be satisfied
or the acquisition agreement in respect of the Relevant Interest (as the case may be).
5.2 The Developer shall within 10 Working Days of satisfying the Site Assembly Condition notify
the Council of such fact.
5.3 The Developer shall within 10 Working Days of completion pursuant to any Site Agreement
or acquisition agreement in respect of the Relevant Interest provide the Council with a copy
of the transfer or assurance or other completion instrument.
6. INFORMATION
6.1 The Developer shall keep the Council informed in relation to all matters relating to the
satisfaction of the Site Assembly Condition.
6.2 The Developer shall supply to the Council on reasonable request any reasonable information
readily to hand (which does not breach commercial confidences) in relation to the
satisfaction of the Site Assembly Condition.
7. DISPUTES
Any dispute as to whether the Site Assembly Condition has been satisfied may be referred by
either party to the Independent Person for determination in accordance with clause 13.
8. TERMINATION
If the Site Assembly Condition is not satisfied by the Long Stop Date either the Council or the
Developer may serve a Termination Notice in accordance with clause 8 on the other Party
unless the Site Assembly Condition is satisfied prior to the service of the Termination Notice.
Part 9
CPO Condition
1. DEFINITIONS
In this Part 9 of this Schedule 1 the following expressions shall have the following meanings:
"Acquisition Strategy"
has the meaning contained in the CPO Indemnity Agreement;
"Adverse Modification"
has the meaning contained in the CPO Indemnity Agreement;
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"Compensation Schedule"
has the meaning contained in the CPO Indemnity Agreement;
"CPO"
has the meaning contained in the CPO Indemnity Agreement;
"CPO Challenge Period"
means the period of seven weeks following the CPO Confirmation Date or the
period of three months and one week following an order notice resolution or act to
which the remedy of judicial review might be applicable in relation to the making of
the CPO;
"CPO Condition"
means the condition to be satisfied as referred to in paragraph 5 in this Part 9 of
this Schedule 1 in respect of the CPO;
"CPO Conditional Period"
means the period beginning on 3 March 2015 and ending at 5 p.m. on the date two
years from the date the CPO is made unless on such date:
(a) an inquiry is awaited in respect of the making or confirmation of a CPO or if
such inquiry has been held (in whole or in part) a decision is awaited; or
(b) the period of seven weeks shall not have expired after the CPO Confirmation
Date; or
(c) CPO Proceedings have been instituted,
then in which case the period shall be extended until the date 10 Working Days
following the earliest of:
(d) the date on which CPO Proceedings are Finally Disposed of; and
(e) the date of expiry of the CPO Challenge Period without any CPO
Proceedings having been instituted;
"CPO Confirmation"
means the confirmation of the CPO by the Secretary of State and "Confirmed"
and "Confirmed CPO" shall be construed accordingly;
"CPO Confirmation Date"
means the date of publication of the notice of confirmation of the CPO by the
Secretary of State or other competent person (including the Council in accordance
with section 14A of the Acquisition of Land Act 1981 where the circumstances so
permit);
"CPO Costs"
has the meaning contained in the CPO Indemnity Agreement;
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"CPO Land"
means all of the interests rights (including New Rights as defined in the draft CPO
Indemnity Agreement) and/or land within the BX Site or required to secure delivery
of the Critical Infrastructure included in the CPO as made and submitted by the
Council to the Secretary of State for CPO Confirmation in accordance with the
CPO Indemnity Agreement (save and except any such interests rights and/or land
as the Council and the Developer shall agree in writing prior to CPO Confirmation
can be excluded from the CPO);
"CPO Request Notice"
means a notice in writing served by the Developer on the Council requesting the
Council to make and pursue a CPO to facilitate the Development or a part thereof
such a notice to include:
(a) the Developer's suggested CPO Plan;
(b) details of the Third Party interests that the Developer wishes to see included
in the CPO;
(c) details of discussions and negotiations held with the owners and occupiers
of the land comprised in the Developer's suggested CPO Plan;
(d) the then current versions of the Acquisition Strategy and the Compensation
Schedule; and
(e) the Target Date being the date by which the Developer requests that the
CPO is made and being a date they consider is reasonably achievable for
that purpose;
"CPO Proceedings"
means an application for judicial review or other judicial challenge by a Third Party
against CPO Confirmation or any decision of the Secretary of State connected
therewith or a decision or action of the Council in respect of the making of the
CPO;
"Finally Disposed of"
means final exhaustion disposal or discontinuance of any CPO Proceedings;
"Inquiry Opening Date"
means the date notified (following consultation between the Developer and the
Council) to the Council from the Secretary of State as the date on which the CPO
inquiry will commence;
"Non-Confirmation Notice"
means a notice served pursuant to paragraph 2.15 of this Part 9 of this
Schedule 1;
"Outstanding Planning Requirements"
means the requirements set out at Schedule 17 of this Agreement;
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"Post Inquiry Assessment Period"
"Target Date"
means the date specified by the Developers in the CPO Request Notice as being
the date on which they request that the CPO is made by the Council.
2. CPO INDEMNITY AGREEMENT
2.1 The Parties shall enter into the CPO Indemnity Agreement in accordance with
paragraph 2.13 of this Part 9 of this Schedule 1.
2.2 Notwithstanding that the obligations of the Parties under the CPO Indemnity Agreement it
shall not come into effect until it is completed and if any Party to this Agreement shall take
any steps or otherwise perform its obligations under the CPO Indemnity Agreement such
Party shall do so in accordance with the terms of the CPO Indemnity Agreement and the
provisions of the CPO Indemnity Agreement shall apply in relation to those steps.
2.3 If the Council shall take any step at the written request of the Developer prior to the
indemnity or relevant indemnity contained in the CPO Indemnity Agreement coming into
force then the Developer shall pay in respect of such steps such CPO Costs incurred by the
Council as if that Agreement was in force.
2.4 Prior to completion of the CPO Indemnity Agreement or (unless the Council shall otherwise
reasonably agree) the Developer requesting the Council to take any steps in anticipation of
completion of the CPO Indemnity Agreement in accordance with paragraph 2.3 of this
Part 9 of this Schedule 1 the Developer shall submit to the Council and the Council shall
have approved the following documents:
2.4.1 the Acquisition Strategy;
2.4.2 the Compensation Schedule; and
2.4.3 (in accordance with this paragraph 2 of this Part 9 of this Schedule 1) the CPO Plan.
2.5 The Developer may serve on the Council the CPO Request Notice at any time provided that
such notice must as a minimum include the land rights and interests required to deliver the
Development.
2.6 Within 15 Working Days of the receipt by the Council of the CPO Request Notice the Council
shall respond to the Developer in writing either:
2.6.1 confirming that the Developer's suggested CPO Plan is agreed; or
2.6.2 confirming that the draft CPO Plan is not agreed and providing the Developer with a
written counter notice attaching its suggested CPO Plan.
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2.7 In proposing and seeking to settle the CPO Plan the Council and the Developer agree and
acknowledge that:
2.7.1 they have the shared objective of seeking to facilitate the commencement of the early
regeneration of the wider area through the inclusion in the CPO of a development plot or
plots within the Southern Development so long as, acting reasonably and following
consultation with the Developer, the Council is satisfied that it will not materially prejudice
the prospects of the Confirmation of the CPO or delay the programme for the making of
the CPO; and
2.7.2 the CPO shall as a minimum include all interests needed to secure the delivery of the BX
Site (including all of the Critical Infrastructure).
2.8 In the event that either:
2.8.1 the Council agrees the CPO Plan submitted by the Developer; or
2.8.2 the Developer agrees the CPO Plan submitted by the Council with its counter notice
under paragraph 2.6.2; or
2.8.3 the Council and the Developer reach agreement on the extent of the land and interests to
be included in the CPO Plan following further discussions,
then such agreed CPO Plan shall comprise the CPO Plan for the purposes of seeking
authority for, and, if authorised, pursuing, the CPO under the CPO Indemnity Agreement.
2.9 In the event that the Council serves a counter notice in accordance with paragraph 2.6.2
above and the Council and the Developer are unable to agree the CPO Plan within one
month of the receipt by the Developer of the Council's counter-notice then the Council and
the Developer shall jointly instruct Leading Counsel (through instructions prepared by the
Council and approved in writing by the Developer) to advise on the CPO Plan in accordance
with the following process.
2.9.1 the instructions shall be accompanied by representations from the Council and the
Developer explaining why each considers its CPO Plan to be appropriate;
2.9.2 Leading Counsel shall be asked to advise on the relative prospects of the Council
successfully securing the confirmation of the CPO based on the CPO Plans submitted
respectively by the Council and the Developer, and whether there is an alternative CPO
Plan that might be appropriate, in all cases having regard to the requirements of Circular
06/2004; and
2.9.3 Leading Counsel shall be provided with a maximum of 15 Working Days within which to
provide a written advice to the Council and the Developer.
2.10 If Leading Counsel advises that there is a better than 50 per cent prospect of a CPO based
on the CPO Plan submitted by the Council being confirmed then such CPO Plan shall
comprise the CPO Plan for the purposes of seeking authority for, and, if authorised,
pursuing, the CPO under the CPO Indemnity Agreement.
2.11 If Leading Counsel advises that there is a 50 per cent or less prospect of a CPO based on
the CPO Plan submitted by the Council being confirmed then the Council will pay full regard
to such advice and shall consult and liaise with the Developer in settling the CPO Plan.
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2.12 Within 15 Working Days of the receipt by the Council of the CPO Request Notice the Council
shall respond in writing to the Developer either confirming that their suggested Target Date is
agreed or providing its reasons as to why their suggested Target Date is not agreed and
notifying the Developer of the Council's Target Date which shall be the earliest reasonably
achievable date on which the Council can make the CPO following it being reasonably
satisfied that there is a compelling case in the public interest for the CPO and that the
requirements of Circular 06/2004 are satisfied and which shall thereafter become the Target
Date for the purposes of the CPO Indemnity Agreement.
2.13 Within two weeks of the agreement of the CPO Plan in accordance with paragraph 2.8 or
the settlement of the CPO Plan in accordance with paragraph 2.9 and the identification of
the Target Date in accordance with paragraph 2.12 the Council and the Developer shall
enter into the CPO Indemnity Agreement.
2.14 The CPO Plan as settled pursuant to this paragraph 2 of this Part 9 of this Schedule 1 shall
be the plan showing the CPO Land in the CPO.
2.15
3. WAIVER
4. TIMING OF SATISFACTION
The Developer shall use reasonable endeavours to satisfy the CPO Condition as soon as
reasonably practicable after the date of this Agreement.
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5. SATISFACTION OF CPO CONDITION
The CPO Condition is satisfied by each of the following requirements occurring on or before the
expiry of the CPO Conditional Period:
5.1 completion of the CPO Indemnity Agreement in accordance with paragraph 2.13;
5.2 the Secretary of State confirming the CPO as to the whole of the CPO Land without Adverse
Modification;
5.3 the expiry of the CPO Challenge Period without CPO Proceedings being begun or, if CPO
Proceedings are begun during the CPO Challenge Period the conclusion of those
proceedings such that they are Finally Disposed of leaving in place the confirmed CPO
described in paragraph 5.2 of this Part 9 of this Schedule 1; and
5.4 the provision to the Council by the Developer of such security as the Council may have
approved pursuant to clause 20 and/or 21 of the CPO Indemnity Agreement.
6. TERMINATION
6.1
7. TRUST PROVISIONS
7.1 The Council declares that it will hold any CPO Land which it has acquired by or is vested in
the Council pursuant to this Agreement or the CPO Indemnity Agreement (save for any
Southern Infrastructure Plot) either by agreement or compulsorily under the CPO on trust for
the Developer.
7.2 If the CPO Land referred to in paragraph 7.1 is transferred to the Council then the Council
declares that it will at the request and cost of the Developer.
7.2.1 transfer such CPO Land or any part of it to such person or persons at such time or times
in such manner as the Developer may direct by written notice to the Council;
7.2.2 otherwise deal lawfully with such CPO Land or any part as the Developer may direct; and
7.2.3 the Council shall execute all such documents acts and things as may be reasonably
necessary to procure the appropriate registration or entry in the register of title of such
CPO Land or any part so as to give effect to any such transaction or dealing as is
referred to in this paragraph 7 or (if so required by the Developer) to protect the interests
of the Developer in such CPO Land or any part of it as may be reasonably necessary for
the Developer to be registered with title absolute of such CPO Land or the relevant part of
such CPO Land.
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7.3 The Developer agrees to keep the Council indemnified from all costs damages expenses
claims and demands for which the Council may become liable as a result of any action taken
at the direction of the Developer pursuant to the provisions of this paragraph 7.
7.4 The provisions of this paragraph 7 shall continue in relation to any such CPO Land or any
part of it notwithstanding the termination of this Agreement.
8.
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Schedule 2
Part 1
Licence to occupy for surveys
1. The Council hereby grants to the Developer a licence for the Developer and all others
authorised by the Developer (including their contractors and professional advisers) the right to
enter upon such parts of the Required Access Area as are not built upon (subject to obtaining
the prior written consent or approval of any licensee tenant or occupier of the Council of such
part of the Required Access Area (which the Council will use all reasonable endeavours to
obtain) for the purposes of undertaking site soil and services surveys of the Required Access
Area or relevant parts of it (which surveys shall include (if appropriate) soil borings and other
trials and investigations) in order to enable the Developer to ascertain the ground conditions of
the Required Access Area and its suitability for the Development.
2. The Developer shall give the Council at least 10 Working Days' prior notice of the need to
exercise the rights granted in paragraph 1 specifying (by reference to a plan if necessary) such
parts of the Required Access Area to be accessed and the estimated length of the licence
period required and the Parties shall thereafter agree a date for such access to commence and
the length of the licence period (both parties acting reasonably).
3. The Developer shall indemnify the Council and any licensee tenant or occupier of the Council,
against all costs claims actions demands and any other liability suffered or incurred by the
Council as a result of the Developer entering onto the Required Access Area for the purposes of
undertaking any site soil or services surveys of the Required Access Area or any part of it.
4. The Developer in exercising such rights of access shall:
4.1 comply fully with the reasonable requirements of the Council in respect of health safety noise
and nuisance at all times;
4.2 carry out such tests and investigations with all reasonable due diligence and in compliance
with this Schedule 2 and cause as little disturbance and inconvenience as is reasonably
practicable;
4.3 once the tests, surveys and investigations are completed, unless the Council agrees
otherwise, immediately procure the restoration of the Required Access Area affected to the
same state and condition as it was prior to the carrying out of such tests, surveys and
investigations including the removal of any plant machinery excavate waste and rubbish
which is on such part or parts of the Required Access Area;
4.4 unless otherwise agreed by the Council forthwith make good or procure the making good of
all damage caused to the Required Access Area to the reasonable satisfaction of the Council
(acting reasonably) including the back filling and making good of any boreholes, trial pits or
other excavations; and
4.5 all fossils antiquities and other objects having artistic, historic, or monetary value and human
remains which may be found on the Required Access Area and are or shall upon discovery
be the absolute property of the Council.
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Part 2
Southern Lands
1. DEFINITIONS
In this Part 2 of this Schedule 2, the following words and expressions have the following
meanings:
"Access Licence"
means a licence giving access to the Construction Area in such form as the Parties
shall agree acting reasonably (having regard to good commercial practice)
provided always:
(a) no licence fee shall be payable;
(b) the Developer shall indemnify the Council for any loss of income relating to
the Construction Area from the date the licence is entered into until such
time as the relevant part of the Construction Area is returned to the Council;
and
(c) the Developer shall return the Construction Area to the Council as soon as
possible;
"Alternative Construction Area"
means such other area within the Required Access Area not materially less
commodious than the Construction Area as the Council shall reasonably specify
(from time to time) and is approved by the Developer;
"Construction Area"
means such part or parts of the Required Access Area as the Developer
necessarily requires in order to carry out the Critical Infrastructure and (if
applicable) any Alternative Construction Area.
2. GRANT OF ACCESS
The Council shall or will procure the grant of access to the Developer to the Construction Area
pursuant to an Access Licence insofar as access is reasonably necessary and for so long as is
reasonably necessary in order to carry out the Critical Infrastructure.
3. THE ANTICIPATED CONSTRUCTION AREA REQUIREMENT DATE
The Developer shall not be entitled to require access to any Construction Area prior to the
Anticipated Construction Area Requirement Date and the Developer shall give to the Council
not less than nine months' notice of the relevant Anticipated Construction Area Requirement
Date. The Council shall (at the Developer's reasonable and proper cost) procure that the
Developer is given unimpeded access to the Construction Area upon the Anticipated
Construction Area Requirement Date.
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4. INFRASTRUCTURE AGREEMENT
For the avoidance of doubt the provisions of this Schedule 2 shall not apply in respect of rights
of access granted pursuant to Infrastructure Agreements.
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Schedule 3
Special Conditions
1. DEFINED TERMS
1.1 Defined terms
In this Schedule 3, the following words and expressions have the following meanings:
"1990 Act"
means Part IIA of the Environmental Protection Act 1990;
"Contamination"
means the presence in, on, under or over the Property of any Hazardous Material
or Waste;
"Date of Actual Completion"
means the date on which the relevant transfer is actually completed;
"Environment"
means all or any of the following media namely the air, including without limitation
the air within buildings and within other natural or man-made structures, water and
land and any living organisms or eco-systems supported by those media;
"Environmental Authority"
means any authority, whether statutory or non-statutory or governmental or
non-governmental, having regulatory authority for Environmental Matters under
Environmental Law;
"Environmental Costs"
means all or any of the following:
(a) the costs incurred by any Environmental Authority in carrying out any
investigation, monitoring or remedial action in respect of any Environmental
Matters; and
(b) the proper and reasonable costs incurred or which would be incurred by the
Transferor in complying with the terms of an Environmental Notice;
"Environmental Law"
means all statutes, regulations and subordinate legislation and all treaties,
European Union laws and common law which at any time relate to Environmental
Matters, whether civil, administrative or criminal, including, without limitation:
(a) the 1990 Act;
(b) the Contaminated Land (England) Regulations 2006; and
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(c) Statutory Guidance and all other regulations, statutory or non-statutory
guidance, circulars, codes of practice, directives and conventions made
under any of the above,
and which are legally binding;
"Environmental Matters"
means all or any of the following in respect of the Property:
(a) Contamination;
(b) any migration or other escape of any Hazardous Materials or Waste at, from
or to the Property after the Date of Actual Completion;
(c) the creation of any state of affairs damaging or harmful to the Environment
including any radiation, common law or statutory nuisance arising from
Contamination; and
(d) the contact with and exposure of any person to Hazardous Materials or
Waste after the Date of Actual Completion;
"Environmental Notice"
means any statutory notice or legally binding requirement of any court or any
Environmental Authority relating to Environmental Matters;
"Hazardous Material"
means any substance, whether in solid, liquid or gaseous form, which is capable of
causing harm to human health or to the Environment whether on its own or in
combination with any other substance;
"Property"
means (as the case may be) the relevant part of the Council Land, the Retail Park
Land or any Southern Infrastructure Plot which is the subject of any transfer
pursuant to the provisions of this Schedule 3;
"Statutory Guidance"
means all or any of the following:
(a) statutory guidance issued under the 1990 Act; and
(b) any similar guidance, whether statutory or non-statutory, issued in relation to
other Environmental Laws under which similar responsibilities may be
imposed;
"Transferee"
means the entity to whom the Property is being transferred pursuant to the
provisions of this Schedule 3;
"Transferor"
means the entity by whom the Property is being transferred pursuant to the
provisions of this Schedule 3;
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"Waste"
means any discarded, unwanted or surplus substance irrespective of whether it is
capable of being recycled or recovered or has any value.
2. STANDARD CONDITIONS OF SALE
2.1 The Standard Commercial Conditions of Sale (Second Edition) shall apply so far as
consistent with the express terms of this Agreement save that Standard Conditions 1.3 and 2
shall not apply.
2.2 All references in the Standard Conditions to the contract or the Agreement shall be deemed
to be references to this Agreement.
2.3 Clauses 33.1, 33.2 and 33.7 of this Agreement shall replace standard condition 1.4.
3. COVENANTS FOR TITLE
Any transfer by the Transferor of any Property shall be expressed to be made with full title
guarantee provided that the covenant set out in section 2(1)(b) of the Law of Property
(Miscellaneous Provisions) Act 1994 shall be modified so that each Party shall bear their own
costs in complying with that covenant and shall contain a declaration that section 6(2) of the
Law of Property (Miscellaneous Provisions) Act 1994 shall not apply to any mortgage or
financial charge whether or not the Transferee has knowledge of the same.
4. THE TRANSFER
The transfer is to be in the form of the Disposal Land Transfer, the Southern Infrastructure Plot
Transfer or the Retail Park Land Transfer as the case may be.
5. ENTRIES IN PUBLIC REGISTERS
Section 6(2)(a) of the Law of Property (Miscellaneous Provisions) Act 1994 is to be construed
as if all entries made in any public register which a prudent buyer would inspect are within the
actual knowledge of the Transferee.
6. GENERAL MATTERS AFFECTING THE COUNCIL LAND
The Property or any part of it is sold subject to:
6.1 all local land charges (whether registered or not before 3 March 2015) and all matters
capable of registration as local land charges or otherwise registrable by any competent
authority or pursuant to statute or like instrument;
6.2 all notices served and orders demands proposals or requirements made by any local or
other public or competent authority whether before or after 3 March 2015;
6.3 all actual or proposed charges notices orders restrictions agreements conditions or other
matters arising under the town and country planning legislation;
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6.4 all rates, charges and other outgoings which affect or are charged on the Property except for
any mortgage or legal charge relating to money secured on the Property;
6.5 any unregistered interests which fall within any of the paragraphs of Schedules 1 and 3 of
the Land Registration Act 2002 (when read together is with paragraphs 7 to 13 of
Schedule 12 of that Act and any interests which fall within section 11(4)(c) of that Act;
6.6 all public or private rights of way and other rights, easements or quasi-easements and
wayleaves affecting the Property; and
6.7 all liability to repair and maintain roads, paths, conduits, fences and other like matters or to
contribute to the cost of their repair and maintenance.
7. TITLE
7.1 The Council has deduced title to the Disposal Land to the Developer and the Transferee in
accordance with Commercial Condition 6.1 and neither the Developer nor the Transferee is
entitled to raise any requisition or objection to the title except in respect of:
7.1.1 any entries registered against the title number(s) of the Disposal Land after 18 July 2014
that relate to matters that the Council has not previously disclosed to the Buyer;
7.1.2 any financial charges registered against title numbers NGL201991, NGL183323 or
MX112390; and
7.1.3 any matters arising from usual pre-completion searches.
7.2 The Disposal Land will be sold subject to and with the benefit of all covenants conditions and
other matters contained or referred to in all the registers of the title to the Disposal Land
registered at the Land Registry (other than those relating to financial charges) or (in the case
of unregistered title) the relevant good root of title.
8. ENVIRONMENTAL PROVISIONS
The Property or any part of it is sold subject to the following provisions:
8.1 Use of the Property
The Property may have been used in the past for potentially contaminative uses and the
Transferee is buying the Property (or the relevant parts thereof) in its existing state and
condition. The Transferee has been given permission and adequate opportunity to carry out
its own surveys, inspections and investigations of the Property.
8.2 Impact on the Price
The provisions of the transfer of the Property regarding the consideration payable by the
Transferee to the Transferor in respect of the Property (or the relevant part thereof) reflect
the fact that the Property is being sold in its existing state and condition and that any
remediation costs will be the responsibility of the Transferee and not of the Transferor.
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8.3 Compliance with notices and remediation
As between the Transferor and the Transferee, the Transferee will be exclusively
responsible for complying with any notices served in connection with the state and condition
of the Property after the Date of Actual Completion and for the cost of any associated
remediation action required at the Property.
8.4 Agreement as to liabilities
8.4.1 The Transferor and the Transferee agree that, from the Date of Actual Completion:
(a) if any Environmental Notice relating to the Property or any part thereof is served on
either of them then, as between the Transferor and the Transferee, the sole
responsibility for complying with the Environmental Notice is to rest with the
Transferee to the exclusion of the Transferor; and
(b) if any Environmental Authority wishes to recover Environmental Costs incurred
after the Date of Actual Completion relating to the Property or any part thereof from
either or both of the Transferor and the Transferee then, as between the Transferor
and the Transferee, the sole responsibility for the payment of the Environmental
Costs is to rest with the Transferee to the exclusion of the Transferor.
8.4.2 The agreements in paragraph 8.4.1 are made with the intention that:
(a) the Environmental Authority serving the Environmental Notice or seeking to
recover Environmental Costs should give effect to the agreement pursuant to the
Statutory Guidance; and
(b) in the absence of Statutory Guidance, the agreements in paragraph 8.4.1 should
be taken into account by the Environmental Authorities under any Environmental
Law under which similar responsibilities may be imposed in considering whether
and if so how to exercise any discretion available to them or whether and if so how
to make any relevant determination.
8.5 Sold with information
8.5.1 The Transferee acknowledges to the Transferor that:
(a) both the Transferor and the Transferee are large commercial organisations; and
(b) the Transferee has been given permission and adequate opportunity to carry out
its own investigations of the Property for the purpose of ascertaining whether, and
if so the extent to which, there is Contamination.
8.5.2 The acknowledgments in this paragraph 8.5 are made in accordance with Statutory
Guidance to exclude the Council from liability as an appropriate person to bear
responsibility for any Environmental Costs after the Date of Actual Completion.
8.6 Waiver of confidentiality
Either the Transferor or the Transferee may disclose the terms of this Schedule 3 to any
Environmental Authority.
9. LAND REGISTRY
9.1 Neither the Transferor nor the Transferee is to send this Agreement or any copy of it to the
Land Registry and is not to protect the benefit of this Agreement at the Land Registry except
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by the registration of a Unilateral Notice. The Transferor agrees not to object to the
registration of a Unilateral Notice.
9.2 The Transferee is to use its reasonable endeavours to register the transfer at the Land
Registry as soon as reasonably practicable after the completion of the relevant transfer and,
on completion of that registration, is to provide the Transferor with official copies of the title to
the Property (or the relevant part thereof) showing the Transferee registered as proprietor
together with any title plan produced or updated by the Land Registry as part of that
registration.
9.3 The Transferor shall use its reasonable endeavours to assist the Transferee in registering
the transfer of the Property to the Transferee at the Land Registry and in responding to any
requisitions raised by the Land Registry in connection therewith.
9.4 In the event the title to the Property or any part of it is unregistered, the Transferor shall
produce any original documentation in its possession or control reasonably required by the
Transferee or (where such original documentation is not available) provide a statutory
declaration to be given on behalf of the Transferor in relation to lost title deeds in a form
which is acceptable to the Land Registry to enable submission of a valid application for
registration of title in either case in order to apply to the Land Registry for first registration of
the same and shall use its reasonable endeavours to procure that the Transferee is
registered with absolute title to the same.
9.5 The Transferor shall use its reasonable endeavours to assist the Transferee in applying to
the Land Registry to remove or clean-up any entries on the title to the Property which are
historic and/or no longer of any relevance.
9.6 The Transferor shall procure that any Transferee complies with its obligations in this
paragraph 9 of this Schedule 3.
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Schedule 4
Part 1
Definitions used in this Schedule 4
In this Schedule 4 and elsewhere in this Agreement the following words and expressions shall have
the following meanings:
"Achieved IRR"
means the IRR achieved by the Developer at the Adjustment Date;
"Adjustment Date"
means six months after the First Development Phase Opening Date;
"Agreed Rate"
means the Ice Rate plus a margin of 3.08 per cent;
"Agreements"
means each of the following:
(a) this Agreement;
(b) any Planning Agreement;
(c) the CPO Indemnity Agreement;
(d) the Co-operation Agreement;
(e) Network Rail Option; and
(f) SPA;
"Ancillary Expenses"
has the meaning contained in the CPO Indemnity Agreement;
"Annual Rent Percentage"
means the Annual Ground Rent as defined in the form of varied Brent Cross Lease
and Supplemental Brent Cross Lease attached to the Deed of Variation dated 7
December 1993 referred to at paragraph (d) of the definition of "Head Lease";
"Approved Expenditure"
has the meaning contained in the CPO Indemnity Agreement;
"Assumed Lease Terms"
means the terms of any letting which would usually be applicable to an open
market letting of the relevant Unit;
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"Averaged Inducement Cost"
means the sum of:
(a)
"BX CPO Costs"
has the meaning contained in the CPO Indemnity Agreement;
"Calculation Period"
means the period from the Unconditional Date until the Adjustment Date;
"Centre Integration Costs"
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"Consents"
means all consents approvals licences agreements permissions relating to the
carrying out of the Development including all consents under the Planning Acts to
complete and use the Development and including all approval of reserved matters
under any planning permission obtained by the Developer in connection with the
Development;
"Consultants"
means any professional adviser engaged by the Developer in connection with the
Development;
"Contractor"
means any contractor or sub-contractor engaged in connection with the
construction of the Development;
"Decapitalised Overage"
"Delayed Receipts"
"Developer's Development Management Fee"
means of the sum of Development Costs
"Developer's Project Management Fee"
means of the sum of:
(a)
"Development Costs"
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"Development Management Services"
means services relating to management of the implementation of the overall
Development to the extent that they relate to services that are not outlined in the
Scope of Development Management Services contained in Part 2 of Schedule 13;
"Development Surplus"
"Estimated Development Costs"
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"Excluded Development Costs"
means
"Excess Decapitalised Overage Percentage"
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"Excess Decapitalised Overage"
"Excluded Receipts"
"Fair Annual Rack Rent"
"Financial Contribution"
"First Development Phase"
"First Development Phase Opening Date"
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"Gross Income"
means
"Gross Rents"
has the meaning contained in the Head Lease;
"Highway Order"
has the meaning contained in the CPO Indemnity Agreement;
"Historic Development Costs"
"Interest Rate"
means per annum;
"Investment Yield"
"IRR"
"IRR Hurdle"
"Land Cost"
means the sum of per
acre of the BX Site;
"Lettable Part"
means any part of the First Development Phase from time to time designed for and
reasonably capable of being let by the Developer;
"Market Value"
"Net Income"
means Gross Income less Permitted Deductions incurred or expended during the
Relevant Year;
"New Annual Rent Percentage"
means the revised Rent Percentage payable under the Head Lease with effect
from the Adjustment Date calculated in accordance with Part 3 of Schedule 4;
"Notional Interest"
means interest on Development Costs incurred or paid by the Developer:
(a) before the Unconditional Date at the Interest Rate; and
(b) on or after the Unconditional Date at the Agreed Rate;
which shall accrue on a daily basis on the Development Costs account (that is
taking the net position once Development Costs and Receipts have been off-set
against each other) and compounded at quarterly intervals on the normal quarter
days and it is agreed that Notional Interest is only relevant for the purpose of
calculating the Yield on Cost;
"Off Site Works"
means any Works to be carried out outside the Site in connection with the
Development;
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"Overage Surplus"
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"Permitted Deductions"
"Principal Yearly Rent"
means the principal rent excluding any service charge insurance premiums interest
value added tax or other sums reserved as rent;
"Professional Team"
means any architect employer's agent or representative environmental consultant
traffic engineers quantity surveyors structural engineers mechanical and electrical
services engineer, CDM co-ordinator development manager, project manager,
planning consultant or other consultant or advisor who are appointed by the
Developer or appointed pursuant to any building contract in connection with the
construction of the Development and such other consultants as may be appointed
by the Developer;
"Project Management Services"
means services relating to the supervision of the construction of the Development
and co-ordination of the professional team to the extent that they relate to services
that are not outlined in the Scope of Project Management Services contained in
Part 1 of Schedule 13;
"Recapitalised Overage"
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"Receipts"
"Red Book"
means the then current edition of the RICS valuation standards;
"Relevant Property"
means that part of the BX Site (and all buildings on it) which at the Adjustment
Date is not comprised in the First Development Phase (but excluding the Existing
Centre);
"Relevant Residential Property"
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"Relevant Year"
"Rent Amount"
means an amount equal to the Annual Rent Percentage of the Total Rent
Receivable;
"Residential Deduction"
"Residential Land"
means any land within the BX Site intended for residential use;
"Return Hurdle"
means that at the Adjustment Date the IRR Hurdle and the Yield Hurdle are
satisfied;
"Revenue Generating Parts"
means those parts of the Development which are intended by the Developer to
generate revenue (whether income or capital) including any area or structure
suitable for the parking of any vehicle, any mall, any advertising hoarding or area
or structure on which any satellite or other electrical or like equipment can be
placed and any right capable of being granted to a Third Party in relation to the use
of any Conduits or Services) but excluding any Lettable Units or any Unlet Parts;
"Road Closures"
means any stopping-up or other road closures and includes any Highway Orders;
"Total Rent Receivable"
means the Net Income during the Relevant Year;
"Unit"
means any building or unit of occupation within the Development;
"Unlet Parts"
means any Lettable Part that at the Adjustment Date is not demised by an
agreement for lease (which has become unconditional) or lease;
"Works"
means any works in connection with construction of the Development and the
performance of the Developer's Obligations contained in this Agreement including:
(a) demolition works;
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(b) remediation works;
(c) Critical Infrastructure;
(d) Off Site Works;
(e) any works required pursuant to any Planning Agreement or Infrastructure
Agreement or to satisfy any Consents;
(f) any part of the Works comprised in Centre Integration Costs; and
(g) the provision of the Whitefield Estate Replacement Units;
"Yield Hurdle"
"Yield on Cost"
Part 2
Overage Surplus – operative provisions
1. LATEST FINANCIAL APPRAISAL
The Developer shall keep the Council fully informed if it shall make any material changes from
time to time to the Latest Financial Appraisal (at least once every six months or more frequently
if reasonably requested by the Council).
2. FIRST DEVELOPMENT PHASE OPENING DATE
2.1 The Developer shall notify the Council within 10 Working Days of the occurrence of the First
Development Phase Opening Date that the First Development Phase Opening Date has
occurred.
2.2 If the Council shall dispute whether or not the First Development Phase Opening Date has
occurred or the Council do not within 10 Working Days of receipt of notification from the
Developer that the First Development Phase Opening Date has occurred confirm its
agreement that the First Development Phase Opening Date has occurred then either the
Council or the Developer may refer the matter as to when the First Development Phase
Opening Date occurred for determination to the Independent Person pursuant to clause 13
and if the matter is so referred then the First Development Phase Opening Date shall be the
date as determined by the Independent Person.
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3. YIELD ON COST AND RETURN HURDLE
3.1
4. CALCULATION AND PAYMENT OF OVERAGE
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5. OPEN BOOK ACCOUNTING
5.1 From the date of this Agreement and throughout the Calculation Period the Developer shall
maintain and operate true and faithful accounts and records of all Receipts and in connection
with the Development (whether or not the same constitute Development Costs or Receipts)
in accordance with generally accepted United Kingdom accounting practice.
5.2 The Developer shall supply to the Council at intervals of three months commencing from the
date of this Agreement a written statement setting out the Developer's reasonable analysis
of Development Costs incurred and any Receipts to the date of such statement and a
reasonable forecast as to Development Costs to be incurred in the three months following
production of such statement.
5.3 The Council shall be entitled from time to time to inspect the accounts and other records of
receipts and expenditure in connection with the Development maintained by (or on behalf of)
the Developer including supporting evidence in respect of all items referred to in them at the
offices of the Developer (or such other location reasonably specified by the Developer) and
to take copies of them and notwithstanding the foregoing the Developer shall reconcile the
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books of account every three months and the Developer shall provide or procure the
provision of quarterly statements showing the total credits and debits in the books of
account.
5.4 The Council may nominate the Council's Consultant who shall be entitled to verify whether or
not any Development Costs are properly incurred and shall be entitled to monitor actual and
anticipated expenditure and Receipts against the Latest Financial Appraisal.
5.5 The Developer shall supply to the Council's Consultant referred to in paragraph 5.4 such
explanations and other information as he/she shall require to perform the functions referred
to in paragraph 5.4 including upon reasonable request copies of all accounts, invoices,
receipts or other information in respect of items of expenditure.
5.6 The Developer shall supply to the Council an audited account of the Development Costs and
Receipts and make available for inspection an audited version of the Latest Financial
Appraisal at least every 12 months and any audited Financial Appraisal used for the
purposes of calculating any Overage Surplus must be audited by an independent auditor
who has professional indemnity insurance in such sum as the Council shall reasonably
approve having regard to normal commercial practice and the availability of cover or by the
Developer's external auditors together with a letter from the party carrying out such
independent audit or the Developer's external auditors (as the case may be) in such form as
the Council shall approve confirming that such party owes a duty of care to the Council in the
preparation of such audit.
6. DEVELOPMENT COSTS AND RECEIPTS
6.1 Receipts shall be referable only to the Development or any parts of it.
6.2 If and to the extent that any Receipt is generated or received in respect of both the
Development and any other land or premises and it is not possible to identify which part of
such Receipt is directly referable to the Development then the same shall be apportioned on
a fair and reasonable basis as shall be agreed by the Parties or determined by the
Independent Person on the application of either Party.
6.3
6.4 If and to the extent that any non-monetary consideration is received by the Developer in
respect of the Development the monetary value of that consideration shall be agreed by the
Parties or determined by the Independent Person pursuant to clause 13 on the application
of either Party.
6.5 The Developer will take all such steps as are in the reasonable opinion of the Developer
commercially prudent to ensure that payments in the nature of Receipts due for payment to
the Developer at a future date are actually received by the Developer.
6.6
6.7 If it is agreed by the Parties or determined by the Independent Person that an arithmetical
error shall have occurred in calculating the Overage Surplus or if a Receipt or Development
Cost has mistakenly been included or omitted from a calculation on the Adjustment Date
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then the error shall be rectified as soon as reasonably practicable by carrying out a
re-calculation as at the Adjustment Date.
6.8
7. GROUP ENTITIES
7.1 If and to the extent that a Group Entity incurs a Development Cost or receives a Receipt then
for the purposes of calculating the Overage Surplus if the relevant Development Cost or
Receipt would have been taken into account had it been paid or received by the Developer
in calculating the Overage Surplus then it shall be taken into account as though the
Development Cost or Receipt were paid or received by the Developer.
7.2 In respect of any relevant Development Costs or Receipts arising under paragraph 7.1 the
Developer shall procure that the provisions of this Schedule 4 shall apply (mutatis mutandis)
and that the Overage Surplus is not reduced by reason of the Developer not paying or
receiving the relevant Development Costs or Receipts.
8. FINANCIAL APPRAISAL
The Developer shall ensure that the Financial Appraisal accords with good market practice and
that any variation to the form of Financial Appraisal is approved by the Council.
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9. GOOD FAITH
9.1 The Council and the Developer agree to act in accordance with the principles of absolute
good faith in all their dealings with each other in relation to this Schedule 4.
9.2 Without prejudice to the generality of paragraph 9.1 the Developer shall not so order its
affairs as purposefully to avoid or postpone payment of the operation of the provisions of
paragraph 3 of this Part 2 of this Schedule 4 nor to lessen the quantum of any Overage
Surplus.
9.3 If any circumstances arise that were not within the contemplation of the Parties at the date of
this Agreement and which are not expressly or impliedly provided for in this Agreement the
Council and the Developer agree that they will use reasonable endeavours to resolve the
matter in a manner that operates fairly between them and so far as practical without
detriment to the interests of either Party.
10. NON-ARM'S LENGTH TRANSACTIONS
In respect of any Receipt arising from a disposal which is carried out otherwise than as a bona
fide arm's length transaction there shall be substituted for such Receipt a notional Receipt that
would have been received had such disposal been a bona fide arm's length transaction as
agreed between the Parties or determined by the Independent Person pursuant to clause 13 on
the application of either Party.
11. LIMITATIONS ON PAYMENT OF OVERAGE SURPLUS
Part 3
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Part 4
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Schedule 5
Part 1
Council Land to the North (title details)
Title number Property
MX109010 Land and buildings on the north west side of North Circular Road
NGL201991 Land lying to the north-west of North Circular Road
NGL203387 355 Hendon Way and land and buildings to the south west of Hendon Way,Hendon NW4 3BN
MX147854 Land on the North side of North Circular Road
NGL183322 Land at Park Road, St David's Place, Daniel Place, Nicholl Place, SturgessAvenue, Riverside, Layfield Crescent, Layfield Road, Layfield Close andBrent Park Road, Hendon
MX112390 Land on the northern side of North Circular Road
NGL183323 Land on the north side of North Circular Road and on the north east andsouth west sides of Brent Cross Flyover, Hendon
AGL62001 307 to 333 (odd) Hendon Way
NGL201038 Land at Claremont Way, Whitefield Avenue, Norden Point, Clare Point,Whychote Point, Anderson Court, Dyson Court, Rawlinson CourtClaremont Road, Newlyn Road and on the north west and south east sideof the North Circular Road, Hendon
Council Land in the South (title details)
Title number Property
NGL478025 Land and Buildings on the North East side of Claremont Road.
NGL201038 1 To 16 Claremont Way 1 To 16 Whitefield Avenue 1 To 44 Norden Point 1To 44 Care Point 1 To 44 Whychote Point 1 To 12 Anderson Court 1 To 12Dyson Court 1 To 12 Rawlinson Court All At Whitefield Avenue The SitesOf Claremont Way And Whitefield Avenue And Part Of The Site OfClaremont Road And Land And Buildings To The North West And SouthWest Of Claremont Road To The North East Of Newlyn Road And On TheNorth West And South East Sides Of The North Circular Road Hendon.
MX312320 Land on the North side of Claremont Way.
NGL694544 Land on the south side of Tilling Road, the north and south sides ofTempelhof Avenue and the north side of Claremont Way.
AGL133538 Electricity Sub-Station Cricklewood Lane, London.
AGL199372 Land shown edged with red on the plan of the above title filed at theRegistry and being Land to the north west of Brent Terrace, London.
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Title number Property
AGL201691 Land adjoining Nightingale Works, Brent Terrace, London.
Part 2
Title number Property
AGL141658 Clitterhouse Infant and Nursery School, Clitterhouse Junior School andClitterhouse School House, Claremont Road, London (NW2 1AB).
AGL141682 An Electricity Sub-Station, Claremont Road, London.AGL141695 Land on the north east side of Claremont Road, London.AGL141782 4, 8, 10, 22, 24 Clitterhouse Road and 8 and 14 Clitterhouse Crescent,
LondonAGL141810 22, 32, 34, 36, 64, 68, 70, 76, 80, 88 and 92 Clitterhouse Crescent, LondonAGL142241 56, 66 to 72 (even), 73, 74, 87, 91, 105, 119 Prayle Grove and 44 Walcote
Avenue, LondonAGL142312 129, 131, 137, 147, 157, 165 to 171 (odd) Prayle Grove, London (NW2
1BD).AGL142396 35, 37 and 67 Prayle Grove, LondonAGL142409 1, 9, 17, 21 and 23 Prayle Grove, LondonAGL142451 Land on the east side of Claremont Road, BarnetAGL330353 Land at Claremont Way Industrial Estate, Claremont Way, London (NW2
1BG)NGL49746 1 to 84 and 89 to 105 Brent Terrace, land lying between 84 and 89 Brent
Terrace and land on the North-East of Brent Terrace, HendonNGL556177 Land at the junction of Brent Terrace and Tilling RoadAGL142196 100, 102, 106, 112, 114, 124, 136 and 154 to 170 (even) Clitterhouse
Road, London (NW2 1DN)AGL143260 Land adjoining Tesco Stores Ltd, Tilling Road, London (NW2 1LZ)MX75501 Land on the south side of The Vale, east side of Claremont Road, Golders
Green.AGL78180 Land at Claremont Way, Industrial Estate, HendonNGL723916 Land on the north east side of Brent Terrace, HendonNGL699622 Land and buildings on the south side of Tilling Road, the south side of
Tempelhof AvenueNGL716673 Land and buildings lying to the South of Tilling Road, London
and the north east side of Brent Terrace, Brent Cross, Barnet, LondonNGL513710 3 Whitefield Avenue, London (NW2 1TH)NGL671434 14 Claremont Way, London (NW2 1AJ)NGL404224 Land on the north east side of Brent Terrace, LondonAGL95791 5 Rawlinson Court, Whitefield Avenue, London (NW2 1TN)AGL367321 Land lying to the north east side of Brent Terrace, LondonNGL720062 Land adjoining Whitefields School, Claremont Road, Brent Cross
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Schedule 6
Amendments to the Satisfactory Planning Permission
1. DEFINITIONS
Expressions in this Schedule 6 shall save where expressly stated to the contrary have the
same meanings as are ascribed to them in Part 1 of Schedule 1 of this Agreement and for the
purposes of this Agreement the following words and expressions have the following meanings:
"Appeal"
means an appeal under sections 78 and 79 under the Town and Country Planning
Act 1990 against a Refusal;
"Existing Planning Permission"
means either the Satisfactory Planning Permission and/or (as the context requires)
any New Satisfactory Planning Permission granted prior to the grant of a later New
Planning Permission;
"Implement"
means the commencement of a "material operation" as defined by section 56 of the
Planning Act;
"New Planning Agreement"
means any Planning Agreement which is required to be completed prior to the
grant of the New Planning Permission;
"New Planning Application"
means any application (including applications under section 73, 96A and 106A of
the Town and Country Planning Act 1990) together with all supporting
documentation submitted to the LPA in connection therewith in respect of the
Development or the BX Site which may from time to time be submitted by the
Developer seeking a planning permission, permission for the variation or discharge
of a planning condition or a material or non-material amendment or a modification
or discharge of a planning obligation and submitted in accordance with the
provisions of this Schedule 6 and includes any amendment to such application in
accordance with this Schedule 6;
"New Planning Permission"
means a permission or other approval granted in respect of a New Planning
Application;
"New Satisfactory Planning Permission"
means a permission granted pursuant to a New Planning Application that the
Developer Implements or notifies the Council under paragraph 8 of this
Schedule 6 it proposes to implement;
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"Permitted Application"
"Planning Decision"
means the grant of a New Planning Permission or any Refusal;
"Refusal"
means any of the refusals as referred to in the definition of "Refusal" in Part 1 of
Schedule 1.
2. OBTAINING A NEW SATISFACTORY PLANNING PERMISSION
2.1 The Developer shall not submit a New Planning Application or a Permitted Application
unless it complies with the following:
2.1.1 up to the Unconditional Date the application does not conflict with or undermine the
carrying out of the Development or which would mean that the Development could not be
carried out consistently with the Satisfactory Planning Permission;
2.1.2 after the Unconditional Date the application does not conflict with or undermine the
carrying out of the Phase 1 Minimum or otherwise would undermine the ability of the
Developer to perform its obligations under this Agreement or which would mean that the
Development could not be carried out consistently with the Existing Planning Permission;
and
2.1.3 the development comprised within any New Planning Application shall not prejudice the
carrying out of the Southern Development in accordance with or in a manner consistent
with the Existing Planning Permission or any New Southern Planning Permission (as
defined in the Co-operation Agreement) which is itself consistent with the Existing
Planning Permission obtained by or on behalf of the Council.
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2.2 The Developer may if it reasonably considers it commercially prudent to do so submit a
duplicate of the New Planning Application.
2.3 The Developer shall not submit a planning application in respect of the BX Site (other than in
respect of the Development) prior to the Unconditional Date unless it is a Permitted
Application or a New Planning Application pursuant to paragraph 2.1.
2.4 The Developer shall not submit a new stand-alone planning application prior to the
Unconditional Date for substantially the whole of the development permitted under the
section 73 Planning Permission pursuant to section 57 of the Town and Country Planning
Act 1990 without the consent of the Council (which it may withhold in its absolute discretion).
3. PROVISION OF PLANNING INFORMATION
3.1 In the event that the Developer shall submit any New Planning Application which is not a
Permitted Application (including any amendment to it) in accordance with this Schedule 6
the Developer shall provide a copy of such draft New Planning Application or amendment to
it in its final draft form to the Council for its approval in its capacity as landowner at least
15 Working Days prior to its proposed submission and the Developer shall provide to the
Council a completed copy of the New Planning Application within 10 Working Days after its
submission.
3.2 The Developer shall keep the Council reasonably informed of the progress of amendments
made to or any withdrawal of the New Planning Application and details of all communications
with the LPA or other Third Party concerned with the determination of the New Planning
Application.
3.3 The Developer shall notify the Council of any Planning Decision within five Working Days of
the relevant Planning Decision being notified to the Developer.
4. CO-OPERATION OF THE COUNCIL
Subject to the Developer having complied with the provisions of this Schedule 6, the Council
shall not object to any New Planning Application.
5. INFRASTRUCTURE AGREEMENT AND PLANNING AGREEMENT
The Council shall if and insofar as reasonably required by the Developer in order to obtain a
New Satisfactory Planning Permission enter into relevant Infrastructure Agreement(s) and/or a
New Planning Agreement and the provisions of clause 35 shall apply to any such Infrastructure
Agreement and/or any New Planning Agreement (mutatis mutandis). Provided that in the case
of any New Planning Agreement it will not impose any greater liability on the Council than that
contained in the S73 Planning Agreement and does not have an adverse effect upon the
Southern Development or the performance by the Southern Developer of any of the obligations
contained or referred to in the S73 Planning Agreement.
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6. APPLICATION BY THE COUNCIL
The Council shall not:
6.1 submit an application for planning permission in respect of the BX Site which may have a
material adverse effect on any New Planning Application or the Development;
6.2 make or lodge any objection to any New Planning Application or Permitted Application
submitted by the Developer in accordance with the provisions of this Schedule 6;
6.3 (save as may be required in the lawful discharge of its statutory duties or functions or in
response to any court order or direction) make any statement or representation to the local
planning committee of the Council, the Mayor of London or GLA (including Transport for
London), the Secretary of State or any Court regarding any unitary development plan or
planning policy document which affects the area in which the BX Site is situated which is
inconsistent with the provisions and objects of this Agreement unless the prior written
consent of the Developer has been obtained.
7. APPEAL
7.1 The Developer shall keep the Council informed in relation to any Appeal in respect of a
Planning Decision.
7.2 The Developer shall provide the Council with such information as it shall reasonably require
in relation to any Appeal.
8. NEW SATISFACTORY PLANNING PERMISSION
If a New Planning Permission shall be granted then prior to the Developer implementing the
Development of any part of the BX Site to which the New Planning Permission shall relate it
shall serve at least 20 Working Days' written notice upon the Council notifying the Council
whether it proposes to carrying out such development under the Existing Planning Permission
or the New Planning Permission (or both).
9. APPLICATION OF SCHEDULE
For the removal of doubt the provisions of this Schedule 6 shall not relate to planning
applications in respect of such part of the Development in respect of which Existing Planning
Permission or the New Planning Permission has been implemented and the relevant
Development substantially carried out.
10. MODIFICATIONS OF S73 PLANNING AGREEMENT
10.1 The Council and Developer shall if reasonably requested by the other enter into a Deed of
Modification (as defined in Schedule 15) and each Party shall procure that any successors
in title to or persons deriving title from such Party or such successors in respect of the site of
the Southern Development or the Development who are bound by the S73 Planning
Agreement shall also enter into any such Deed of Modification.
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10.2 The costs of entering into and completing the Deed of Modification shall be borne by the
Party requesting that the Deed of Modification be entered into.
10.3 The form of the Deed of Modification will be agreed by the Parties acting reasonably.
10. DISPUTES
Any dispute regarding any matter relating to this Schedule 6 may be referred by any Party to
the Independent Person for determination in accordance with clause 13.
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Schedule 7
Approved Council's Costs
PDA Contents/Clauses Brief Description of Council'sObligation/Costs to be incurred
Council's CostsReimbursable byDeveloper Yes/No
1. Definitions None. Not Applicable.
2. Interpretation None. Not Applicable.
3. Approvals andConsents
Mechanism for responding to requestsfor Approvals.
Not Applicable.
4. PDA Confidentiality None. Not Applicable.
5. Satisfaction of StagingConditions
Refer to Schedule 1.
6. Development Refer to Schedule 1.
6.1 Unconditional Date None. Not Applicable.
6.2 Developer's Obligation(to carry out Phase 1Minimum)
None. Not Applicable.
6.3 Developer's Obligation(to carry out remainderof Development)
None. Not Applicable.
6.4 Programme Developer to supply Programme to theCouncil.
Not Applicable.
6.5 Cessation or suspensionof DevelopmentObligations
Developer's obligations to cease. Not Applicable.
7. Default and ExpiryProvisions
Service of Termination Notices byCouncil/Receipt of Termination Noticeby Council.
Yes.
9. Alienation This relates to alienation by theDeveloper and appropriate NovationAgreements and ability to assign andnovate the Agreement. Entry by theCouncil into the Novation Deed.Removal of restriction.
Yes.
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PDA Contents/Clauses Brief Description of Council'sObligation/Costs to be incurred
Council's CostsReimbursable byDeveloper Yes/No
11. Procurement Compliance by the Developer with thepublic procurement regime.
Yes as referred to inclause 11.
12. Adjustment of AnnualRent Percentage
Refer to Schedule 4. Refer to Schedule 4.
13. Independent Person Referral of disputes to Third Party. No, costs will be borne asprescribed by theIndependent Person orotherwise jointly betweenthe Parties.
14. Council's Costs (This clause is referable to the subjectmatter of this).
15. Head Lease Variation,Transfer of DisposalLand, Northern PublicRealm, SouthernInfrastructure Plotsand the Deed ofEasement
Conveyancing obligations on the part ofthe Council.
Yes.
16. Public Sector BodyRequirements
16.1 Statutory powers Statement as to statutory powers. No.
16.2 Anti Corruption provision Statement as to circumstances in whichAgreement may be terminated.
No.
16.3 Freedom of InformationAct 2000 etc.
Consultation with Developer. Yes.
17. Notices Method of service of Notices. Yes in relation to receiptedservice of notices.
18. Good Faith Statement. Not Applicable.
19. No Partnership Statement. Not Applicable.
20. No Agency Statement. Not Applicable.
21. Entire Agreement Statement. Not Applicable.
22. Rights of Third Parties Statement. Not Applicable.
23. ConstructionContracts (England &Wales) ExclusionOrder 1998
Statement. Not Applicable.
24. Personal ObligationsLate Payment and NoSet-Off
Statement. Not Applicable.
25. Indemnities Statement in relation to Indemnities. Not Applicable.
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PDA Contents/Clauses Brief Description of Council'sObligation/Costs to be incurred
Council's CostsReimbursable byDeveloper Yes/No
26. Governing Law andJurisdiction
Statement. Not Applicable.
27. Representations andWarranties
Statement. Not Applicable.
28. Opinion Letter Provision of Opinion Letters byDeveloper and review by Council.
Yes.
29. Council's Obligations Obligations on the part of the Council. Yes.
30. Validity Statement. Not Applicable.
31. Cumulative Remedies Statement. Not Applicable.
32. Variations Statement. Not Applicable but yes inrelation to the cost ofeffecting any variation orgiving consideration toproposed variation.
33. Value Added Tax Statement. Not Applicable.
34. Confidentiality Statement. Not Applicable save to theextent that the Councilprocure that third partieskeep informationconfidential.
35. Infrastructure Works Obligations on the part of the Council. Yes.
36. Release of theDeveloper
Release of the Developer followingsatisfaction by the Developer of itsobligations.
Yes.
37. Appropriation ofRelevant Parts ofCouncil Land
Appropriation of Council land Yes.
38. Living Bridge andPedestrian BridgePrinciples
See below. See below.
39. Contribution TowardsProcurement costs andGround Investigation
See below. See below.
41. Joint PlanningDocuments
Approval of site-wide strategies. See below.
42. Primary Sub Station Approvals. No.
43. Retail Restriction Statement. No.
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PDA Contents/Clauses Brief Description of Council'sObligation/Costs to be incurred
Council's CostsReimbursable byDeveloper Yes/No
44. Limited Recourse Statement. No.
48. Access Areas Approvals and variations YesSchedule 1 – StagingConditions
Part 1 – Planning Condition Approval of form of PlanningApplication.
Yes.
Review of information supplied byDeveloper to Council.
Yes.
Co-operation of Council with Developer. Yes.
Third Party Planning – Proceedings. Yes.
Part 2 – Highways Condition Determination as to whether HighwaysConditions have been satisfied.
No.
Review of Information. Yes.
Part 3 – InfrastructureCondition
Determine whether the InfrastructureCondition has been satisfied.
Yes.
Join in an Infrastructure Agreement. Yes.
Part 5 – Pre-Let Condition TO RECEIVE NOTIFICATION OFWHETHER THE DEVELOPER HASACHIEVED THE PRE-LETCONDITION/REVIEWING ERV.
Yes.
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PDA Contents/Clauses Brief Description of Council'sObligation/Costs to be incurred
Council's CostsReimbursable byDeveloper Yes/No
Part 8 – Site AssemblyCondition
RECEIPT OF NOTIFICATION FROMTHE DEVELOPER THAT THE SITEASSEMBLY CONDITION HAS ORHAS NOT BEEN SATISFIED.
No.
Part 9 – CPO Condition Obligations in relation to CPO. Yes, as set out in Part 9.
Schedule 2 – Licence toOccupy
LICENCE FOR DEVELOPER TOOCCUPY COUNCIL LAND.
Yes in relation to settlingform of Licence.
Schedule 3 – SpecialConditions
CONVEYANCING CONDITIONS. Not applicable.
Schedule 4 – Overage REVIEW OF FINANCIAL APPRAISALIN ORDER TO TELL THEM WHETHEROVERAGE IS PAYABLE.
Yes - Audit of FinancialInformation.
Schedule 5 – Council Land DEDUCTION OF TITLE BY COUNCIL. Yes.
Schedule 6 – Amendments toSatisfactory PlanningPermission
Review of New Planning Application /New Infrastructure Agreements / NewPlanning Agreements
Yes.
Schedule 7 – ApprovedCouncil Costs
CATEGORIES OF COSTSREPAYABLE BY DEVELOPER TOCOUNCIL.
No.
Schedule 8 – Council CostsProtocol
PROTOCOL FOR AGREEMENT OFCOUNCIL'S COSTS.
No.
Schedule 9 – Living Bridgeand Pedestrian BridgePrinciples
Documenting the Living Bridge andPedestrian Bridge Principles.
Yes.
Schedule 10 – Contributiontowards procurement costs /ground investigation
Mechanism for withdrawing monies No.
Schedule 11 – WhitefieldEstate Replacement
Council obligations / Whitefieldrelocation.
Yes – see paragraph 18.
Schedule 12 – Commerciallysensitive Information
Statement No.
Schedule 13 – Scope ofProject Management andDevelopment ManagementServices
Statement. No.
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PDA Contents/Clauses Brief Description of Council'sObligation/Costs to be incurred
Council's CostsReimbursable byDeveloper Yes/No
Schedule 14 – Suspensionprovisions
Suspension Costs Yes.
Schedule 15 – Joint PlanningDocuments
Council review of Joint PlanningDocuments and support in respect ofany Revised Energy Strategy
Yes.
Schedule 16 – PrimarySubstation
Grant of Substation Lease. Yes.
Schedule 17 – OutstandingPlanning Requirements
All costs of compliance withobligations contained in thisSchedule
Yes
Schedule 18 – Current DraftProgramme
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Schedule 8
The Council's Costs Protocol
1. THE COUNCIL
1.1 The Council shall use reasonable endeavours to notify the Developer of its intention to incur
Council's Costs as soon as reasonably practicable together with the reason why the Council
requires to make the appointment in question or to give the relevant instruction to the
Council Officer.
1.2 The Council shall use all reasonable endeavours to keep the amount of the Council's Costs
to as low a sum as is reasonably obtainable.
1.3 The Council shall use reasonable endeavours to notify the Developer as soon as reasonably
practicable in respect of the following in relation to any proposal to appoint a Council
Consultant or to give an instruction to a Council Officer namely:
1.3.1 the identity of the relevant Council Consultant or Council Officer;
1.3.2 the terms and scope of the relevant appointment and (so far as applicable) details of the
relevant instruction;
1.3.3 the proposed fee arrangement including hourly rates and in the case of any instruction of
a Council Officer, the anticipated cost of the Council Officer carrying out the relevant
instruction; and
1.3.4 an estimate of the likely total fees or costs (including disbursements) together with a
breakdown and explanation as to how the estimate is arrived at.
1.4 The Council shall use reasonable endeavours to negotiate any appointment on terms
requiring the Council Consultant to provide itemised invoices not less frequently than every
three months including hourly rates (so far as applicable).
1.5 The Council acknowledge that in appropriate circumstances it may be reasonable to seek to
negotiate with the Council's Consultant a fixed or capped fee arrangement.
1.6 The Council shall give careful consideration to any representations made by the Developer
in connection with any aspect of the Council's Costs and to use reasonable endeavours to
respond to those representations constructively as soon as reasonably practicable.
2. THE DEVELOPER
2.1 The Developer acknowledges and will respect the need for the Council to obtain (where in
the Council's reasonable opinion it is appropriate to do so) independent or professional
advice and assistance in relation to its obligations contemplated under this Agreement and
will use reasonable endeavours to act in such manner as shall facilitate and support the
Council in carrying out such obligations as expeditiously and effectively as is reasonably
practicable.
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2.2 If the Developer objects to:
2.2.1 any proposed appointment of the Council Consultant or instruction of the Council Officer;
2.2.2 the identity of the proposed Council Consultant;
2.2.3 the proposed terms of the relevant appointment or the nature of the relevant instruction to
the Council Officer; or
2.2.4 the quantum of the Council's Costs on the basis that they are not reasonable or proper,
then the Developer shall use reasonable endeavours to notify the Council as soon as
reasonably practicable and shall use reasonable endeavours to work with the Council to
resolve any matters which shall be in dispute and if the matter cannot be resolved then either
Party may refer the matter to an Independent Person for determination in accordance with
clause 13.
2.3 The Developer shall not object to the identity of the Council's Consultant where such
Consultant is an existing consultant in relation to the proposed Development as at 3 March
2015.
3. GENERAL
The Council and the Developer agree to keep this Protocol under review such that if either Party
shall reasonably require any amendment to the Protocol then the Parties shall negotiate in good
faith in respect of that amendment.
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Schedule 9
Part 1
Living Bridge Principles
1. CONSTRUCTION AND OWNERSHIP
The intention of the Parties (subject to the agreement of TFL) is as follows:
1.1 The Living Bridge (Bridge Structure B7) will be constructed by TfL, as the Highway Authority
and will consist of a pedestrian footway and cycleway across the A406 North Circular Road
based on the draft approval in principle (BX C20 forming part of the 73 Application). The
intention is to provide better integration between the Development and the Southern
Development.
1.2 The structure will belong to TfL (under the Infrastructure Agreement) and the surface will
belong to the Council. Subject to dedication, the Council will retain the surface and then
enter into a lease of the surface with the Developer on the terms of the Surface Lease.
1.3 The Surface Lease will be granted by the Council to the Developer upon Practical
Completion of the Living Bridge.
1.4 The Developer's Solicitors will produce the draft of the Surface Lease and submit it to the
Council's Solicitors for approval by the Council. If the Parties are unable to reach agreement
on the form of the Surface Lease within 15 Working Days of submission of the draft of the
same to the Council's Solicitors either Party may thereafter refer the matter to the
Independent Person under the terms of clause 13 of this Agreement.
2. RESERVED MATTERS APPROVAL
The application for reserved matters approval in respect of the Living Bridge will be made by the
Developer, in consultation with the Council, incorporating the Council's reasonable
requirements, by reference to the plans attached to Annexure 9 (but only to the extent that TFL
have approved the location of the Living Bridge in accordance with such plans) in accordance
with the Programme.
3. INFRASTRUCTURE AGREEMENT
The Living Bridge is to be the subject of an Infrastructure Agreement with TfL. The Developer
shall be primarily responsible for negotiating the terms of this Agreement in consultation with the
Council, incorporating their reasonable requirements. The Council will need to be a party to this
Agreement and the provisions relating to Infrastructure Agreements in clause 35 of this
Agreement shall apply (mutatis mutandis).
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4. REPAIR
The intention is that:
4.1 under the terms of the Infrastructure Agreement TfL will be responsible for the repair of the
structure of the Living Bridge; and
4.2 under the terms of the Surface Lease:
4.2.1 the Developer will be responsible for repairing the surface of the Living Bridge Demise.
Repair will include day to day maintenance and cleaning; and
4.2.2 the Council will be responsible for repairing the Ramp.
5. ESTATE MANAGEMENT
The Parties are to agree an estate management strategy which is enforceable by the Parties
through the Surface Lease and acknowledges the significance of the Living Bridge as a high
quality gateway to the Development and to the Southern Development. The estate management
strategy shall address such issues as, CCTV, policing, lighting, street furniture, landscaping and
seasonal decorations.
6. AIRSPACE
The airspace above and beneath the Ramp shall belong to the Council together with any
property interests relating to the landing of the Ramp.
7. DEED OF EASEMENT AND OTHER DOCUMENTATION
The Parties will enter into such deeds of easement and like other documents shall be necessary
and as either Party shall reasonably require (having regard to the Deed of Easement) in order to
record the above principles provided always that the Council's obligation to grant rights over
land that it owns shall only extend to the Required Easement Area. The timetable for agreeing
these documents will be agreed by the Parties acting reasonably having regard to the Indicative
Construction Programme and where applicable Practical Completion of the Relevant Works.
Clause 15.7.2 shall apply to this paragraph (mutatis mutandis).
8. DISPUTE RESOLUTION
Clause 13 of this Agreement shall apply to any dispute in relation to these principles.
Part 2
Pedestrian Bridge Principles
1. CONSTRUCTION AND OWNERSHIP
The intention of the Parties (subject to the agreement of TfL) is that the Pedestrian Bridge
(Bridge Structure B4) will be constructed by TfL, as Highway Authority (or by the Council as
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agent of the Highway Authority), and will consist of a pedestrian foot bridge over the A406 North
Circular Road, based on the draft approval in principle (BXC20 forming part of the S73
Application) and referred to as Bridge Structure (B4) in this Agreement. The ownership of the
Pedestrian Bridge shall be a matter to be agreed between the Council and TfL.
2. SOUTHERN DEVELOPMENT
The Pedestrian Bridge forms part of Phase 3 of the Southern Development and it is likely that if
the Pedestrian Bridge is constructed this will occur after the completion of Phase 1A (North).
3. CONSTRUCTION OF PHASE 1A (NORTH)
The Developer acknowledges that the design, form, layout and construction of Phase 1A
(North) must be carried out in such a manner as to enable the Pedestrian Bridge to link into the
public access routes within Phase 1A (North).
4. NECESSARY CONSENTS
Any application for Necessary Consents in respect of the Pedestrian Bridge will be made by the
Council in consultation with the Developer incorporating the Developer's reasonable
requirements and the Council shall procure that the Developer's approval is obtained to the
design and detail of the Pedestrian Bridge (including all draft reserved matters).
5. ACCESS
The Developer shall grant the Council and those authorised by it access by way of licence to
such part of the Development as may be approved by the Developer which does not interfere
with the operation of the shopping centre insofar as the Council shall reasonably require in
connection with the design and construction of the Pedestrian Bridge (subject to the terms of
such licence being agreed by the Parties acting reasonably or otherwise in accordance with the
terms of the relevant Infrastructure Agreement).
6. MINIMISE ADVERSE EFFECTS
The Council will procure that the location, design, form and construction of the Pedestrian
Bridge (if it is built) will be carried out by the Council in such manner as shall minimise any
adverse effect on the design, layout, form or operation of Phase 1 (North) or the Existing
Centre.
7. INFRASTRUCTURE AGREEMENT
The Pedestrian Bridge is to be the subject of an Infrastructure Agreement with TfL. The Council
shall be primarily responsible for negotiating the terms of this agreement in consultation with the
Developer incorporating their reasonable requirements. The Developer will need to be a party to
this agreement and the provisions relating to Infrastructure Agreements in clause 35 of this
Agreement shall apply (mutatis mutandis).
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8. ESTATE MANAGEMENT
The Parties acknowledge that the estate management strategy shall address any relevant
issues arising in relation to the Pedestrian Bridge.
9. DEED OF EASEMENT AND OTHER DOCUMENTATION
The Parties will enter into such deeds of easement and like other documents (including a deed
of variation to the Head Lease) as shall be necessary and as either Party shall reasonably
require (having regard to the Deed of Easement) in order to record the above principles
provided always that the Council's obligation to grant rights over land that it owns shall only
extend to the Required Easement Area. The timetable for agreeing these documents is to be
agreed by the Parties acting reasonably having regard to the programme (prepared by the
Council) relating to the construction of the Pedestrian Bridge. Clause 15.7.2 shall apply to this
paragraph 9 (mutatis mutandis).
10. DISPUTE RESOLUTION
Clause 13 of this Agreement shall apply to any disputes in relation to these principles.
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Schedule 10
Contribution towards procurement costs/ground investigation
1. ADDITIONAL DEFINITIONS
"Approved Purposes"
means Ground Works and Procurement Activities;
"Designated Account"
means a separate bank account with a United Kingdom clearing bank opened by
the Council;
"Financial Contribution"
"Ground Works"
means:
(a) any ground work survey or investigation (intrusive or otherwise) or related
activity in connection with any proposed development of the Southern Site;
and
(b) any works of remediation to the Southern Site or preparation for the same or
related activity which the Council reasonably requires to be carried out in
connection with the Southern Development;
"Procurement Activities"
means the procurement or appointment of any Third Party by the Council in
connection with the carrying out of the proposed Southern Development whether
under the Public Procurement Regime or otherwise and including any matter, work
or professional advice reasonably required in connection with any procurement
process whereby a Third Party is selected or rejected and, for the avoidance of
doubt, any failed or repeated procurement process.
2. DESIGNATED ACCOUNT
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3. EVIDENCE OF PERFORMANCE
The Council shall provide reasonable evidence to the Developer within 10 Working Days of
request to satisfy the Developer (acting reasonably) that the requirements of this Schedule 10
have been and will continue to be satisfied.
4. RETURN OF UNUSED BALANCE
Any unused balance of the Financial Contribution and any interest earned thereon which
remains in the Designated Account on the tenth anniversary of the Unconditional Date shall be
forthwith returned to the Developer.
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Schedule 11
Part 1
Whitefield Estate Replacement Units
1. DEFINITION
In this Schedule 11 and, so far as applicable, elsewhere in this Agreement the following
definitions shall apply:
"Access Licence"
means a licence for the giving of access to the Whitefield Estate Existing Units, the
Rosa Freedman Facility or the relevant Relocation Site (as applicable) in such form
as the Parties may agree (acting reasonably);
"Affordable Housing"
has the meaning contained in the S73 Planning Agreement;
"Affordable Housing Provider"
has the meaning contained in the S73 Planning Agreement and "AHP" shall be
construed accordingly;
"Affordable Housing Standards"
has the meaning contained in the S73 Planning Agreement;
"AHP Lease"
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"AHP Selection Criteria"
has the meaning contained in the S73 Planning Agreement;
"Alternative Relocation Site"
means a site or sites within the Site which satisfy the Alternative Relocation Site
Criteria and replace one or more of the Relocation Sites determined in accordance
with paragraph 6;
"Alternative Relocation Site Criteria"
means the following criteria:
(a) the criteria set out in the S73 Planning Agreement;
(b) whether the site is in a suitable residential area in the Council's reasonable
opinion; and
(c) is otherwise a reasonably suitable alternative site in the Council's reasonable
opinion;
"Anticipated Infrastructure Requirement Date"
means the estimated date on which access is required:
(a) to the Required Access Area; and
(b) the Rosa Freedman Facility,
for the purposes of commencing the carrying out of the relevant Infrastructure
Works or if earlier for carrying out the Demolition Works (disregarding site
investigations works);
"Anticipated Relocation Site Requirement Date"
means the estimated date on which access is required to the relevant Relocation
Site;
"Anticipated Requirement Dates"
means the Anticipated Infrastructure Requirement Date and/or the Anticipated
Relocation Site Requirement Date;
"Base Specification Requirements"
means the following:
(a) the removal of all foundations and basements;
(b) the capping of services;
(c) levelling to 15 cms below the level of the surrounding land (such that it can
be used for storing materials and parking);
(d) wooden hoarding to secure the relevant sites; and
(e) a lockable gate;
"Brent Terrace Triangle Sites"
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"Claremont Avenue"
has the meaning contained in the S73 Planning Agreement;
"Council's Retained Land"
means the Council's freehold and leasehold interests within the Southern
Development;
"Delivered"
has the meaning contained in the S73 Planning Agreement;
"Demolition Documents"
means the method statements, programme of works, plans, specifications,
approvals etc. and other documents reasonably specified by the Council, relating
to the Demolition Works;
"Demolition Licence"
means a licence permitting the Developer or Infrastructure Provider to carry out the
Demolition Works in the form set out in the attached Annexure 12 with such
variations as the Council shall reasonably require;
"Demolition Start Date"
means the date of the commencement of the Demolition Works;
"Demolition Works"
means the demolition of the Whitefield Estate Existing Units or if applicable, some
part thereof;
"Drawdown Notice"
means a notice from the Developer to the Council requiring the Council to grant the
AHP Lease to the Preferred Affordable Housing Provider;
"Existing Leaseholder Tenant"
means a tenant (or tenants) who has effected a Right to Buy Completion in respect
of an Existing Unit of which he/she is a tenant;
"Existing Social Rent Tenant"
means a tenant (or tenants) of the Whitefield Estate Existing Units who has not
effected a Right to Buy Completion in respect of an Existing Unit of which he/she is
a tenant or occupier and "Existing Social Rent Units" shall be construed
accordingly;
"Existing Tenants"
means the Existing Leaseholder Tenants and the Existing Social Rent Tenants;
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"Existing Units"
"Fairview Triangle Site"
"Ground 10A"
means Ground 10A and part IV of Schedule 2 of the Housing Act 1985;
"Ground 10A Consultation"
means a written notice to and consultation with secure tenants (within the meaning
of the Housing Act 1985) to be undertaken by the Council pursuant to Ground 10A;
"Handback Sites"
means those parts of the Infrastructure Sites being the subject of an Infrastructure
Agreement to the extent that they are not subject to a requirement to dedicate or
are to be adopted;
"Handback Specification"
means a specification to be agreed by the Council and Developer acting
reasonably (incorporating the Base Specification Requirements) in respect of the
condition in which the Handback Sites are to be returned to the Council following
completion of the relevant Infrastructure Works under the relevant Infrastructure
Agreement;
"Infrastructure Provider"
means the statutory body under the relevant Infrastructure Agreement responsible
for delivering the relevant Infrastructure Works;
"Infrastructure Site(s)"
means the Required Access Area (to the extent that this is within the Whitefield
Estate) and the Rosa Freedman Site;
"Infrastructure Works"
means the works to be constructed as part of the Northern Development relating
to:
(a) the Living Bridge; and/or
(b) Claremont Avenue;
"Living Bridge"
has the meaning contained in the S73 Planning Agreement;
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"New Build Homebuy Units"
has the meaning contained in the S73 Planning Agreement;
"Northern Development"
has the meaning contained in the S73 Planning Agreement;
"Preferred Affordable Housing Provider"
has the meaning contained in the S73 Planning Agreement;
"Relocation Costs"
means the reasonable and proper costs and expenses properly incurred by the
Council in connection with the relocation of the Existing Tenants in accordance
with the Residential Relocation Strategy as set out in Part 2 of this Schedule 11;
"Relocation Programme"
means the programme for the Delivery of the Whitefield Estate Replacement Units
(Part 1) and the relocation of the Existing Tenants agreed by the Council and the
Developer acting reasonably having regard to the provisions of the S73 Planning
Agreement;
"Relocation Sites"
"Replacement Facilities"
means the facilities to be built to provide the Whitefield Estate Replacement Units
(Part 1);
"Residential Relocation Strategy"
has the meaning contained in the S73 Planning Agreement;
"Right to Buy Completion"
means the completion of the grant of a lease or transfer of the freehold of part of
the Whitefield Estate by the Council to an Existing Social Rent Tenant pursuant to
a Right to Buy Notice;
"Right to Buy Notice"
means a notice served by an Existing Social Rent Tenant upon the Council
exercising his or her statutory right to buy the leasehold/freehold of their Existing
Unit in accordance with the provisions of the Housing Act 1985 or any other
relevant legislation;
"Rosa Freedman Existing Units"
means the 25 assisted living units within the Rosa Freedman Facility;
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"Rosa Freedman Existing Residents"
means the occupiers of the Rosa Freedman Existing Units;
"Rosa Freedman Facility"
means the facility at the Rosa Freedman Site housing the Rosa Freedman Existing
Units and the Rosa Freedman nursing home;
"Rosa Freedman Site"
means the site shown coloured brown on Plan 13 on which the Rosa Freedman
Facility is situated;
"Schedule 2A"
means Schedule 2A of the S73 Planning Agreement;
"Shared Equity"
has the meaning contained in the S73 Planning Agreement;
"Site"
has the meaning contained in the S73 Planning Agreement;
"Social Rented Housing"
has the meaning contained in the S73 Planning Agreement;
"Social Rented Units"
has the meaning contained in the S73 Planning Agreement;
"Sold Unit"
"Southern Development"
"Special Conditions"
has the meaning contained in Schedule 3 (mutatis mutandis);
"Station Site"
"Station Site Transfer"
means a transfer of the Station Site (or an Alternative Relocation Site approved in
accordance with paragraph 6) in such form as the Developer and the Council shall
agree (acting reasonably);
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"Unit"
means a unit which is one of the Whitefield Estate Replacement Units (Part 1) or a
unit in the Replacement Facility as the case may be;
"Whitefield Estate"
"Whitefield Estate Existing Units"
"Whitefield Estate Replacement Units (Part 1)"
"Whitefield Estate Replacement Units (Part 2)"
"Whitefield Estate Replacement Units"
"Unrestricted Residential Unit"
2. RESIDENTIAL RELOCATION STRATEGY, VACANT POSSESSION AND APPROPRIATION
2.1 The Council and the Developer shall agree the Residential Relocation Strategy in
accordance with the S73 Planning Permission.
2.2 If the Council and the Developer have agreed as part of the Residential Relocation Strategy
that the Council will seek vacant possession of the Existing Social Rent Units, then the
Council shall:
2.2.1 obtain authority for and conduct the Ground 10A Consultation at the appropriate time;
and
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2.2.2 use reasonable endeavours:
(a) to obtain the Council's Statutory Consents to the Ground 10A Consultation in
accordance with the programme contained within the Residential Relocation
Strategy; and
(b) enforce the Ground 10A procedure and obtain vacant possession of the Existing
Social Rent Units.
2.3 The Developer shall give to the Council not less than 12 months' notice of the Anticipated
Infrastructure Requirement Date.
2.4 The Council shall use reasonable endeavours to obtain vacant possession of the Rosa
Freedman Existing Units by the Anticipated Infrastructure Requirement Date and shall notify
the Developer as soon as vacant possession has been obtained.
2.5 The Council shall obtain vacant possession of the nursing home within the Rosa Freedman
Facility by the Anticipated Infrastructure Requirement Date and shall notify the Developer as
soon as vacant possession has been obtained.
2.6 If not already obtained, the Council shall obtain vacant possession of the Brent Terrace
Triangle Sites and the Fairview Triangle by the relevant Anticipated Relocation Site
Requirement Date.
3. AFFORDABLE HOUSING PROVIDER SELECTION
3.1 The Developer will appoint an Affordable Housing Provider in connection with performance
of its obligations in paragraph 4 who satisfies the AHP Selection Criteria and whose identity
shall otherwise be approved by the Council.
3.2 The Council and Developer acknowledge, without obligation, that the process of appointing
the Affordable Housing Provider may involve on either part a selection process which
includes the Whitefield Estate Replacement Units (Part 2).
4. DELIVERY
The Developer shall provide the Whitefield Estate Replacement Units (Part 1):
4.1 in accordance with the Relocation Programme;
4.2 in accordance with the S73 Planning Permission and S73 Planning Agreement; and
4.3 in compliance with the Affordable Housing Standards.
5. RELOCATION SITES FOR WHITEFIELD ESTATE REPLACEMENT UNITS
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6. ALTERNATIVE RELOCATION SITES
7. TRANSFER OF THE STATION SITE
8. AHP LEASE TO PREFERRED AFFORDABLE HOUSING PROVIDER
9. ANTICIPATED REQUIREMENT DATES
The Developer shall keep the Council informed from time to time (and upon reasonable request
from the Council) of the Anticipated Requirement Dates and in estimating such dates the
Developer shall act reasonably.
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10. TENURE
11. RE-LETTING OF EXISTING UNITS
12. ACCESS LICENCE
The Council shall grant to the Infrastructure Provider or the Developer (as the case may be)
access (in order to carry out the Critical Infrastructure) to the Whitefield Estate Existing Units
and the Rosa Freedman Facility following vacant possession being obtained in respect of the
same subject to the terms of access having been previously approved by the Council as part of
the relevant Infrastructure Agreement or pursuant to an Access Licence.
13. PHASED RELOCATION
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14. DEMOLITION WORKS
14.1 Prior to commencing the Demolition Works, the Developer will at its own expense prepare
the Demolition Documents and will submit them to the Council in duplicate for approval.
14.2 Within 15 Working Days from receipt by the Council of the drafts of the Demolition
Documents (or, where appropriate, any revised versions of them) the Council may either:
14.2.1 approve them in writing; or
14.2.2 by written notice to the Developer refuse to give its approval together with reasons as to
why the same are not approved.
14.3 If the Council refuses to give its approval to the drafts of the Demolition Documents, the
Developer may either:
14.3.1 make amendments to them that the Council may reasonably require and resubmit them
to the Council and the provisions of this paragraph 14 of this Part 1 of this Schedule 11
shall re-apply to any such drawings re-submitted (mutatis mutandis); or
14.3.2 if it considers that the Council is unreasonably withholding its approval refer the matter for
determination by an Independent Person on the application of either Party pursuant to
clause 13 and if it is determined by the Independent Person that the Council is
unreasonably withholding its approval then the Council's approval shall be deemed to
have been given on the date of such determination.
14.4 The Developer will not commence the Demolition Works prior to the completion of the
Demolition Licence and (if applicable) the Access Licence in respect of such land upon
which the relevant Demolition Works are to be undertaken.
14.5 The Parties shall enter into the Demolition Licence within 10 Working Days of the later of the
date of obtaining the Council's approval pursuant to this paragraph 14 of this Part 1 of this
Schedule 11 (or it being deemed by the Independent Person) or the date on which vacant
possession of the Infrastructure Sites is obtained.
14.6 The Developer will as soon as reasonably practicable after the occurrence of such event
inform the Council of:
14.6.1 the date of the commencement of the relevant Demolition Works; and
14.6.2 the date of Practical Completion of the relevant Demolition Works.
14.7 The Developer may in conjunction with the Demolition Works carry out the demolition of
such other residual buildings erected on the relevant part of the Council's Retained Land as
the Council shall have previously agreed in writing (the Council acting in its absolute
discretion).
14.8 The Developer shall effect or cause to be effected all necessary and sufficient third party
public liability insurance in respect of the relevant Demolition Works against which it is
possible to insure with a reputable insurance company or with Lloyds' Underwriters of repute
and the Developer will promptly on written request produce a copy of such policy or policies
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to the Council together with evidence of payment of the current premiums in respect of such
policy or policies.
15. HAND BACK
15.1 The Developer and Council shall as soon as reasonably practicable agree the Handback
Specification.
15.2 The Developer shall use reasonable endeavours to procure that the Handback Sites are
returned to the Council in accordance with the Handback Specification within three months
of the relevant Infrastructure Works being completed pursuant to the relevant Infrastructure
Agreement.
15.3 To the extent that the Developer has not complied with its obligations under paragraph 17.2,
the Council may give the Developer written notice of that non-compliance, and the Developer
shall remedy the non-compliance within three months of such notice. If the Developer fails to
do this, the Council may carry out the relevant outstanding works in order to comply with the
Handback Specification and the Developer shall repay to the Council the reasonable and
proper costs of doing so within 10 Working Days of demand.
16. RELOCATION COSTS
The Developer has agreed to pay to the Council the Relocation Costs in accordance with
clause 14 and Schedule 7.
17. S73 PLANNING AGREEMENT
The Developer has agreed with the Council, without prejudice to any other obligation in this
Agreement relating to the S73 Planning Agreement, to comply with Schedule 2A but in the
event of any conflict between the provisions of this paragraph and Schedule 2A, then that
Schedule 2A shall prevail.
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Part 2
Whitefield Estate Replacement Units – Relocation Costs
The reasonable and proper costs (to which the protocol on Council's Costs shall apply as set out in
Schedule 8) in connection with any steps taken by the Council under Part 1 of this Schedule 11
including the implementation of the Residential Relocation Strategy which costs shall include but not
be limited to:
1. legal and other professional fees including stamp duty land tax and Land Registry fees;
2. court fees reasonably and properly incurred in order for the Council to secure possession of any
of the Existing Units;
3. costs incurred in securing Ground 10A Notices and/or any other reasonable costs associated
with evidencing the existence of the statutory ground pursuant to which such notice is served;
4. costs associated with an early acquisition decanting strategy;
5. project management staffing costs for the Council Officers and Barnet Homes, including
reasonable Housing Officer time spent on decanting issues;
6. the Council's property services costs for obtaining consents and dealing with the land transfer of
Brent Terrace Triangle Sites;
7. decant management costs (whether this function is undertaken by the Council, Barnet Homes
or an AHP including support to vulnerable residents, including those in Rosa Freedman);
8. Homeloss Payments (both discretionary payments (where previously approved by the
Developer or otherwise permitted in accordance with the Residential Relocation Strategy) and
statutory payments);
9. disturbance costs (both discretionary payments (where previously approved by the Developer or
otherwise permitted in accordance with the Residential Relocation Strategy) and statutory
payments);
10. rubbish clearance for decants (skips on Whitefield Estate);
11. Independent Residents' Advisor – to be appointed from the date the Agreement is signed;
12. costs associated with setting up a Residents group with the Existing Residents;
13. Residents' consultation costs;
14. resident training in understanding plans and the development process;
15. procurement costs for any of the above;
16. early demolition costs;
17. Council tax/water rates payable on vacant properties;
18. new cookers for old if residents are moving into new premises with no provision (if required);
19. occupational therapists assessments for residents to assess their needs;
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20. clearing out/stripping out of vacated properties;
21. Resident communications;
22. costs associated with an Access Licence and any Demolition Licence;
23. cost of serving Demolition Notices;
24. Security costs for void properties;
25. Service charge voids on vacant properties; and
26. Costs associated with any Infrastructure Agreement including the preparation or completion of
the same,
provided always that where the same item of cost shall be repayable by the Developer to the Council
pursuant to any Planning Agreement, Infrastructure Agreement and/or the CPO Indemnity Agreement
or appears within more than one of the above referred headings then that cost shall not be payable by
the Developer more than once pursuant to all such agreements or this Agreement.
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Schedule 12
Commercially Sensitive Information
The information contained in the following clauses and schedules is commercially sensitive and
potentially exempt from disclosure under the FOIA and/or EIR:
1. Clause 11 (Procurement)
2. Clause 14 Schedule 7 and Schedule 8 (Council's Costs).
3. Clause 16 (Public Sector Body Requirements).
4. Clause 18 (Good Faith).
5. Clause 25 (Indemnities).
6. Clause 34 (Confidentiality).
7. Schedule 1 (Staging Conditions).
8. Schedule 4 (Adjustment of Annual Rent Percentage).
9. Schedule 6 (Amendments to the Satisfactory Planning Permission).
10. Clause 39 and Schedule 10 (Contribution towards procurement costs/ground investigation).
11. Schedule 11 (Whitefield Estate Replacement Units).
12. Schedule 12 (Commercially Sensitive Information).
13. Schedule 14 (Suspension Provisions).
14. Schedule 15 (Joint Planning Documents).
15. Schedule 16 (Primary Sub-Station).
16. Schedule 17 (Outstanding Planning Requirements).
17. The Schedules of any land values in the CPO Indemnity Agreement.
18. The Original Financial Appraisal and/or any Revised Financial Appraisal.
19. The Financial Appraisals.
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Schedule 13
Part 1
Scope of Project Management Services
1. GENERAL
1.1 Attend Developer, design, project, construction and other relevant project meetings.
1.2 Establish a structure and procedure for project, design, construction and other meetings.
1.3 Convene and chair all principal project meetings.
1.4 Prepare and maintain an administration brief identifying roles and responsibilities of the
Developer, the professional team, the contractor and specialist sub-contractors and
suppliers.
1.5 Issue instructions, on behalf of the Developer, to the professional team and contractor in
accordance with the terms of their appointments/the building contract.
1.6 Agree project reporting procedures with all parties and implement agreed procedures.
1.7 Agree financial and progress reporting procedures with all parties and implement agreed
procedures.
1.8 Monitor the performance of the professional team and the contractor, report to the
Developer.
1.9 Prepare and maintain the programme for the design, procurement and construction of the
project. Monitor actual against planned progress. Report to the Developer.
1.10 Prepare regular reports commencing on quality, progress and costs. Advise the Developer of
any decisions required and obtain authorisation.
1.11 Check applications for payment from the professional team. Recommend payments to the
Developer.
1.12 Liaise with the professional team, arrange for the preparation and maintenance of cash flow
forecasts and other statements monitoring expenditure on the project.
1.13 Provide all updates and information reasonably requested by the staff of the Integrated
Programme Management Office and attend all meetings reasonably convened by the
Integrated Programme Management Office provided that reasonable notice is given.
2. PREPARATION
2.1 Liaise with the professional team and advise the Developer on any structural, building,
measured and other surveys and site investigations including condition reports, soil reports
etc. that may be required.
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2.2 Advise the client on demolition, strip-out, site investigation and enabling works contracts
required prior to the commencement of the building contract.
2.3 Liaise with the professional team and procure demolition, strip-out, site investigation and
enabling works contracts required before the commencement of the building contract.
2.4 Co-ordinate the preparation of alternative feasibility studies.
2.5 Advise the Developer on specialist services, including consultants, contractors,
sub-contractors and suppliers required in connection with the Project.
2.6 Advise the Developer of its obligations under the CDM Regulations.
2.7 Advise the Developer on the selection, the terms of appointment and fee structures for the
professional team. Conduct negotiations with, and prepare and complete the forms of
appointment for the professional team.
2.8 Advise the Developer of the professional team's professional indemnity insurance cover.
2.9 Liaise with the professional team and advise the Developer on statutory and other approvals
required, and fees due in respect of the Development. Recommend payments to the
Developer.
2.10 Visit the site and carry out initial inspections. Advise the Developer on areas of concern.
3. PRE-CONSTRUCTION
3.1 Implement and manage the preparation of a risk management strategy. Ensure the risk
register is maintained.
3.2 Advise on tendering and contractual procurement options. Prepare recommendations for the
Developer's approval.
3.3 Advise on suitable tenderers for the building contract. Prepare recommendations for the
Developer's approval.
3.4 Prepare a pre-construction report summarising the project design, cost, programme and risk
register.
3.5 Attend pre and post-tender interviews.
3.6 Monitor and report to the Developer on the procurement process.
3.7 Advise on the tenderer's design and construction programmes and method statements.
3.8 Prepare a tender report, negotiate with the tenderers and prepare recommendations for the
Developer's approval.
3.9 Together with the Developer and the professional team advise on methods of progressing
design and/or construction works prior to the execution of the Building Contract.
3.10 Obtain confirmation that required insurances are in place prior to work commencement on
site.
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3.11 Obtain contract drawings and specifications from the Developer and professional team.
Together with the Developer's legal advisers, prepare contract documents and deliver to the
Developer and the contractor for completion.
4. CONSTRUCTION
4.1 Agree approvals required from the professional team under the building contract.
4.2 Obtain authorisation from the Developer for additional costs where the Consultant's limit of
authority is exceeded.
4.3 Undertake regular site inspections. Obtain progress reports from the contractor and
professional team.
4.4 Agree all test certificates and statutory and non-statutory approvals required from the
professional team and the contractor. Prepare recommendations for the Developer's
approval.
4.5 Together with the other parties, prepare and maintain a handover plan identifying the roles
and responsibilities of the Developer, the professional team and the contractor.
5. COMPLETION
5.1 Oversee the rectification of any defects in line with the defects resolution plan.
5.2 Facilitate agreement to the final account or similar financial statement from the parties to the
building contract.
Part 2
Scope of Development Management Services
All or any of the following to the extent they shall not be ordinarily undertaken as performed by the
Developer's legal advisors and/or specialist consultants (including but not limited to highways
consultants, environmental engineers, architects and geotechnical engineers).
1. DEVELOPMENT FRAMEWORK
1.1 Advise the Developer on the organisation and structure necessary within the Development to
co-ordinate its own activities with others to give effect to the roles and functions of the
Developer in relation to design and construction matters.
1.2 Advise the Developer on the functions required of it in relation to its obligations as employer
under the building contract and the professional team appointments, and its obligations as
Developer. Advise the Developer of its other obligations in relation to the negotiation and
execution of Planning Agreements, adjoining owner matters, utility agreements, licences and
the like.
1.3 Set up effective communications with the Developer to advise and report, and also to seek
instructions where they are required.
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1.4 To act with executive authority on behalf of the Developer within prescribed limits, but on the
basis of taking responsibility for driving the project towards the achievement of the
investment and letting objectives of the Developer.
1.5 To be responsible for the day to day management and overseeing of the project, including all
the agreed detailed technical functions.
2. FINANCIAL
2.1 To assist in the negotiation of bank finance for the project, on terms acceptable to the
Developer.
2.2 To provide detailed information to any bank and its advisors as part of their due diligence
process.
2.3 To assist in the negotiation of any detailed legal provisions for the provision of bank finance.
2.4 To liaise with any bank's monitoring surveyor of any bank throughout the development
process.
2.5 To set up effective systems within the project team, for the application and prompt payment
of drawdowns against the banking facility.
2.6 To maintain detailed expenditure records and cashflows for the benefit of the Developer and
any bank.
2.7 To ensure, insofar as it is within their power to do so, that all development arrangements are
carried out so as not to prejudice the continued availability of finance throughout the project.
2.8 To advise insofar as the project manager's role allows, the Developer of the internal
organisation which it will require to meet the financial obligations it will incur as a
consequence of undertaking the development.
2.9 Recognise that the scheme's success will be reflected by tight control of cost, and to work
hard to build out the scheme on time and within budget.
3. INVESTMENT AND AGENCY REVIEW
3.1 Co-ordination of investment and agency advice to ensure the scheme as it evolves reflects
market expectations of tenants, investors and future purchasers.
3.2 Any continuing design review of the scheme.
3.3 Co-ordination of building management advice to ensure the Development is developed to the
way which the Developer requires.
3.4 Advise the Developer on the achievement of required designs and specifications.
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4. MANAGEMENT AND REPORTING
4.1 Monitoring of the building contractor's performance particularly in relation to maintaining a
detailed pre and post contract, programme identifying key milestone dates, dates for regular
meetings with the Developer, decisions to be taken, and ensure that this is kept up-to-date
for the Developer.
4.2 Maintain detailed cashflow showing development expenditure and ensure the same are
reported in detail to the Developer (and any bank, as required) on a regular basis.
4.3 Preparation and circulation of project administrative procedures to ensure there is clear
understanding across the project on roles and responsibilities of the team and its members.
4.4 Act as the focal point for all communications on the project between the Developer and any
other parties, the agents for letting and investment and the project team.
5. DEVELOPMENT
5.1 Lead negotiations with competent authorities, adjoining owners and others from whom
consent is needed to enable the development to take place.
5.2 Assist the Developer on the appointment of other consultants and set briefs and terms of
appointment for them and agree fees and payment terms.
5.3 Recommend all key technical arrangements to ensure that the development is carried out in
accordance with the Developer's objectives for the project.
5.4 Work with the project lawyers insofar as the development manager's role allows, to settle
terms and conditions of engagement for the design team and the principal terms of any
building contract.
6. MARKETING
6.1 Liaise with the Developer to advise on its marketing strategy.
6.2 To advise the Developer on the appointment of letting agents, and to appoint letting agents
as requested by the Developer on the Developer's behalf.
6.3 To work with the letting agents on any agreed letting strategy.
6.4 Liaise with the Developer and the letting agents on the budget for marketing of the
Development.
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Schedule 14
Suspension Provisions
1. DEFINED TERMS
In this Schedule 14, the following words and expression have the following meanings:
"LPA"
means the London Borough of Barnet, acting in its statutory capacity as Local
Planning Authority;
"Minimum Critical Infrastructure Works"
"Notional Interest"
"Prudent Investor"
"Prudent Regeneration Authority"
"Recommence"
"Section 73 Planning Agreement Suspension Provisions"
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"Southern Development"
"Station Delivery"
"Station Delivery Costs"
"Supervening Events"
"Suspension"
"Suspension Cost"
"Suspension Cost Cap"
"Suspension Cost Estimate"
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"Suspension Cost Indemnity"
"Suspension Deed"
"Suspension End Date"
"Suspension Interest Period"
"Suspension Longstop Date"
"Suspension Programme"
"Suspension Works"
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2. APPLICATION FOR CONSENT TO SUSPEND
3. INFORMATION
4. SUSPENSION COST
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5. THE SUSPENSION DEED
6. ACKNOWLEDGEMENT
7. DISPUTE RESOLUTION
Clause 13 of this Agreement shall apply to any dispute in relation to matters contained in this
Schedule including the terms of the Suspension Deed.
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Schedule 15
Joint Planning Documents
Part 1
Definitions used in this Schedule 15
In this Schedule 15 the following words and expressions shall have the following meanings:
"Commence"
has the meaning contained in the S73 Planning Agreement and
"Commencement" and "Commenced" shall have corresponding meanings;
"Costs"
means any costs (other than Excluded Costs);
"Costs Criteria"
means a fair and reasonable apportionment of cost (which may change from time
to time) having regard to:
(a) the proportionate benefit to the Northern Development or Southern
Development and/or the development of the site of the Southern
Development (or any part of it) pursuant to a New Southern Planning
Permission (as defined in the Co-operation Agreement) (as the case may
be); and
(b) (if applicable) any other factor it is reasonable to take into account;
"Deed of Modification"
means a deed modifying the S73 Planning Agreement in accordance with
section 106A of the Town and Country Planning Act 1990;
"Deed of Release"
means a deed between the Developer and the Council (with or without other
parties) which releases future obligations under this Schedule 15 in respect of a
Phase or the Northern Development or the Southern Development (as the case
may be);
"Excluded Cost"
means the following items of expenditure:
(a) any cost to the extent to which it was not reasonably or properly incurred or
does not directly relate to the Joint Planning Documents and/or any Joint
Planning Ongoing Costs;
(b) any internal costs or overheads;
(c) any expenditure or cost directly attributable to a breach or non-performance
of any obligation under this Schedule 15;
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(d) any cost that is recoverable from a Third Party save to the extent that the
relevant Party is unable to recover the same having used reasonable
endeavours to do so; and
(e) any costs incurred before 1 October 2013;
"Joint Planning Body"
means any body or forum established pursuant to a Joint Planning Document
Application including individuals appointed to discharge specific functions;
"Joint Planning Document Application"
means an application to a Relevant Body for approval of a Joint Planning
Document;
"Joint Planning Document Application Costs"
means any Costs incurred in connection with a Joint Planning Document
Application including the cost of preparation, consultation, negotiation and
submission of the same;
"Joint Planning Document Approval"
means any approval given by the Relevant Body pursuant to a Joint Planning
Document Application;
"Joint Planning Document Criteria"
means that the terms of a Joint Planning Document which, so far as reasonably
practicable:
(a) will not materially prejudice the Developer's or the Southern Developer's
ability to implement the S73 Planning Permission;
(b) will not materially delay the carrying out of the Northern Development or the
Southern Development pursuant to the S73 Planning Permission;
(c) do not undermine the ability of either the Developer or Southern Developer
to commence development pursuant to the S73 Planning Permission and/or
deliver the Northern Development or the Southern Development;
(d) do not exceed what is reasonably required to secure the approval of the
Relevant Body to the relevant Joint Planning Document;
(e) reflect a reasonable and fair apportionment of costs and/or liabilities as
between the Developer and the Southern Developer in connection with the
delivery of the Northern Development and the Southern Development; and
(f) do not delay or undermine the prospects of the Developer satisfying the
Staging Conditions;
"Joint Planning Ongoing Costs"
means any ongoing Costs in connection with the items listed in Table 2 including:
(a) the establishment of a Joint Planning Body and ongoing costs in connection
with the discharge of the functions for which such Body was established;
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(b) any joint and several liability contained in the S73 Planning Agreement or
any New Planning Agreement; and
(c) any ongoing costs associated with compliance with a Joint Planning
Document approved by the Relevant Body;
"Joint Planning Documents"
means:
(a) those documents listed in Table 1 and Table 2; and/or
(b) any other strategy, scheme, report, plan, study or detail to be submitted
pursuant to the S73 Planning Permission or S73 Planning Agreement,
and any revision, variation or replacement of the same which is applicable to both
the Northern Development and the Southern Development which is or are required
to be submitted and, if applicable, approved pursuant to the S73 Planning
Agreement and/or the S73 Planning Permission and/or any approval or consent
granted under the S73 Permission or the S73 Planning Agreement;
"LPA"
has the meaning contained in the S73 Agreement;
"Northern Development"
has the meaning contained in the S73 Planning Agreement;
"Phase"
has the meaning contained in the S73 Planning Agreement;
"Relevant Body"
means the LPA or such other body responsible for determining a Joint Planning
Document Application, e.g. the Transport Strategy Group;
"Southern Developer"
means the party or parties that will carry out the Southern Development (and/or
any party or parties that will carry out development of the site of the Southern
Development (or any part of that site) pursuant to a permission or permissions
other than the S73 Planning Permission);
"Southern Development"
means the Southern Development as defined in the S73 Planning Agreement and
where the context permits the Co-operation Agreement;
"Southern Development Unconditional Date"
means the date upon which the first contract in respect of the carrying out of the
Southern Development (as defined in the Co-operation Agreement) between the
Council and a Southern Developer becomes unconditional;
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"Table 1"
means the table of Joint Planning Documents set out in paragraph 1 of Part 3 of
this Schedule 15;
"Table 2"
means the table of Joint Planning Documents set out in paragraph 2 in Part 3 of
this Schedule 15;
Part 2
1. JOINT PLANNING DOCUMENT APPLICATIONS
1.1 The Developer shall in preparing and submitting any Joint Planning Documents ensure that
they are in accordance with the Joint Planning Document Criteria.
1.2 The Developer shall keep the Council fully informed as to its progress of any Joint Planning
Document Application and provide to the Council such information in connection with the
same as the Council shall reasonably require.
1.3 The Developer shall provide to the Council as soon as reasonably practicable drafts and any
amended drafts of the Joint Planning Documents (and supporting documentation), prepared
in connection with any Joint Planning Document Application.
1.4 The Council shall not raise objections to any element of a Joint Planning Document
Application with the Developer unless it shall not be in accordance with the Joint Planning
Document Criteria and only insofar and to the extent that such element relates to the
Southern Development. The Council shall not object or make representations to the
Relevant Body in respect of a Joint Planning Document Application made by the Developer.
1.5 The Council shall not make any Joint Planning Document Application without the approval of
the Developer prior to the Unconditional Date.
1.6 The Council may only make a Joint Planning Document Application if it is in accordance with
the Joint Planning Document Criteria and in which case the provisions of paragraphs 1.2
and 1.3 shall apply (mutatis mutandis).
2. VARIATION OF JOINT PLANNING DOCUMENT APPROVALS
2.1 The Council or the Developer (as the case may be) shall notify the other as soon as
reasonably practicable (and in any event within 10 Working Days of receipt) if, in its
reasonable opinion, it believes that any Joint Planning Document is not in accordance with
the Joint Planning Document Criteria, specifying the reasons for such opinion provided that
the Council shall only be entitled to issue any such notice or object to any element of a Joint
Planning Document insofar as and to the extent that it affects the Southern Development.
2.2 If a Joint Planning Document Approval is issued by the Relevant Body in accordance with a
Joint Planning Document Application which it is agreed or determined by the Independent
Person pursuant to clause 13 is not in accordance with the Joint Planning Document Criteria
then the Party that originally submitted the relevant Joint Planning Document Application
shall make an application (a "Variation Application") to the Relevant Body to vary or
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modify the Joint Planning Document Approval in such manner as will result in a varied or
modified Joint Planning Document Approval which is in accordance with the Joint Planning
Document Criteria provided that the Council may only propose variations to the extent that
they affect the Southern Development and not the Northern Development and a Variation
Application shall not be required if there is no reasonable prospect of it being approved by
the Relevant Body.
2.3 If it is agreed or determined by the Independent Person pursuant to clause 13 that the Joint
Planning Document is not in accordance with Joint Planning Document Criteria by reason of
an unfair apportionment of costs in respect of the Southern or Northern Developments under
the S73 Planning Permission or the S73 Planning Agreement (as the case may be), the
relevant Party shall not be required to make a Variation Application pursuant to
paragraph 2.2 if the Developer or the Council (as the case may be) shall have provided to
the other an indemnity or an alternative financial arrangement (approved by the other Party)
so as to put that other Party in the same position it would have been had the Joint Planning
Document been in accordance with the Joint Planning Document Criteria provided that if
given to the Council such indemnity shall be conditional upon the Commencement of the
Southern Development pursuant to the S73 Planning Permission.
2.4 Any costs incurred in connection with a Variation Application shall be met by the Party who
submitted the relevant Joint Planning Document Application which was not in accordance
with the Joint Planning Document Criteria and paragraph 4 shall apply (mutatis mutandis).
3. TRIGGERING TABLE 2 COSTS
3.1 The Council shall not trigger payment of any Joint Planning Ongoing Costs prior to the
Unconditional Date without the consent of the Developer.
3.2 Following the Unconditional Date, the Council may trigger the payment of Table 2, Costs and
the provisions of paragraph 4.4 shall apply in relation to the payment and apportionment of
the Joint Planning Ongoing costs.
4. JOINT PLANNING DOCUMENT COSTS AND JOINT PLANNING DOCUMENT ONGOINGCOSTS
4.1 The Developer shall be responsible for the Joint Planning Document Application Costs in
connection with the Joint Planning Documents referred to in Table 1 and Table 2.
4.2 Prior to the Southern Development Unconditional Date, the Developer shall pay the Joint
Planning Document Application Costs in respect of any Joint Planning Document Application
made by the Developer.
4.3 After the Southern Development Unconditional Date, the Council shall make a fair and
reasonable contribution towards the costs incurred by the Developer before the Southern
Development Unconditional Date in connection with the Joint Planning Document
Applications referred to in Table 1 with reference to the Costs Criteria.
4.4 After the Southern Development Unconditional Date, the Joint Planning Document
Application Costs shall be borne by the Developer and the Council by reference to the Costs
Criteria.
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4.5 The Joint Planning Ongoing Costs shall be borne by the Developer and/or Council as
follows:
4.5.1 prior to the Southern Development Unconditional Date, the Developer shall be
responsible for the Joint Planning Ongoing Costs; and
4.5.2 from the Southern Development Unconditional Date (or earlier if the Council has itself
triggered the payment of Table 2 Costs), the Developer and the Council shall bear
subsequent Joint Planning Ongoing Costs by reference to the Costs Criteria and the
Council shall pay to the Developer a proportion of the Joint Planning Ongoing Costs
previously incurred by the Developer by reference to the Costs Criteria.
5. PROCEDURE FOR THE PAYMENT OF COSTS
5.1 The Developer or the Council (as the case may be) shall promptly notify the other of any
Costs in respect of which it seeks reimbursement pursuant to this Schedule 15.
5.2 Any Costs to be reimbursed under this Schedule shall be paid by the relevant Party within
20 Working Days notification under paragraph 5.1 or (if later) 30 Working Days after the
date on which the obligation to make payment shall have arisen in accordance with
paragraph 4.
5.3 The Developer shall provide such details of any Costs which may become subject to
reimbursement once they have been incurred at the request of the Council from time to time
together with such additional evidence of the expenditure as the Council shall reasonably
require.
5.4 If there is a dispute as to the amount of any Costs to be paid in accordance with this
Schedule 15, either Party may refer the dispute to an Independent Person for determination
in accordance with clause 13 provided always that the paying Party shall pay an amount
equal to its estimate of the Costs (on a without prejudice basis) and, in the event, of an
overpayment or underpayment a balancing payment will be made within 20 Working Days of
the determination in accordance with clause 13 together with interest.
6. SOUTHERN DEVELOPER
If a Southern Developer (as defined in the Co-operation Agreement) is appointed then the
Council shall procure that either the Council or the Southern Developer shall comply with the
Council's obligations under this Schedule 15.
7. TERMINATION OF OBLIGATIONS UNDER THIS Schedule 15
7.1 The Developer and the Council shall, if reasonably required, by the other Party enter into a
Deed of Release:
7.1.1 on completion of the Northern Development or the Southern Development or a
declaration under the terms of the S73 Planning Agreement that the Northern
Development is closed in a manner that is accepted by the LPA to demonstrate that it is
no longer capable of being further implemented (as the case may be);
7.1.2 on completion of a Phase;
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7.1.3 it being agreed or determined by an Independent Person in accordance with clause 13
the Phase is incapable of being implemented; or
7.1.4 it otherwise being agreed being agreed or determined by an Independent Person in
accordance with clause 13 that there is no reasonable prospect of the relevant Party
incurring any further liability under this Schedule 15 to any other Party.
7.2 The form of the Deed of Release will be agreed by the Parties acting reasonably which will
not include any release in respect of any antecedent breaches in respect of which notice has
been served on the relevant Party prior to the receipt of any requests for such a release and
neither Party shall be required to enter into any form of release if at the date of the
application such Deed of Release there are any outstanding material and continuing
breaches of this agreement in respect of which notice has been served by the relevant Party
on the other in 10 Working Days of such request.
7.3 For the avoidance of doubt any number of applications may be made under this
paragraph 7.
7.4 The Parties shall act promptly in respect of any application for a Deed of Release confirming
its approval or otherwise to such application and in the event of a refusal the relevant Party
shall specify in detail the reasons why it is refusing to enter into the Deed of Release to the
other Party within 10 Working Days of a written application for a Deed of Release.
8. REVISED ENERGY STRATEGY
9. PLOT PHASING
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10. DISPUTES
Any dispute under this Schedule 15 may be referred by either Party to the Independent Person
to determination in accordance with clause 13.
11. CAR PARK APPLICATIONS
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11.8
Part 3
1. TABLE 1: JOINT PLANNING DOCUMENTS
DOCUMENT CONDITION/S73 PLANNING AGREEMENT
1. CCC Feasibility Study (if and to theextent that the Council agrees itshould include Phase 1 South as wellas Phase 1 North)
Condition 1.9 and paragraph 8.1 of Schedule 3 of S73Planning Agreement
2. Residential Relocation Strategy Condition 1.10
3. Consultative Access Forum Condition 1.18 and paragraph 13 of Schedule 2 andSchedule 13 of S73 Planning Agreement
4. Energy Panel Condition 1.19 and paragraph 14 of Schedule 2 of S73Planning Agreement
5. Area Wide Walking and CyclingStrategy
Condition 1.20 and Schedule 17 of S73 PlanningAgreement
6. Framework Servicing and DeliveryStrategy
Condition 1.21 and paragraph 13 of Schedule 3 of S73Planning Agreement
7. Consultation Strategy Condition 1.23
8. Vacuum Waste Collection SystemFeasibility Study
Condition 1.24
9. BXC Mobility Feasibility Study andStrategy
Condition 1.25
10. Inclusive Access Strategy andWayfinding Strategy
Condition 1.26
11. Clitterhouse Playing Fields MobilityScheme
Condition 2.2
12. Site Measurement Survey Condition 2.3
13. Framework Travel Plan Condition 2.6
14. A5 Corridor Study Condition 2.7
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DOCUMENT CONDITION/S73 PLANNING AGREEMENT
15. Changes To Phases Conditions 4.1 and 4.2
16. Changes To The ICP Conditions 4.3 and 4.4
17. Primary Development DeliveryProgramme For Works In Phase 1and Detailed Delivery (Non-PDP)Programme
Conditions 5.1, 5.2 and 5.4
18. Code of Construction Practice Condition 8.1
19. Demolition and Site WasteManagement Plan
Condition 9.1
20. Car Parking Management Strategy Condition 11.1
21. Site-wide Construction TransportManagement Plan
Condition 12.1
22. Phase 1 Remediation Zones or Sub-Zones of Site Specific Remediationstrategy for those Zones or Sub-Zones
Conditions 31.1, 31.2 and 31.3
RDF Feasibility Study Condition 35.3
23. RDF – Alternative RenewableSources
Conditions 35.4 and 35.6
24. CHP Details (if RDF feasible) Condition 35.5
25. Air Quality Monitoring Station Condition 30.6
26. Phases 1 and 2 Phase TransportReport(s)
Conditions 37.1, 37.2, 37.7 and 37.8
27. Cycle Hire Club Condition 39.1 and paragraph 15 of Schedule 3 of S73Planning Agreement
28. Car Club Condition 39.2 and paragraph 15 of Schedule 3 of S73Planning Agreement
29. Waste Handling Facility Condition 41.1
30. Scheme Of ArchaeologicalInvestigation
Condition 43.1
31. Water Framework DirectiveAssessment
Condition 44.1B
32. Transport Advisory Group (TAG) Paragraph 9 of Schedule 3 of the S73 PlanningAgreement
2. TABLE 2: JOINT PLANNING DOCUMENTS AND S73 PLANNING AGREEMENTOBLIGATIONS GIVING RISE TO JOINT PLANNING ONGOING COSTS
1. Consultative Access Forum –establish and pay costs
Definition of Consultative Access Forum, Condition 1.18,paragraph 13 of Schedule 2 and Schedule 13 of the S73Planning Agreement
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2. Energy Panel – establish andpay administrative costs (e.g.convening meetings andproviding information tomembers etc.)
Condition 1.19, Definition of Energy Panel, Schedule 11and paragraph 14 of Schedule 2 of the S73 PlanningAgreement.
3. Area Wide Walking andCycling
Condition 1.20 and Schedule 17 of the S73 PlanningAgreement
4. Framework Servicing andDelivery Strategy
Condition 1.21 and paragraph 13 of Schedule 3 of theS73 Planning Agreement.
5. Consultation Strategy Condition 1.23
6. Inclusive Access Strategy andthe Wayfinding Strategy
Condition 1.26
7. Clitterhouse Playing FieldsMobility Scheme
Condition 2.2
8. DSF Condition 2.4
9. Design and Access Statementand Design Guidelines
Condition 2.5
10. A5 Corridor Study Condition 2.7 and Schedule 17 Annex 7 of the S73Planning Agreement.
11. Code Of Construction Practice Conditions 8.2
12. Site-wide ConstructionTransport Management Planand Traffic ManagementOfficer
Condition 12.1.2, including (if and to the extent that thereis a joint appointment) the joint and several costs of theTraffic Management Officer in accordance withparagraph 10 and Paragraphs 13.2.1, 13.2.2, ofSchedule 3 to the S73 Planning Agreement.
13. Air Quality Monitoring Station Condition 30.6.
14. Cycling Hire Club – establishand fund for 5 years
Condition 39.1 and Paragraph 15 of Schedule 13 to theS73 Planning Agreement
15. Car Club – establish and fundfor 5 years
Condition 39.2 and Paragraph 15 of Schedule 3 to theS73 Planning Agreement
16. Monitoring Strategy Condition 37.8 and Schedules 3 and 17 of the S73Planning Agreement (excluding individual developerliabilities arising from the relevant Transport Reports).
17. Planning PerformanceAgreement and Costs of TfLand LPA
Paragraph 22 of Schedule 2 and Paragraph 2.4 ofSchedule 3 of the S73 Planning Agreement.
18. Professionals Appointed ToAdminister and EnsureCompliance With TheReconciliation Mechanism
Paragraph 3.2 of Schedule 2 of the S73 PlanningAgreement.
19. Framework Travel Plan Condition 2.6 and paragraph 16 of the S73 PlanningAgreement.
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20. Preparation of STNApplications that are not solelywithin the Northern / SouthernDevelopment
Paragraph 2.2.3 of Schedule 3 of the S73 PlanningAgreement.
21. TfL's costs (£50k indexedlinked per year up to £500kindex linked)
Paragraph 2.4 of Schedule 3 of the S73 PlanningAgreement.
22. Bus monitoring obligations Paragraphs 3.2.1 and 3.2.2 of Schedule 3 of the S73Planning Agreement.
23. Keeping the BXC TransportModel available and suitable.
Paragraph 7.1 of Schedule 3 of the S73 PlanningAgreement.
24. Phase 1 Transport Report andMatrix and Matrix andTransport Reports ScheduleCompliance for Phase 1
Paragraphs 7.2(a) and 7.3 of the S73 PlanningAgreement.
25. Provision of ConstructionConsolidation Centre(depending on outcome ofCCC Feasibility Study)
Paragraphs 8.1 and 8.4 of Schedule 3 of the S73Planning Agreement.
26. RDF Feasibility Study Paragraph 15 of Schedule 2 of the S73 PlanningAgreement.
27. Transport Advisory Group –establish and administrativecosts (convening meetings,meeting accommodation andall other reasonableadministrative expenses)
Definition of "TAG Constitution", Schedule 12 andparagraphs 9.1 and 9.6 of Schedule 3 of the S73Planning Agreement.
28. CCTV of constructionaccesses when access isused by both BXPs and CRL
Paragraph 10.4 of Schedule 3 of the S73 PlanningAgreement.
29. Appointment of Delivery andServicing Manager (if and tothe extent that it is a jointappointment).
Paragraphs 13.2.4, 13.3 and 13.4 of Schedule 3 of theS73 Planning Agreement.
30. Freight Quality Partnership Paragraph 14.2.2 of Schedule 3 of the S73 PlanningAgreement.
31. Payment of OverarchingEstate Management Body'scosts (body to haveco-ordinating function)
Paragraph 2.3 of Schedule 21 of the S73 PlanningAgreement.
32. Water Framework DirectiveAssessment
Condition 44.10.
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Schedule 16
Primary Sub-Station
1. In this Schedule 16 the following words and expressions shall have the following meanings:
"Primary Sub-Station Plot"
means the land shown in the indicative position edged green on Plan 15 with the
final location to be as agreed with the relevant statutory undertaker;
"Primary Sub-Station"
means the Primary Sub-Station compound and 33/11KV Switch House with a
maximum power capacity of 40MVA to be constructed on the Primary Sub-Station
Plot;
"Primary Sub-Station Cost"
"Anticipated Cost"
"Phase 1 South Plots"
means the 5 Phase 1 South Plots edged red on Plan 16.
2. Following acquisition by the Developer via CPO Confirmation or private negotiation, the freehold
site of the Primary Sub-Station will be vested in the Council whereupon the Council will grant a
Lease of the land required for the Primary Sub-Station to the utility provider, without payment of
a premium, at a peppercorn rent, on usual market terms (including all required cable easements
through the highways on the Council Land).
3. The Developer will procure a new Primary Sub-Station on the site of the Primary Sub-Station
Plot as set out at limb (c) of Appendix J of the Critical Infrastructure definition at Annexure 9
with regard to which of the following shall apply:
3.1 The Primary Sub-Station will have a power capacity of 40MVA and the Developer agrees
that it will take a maximum capacity of 15MVA from the Primary Sub-Station and will request
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the utility provider to reserve the remaining 25MVA of capacity for the Southern
Development.
3.2 The Developer is to be responsible for providing the first 22 MVA of this capacity on the
following basis:
3.2.1 15 MVA is to be the responsibility of the Developer at its own expense (for the avoidance
of doubt the power requirement for Plot 113 will come from this supply); and
3.2.2 7 MVA is to be provided by the Developer at its expense to the Council subject to the
overall cost of provision of the 7 MVA not exceeding the Anticipated Cost. If the cost of
providing such 7 MVA exceeds the Anticipated Cost the Council will be responsible for
payment of the excess costs above the Anticipated Cost within two years of the date
10 Working Days after Practical Completion of the Primary Sub-Station (the "Calculation
Date") together with notional interest at the rate at which the Developer is from time to
time able to borrow in the open market for development finance for the period from the
Calculation Date until payment.
3.3 In relation to the remaining 18 MVA this is to be allocated for the Southern Development and
provided at the cost of the Council or Southern Developer. Subject to the Developer being
placed in funds in advance by the Council, the Developer will agree to reserve such 18 MVA
of capacity for the Council and/or the Southern Developer.
3.4 Where there is an opportunity to tender the works this will be done on a best price and best
value basis in agreement with the Council.
4. All technical specifications are subject to final verification by UK Power Networks (or any
successor body).
5. All power reservation is subject to the final agreement of the statutory undertaker, UK Power
Networks.
6.1 The Developer will be responsible for paying the direct cost of all the high voltage cabling
required for each Phase 1 South Plot from the Primary Sub-Station through the conduits
installed on the roads identified in the Critical Infrastructure Schedule attached at
Annexure 9 as package 8, Table 1.
6.2 The direct cost referred to in paragraph 6.1 will comprise the proper and reasonable cost
incurred to install and physically connect all such cabling. For the avoidance of doubt this
shall not include the cost of any secondary sub-station.
6.3 Either the Council or the Southern Developer can elect by written notice to the Developer
prior to the installation of the cabling to seek a payment of
in lieu of the Developer's
commitment under paragraph 6.1 and 6.2.
6.4 The Developer shall make all payments properly due in respect of cabling costs within
20 Working Days of receipt of a value added tax invoice in respect of such costs.
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Schedule 17
Outstanding Planning Requirements
1. DEFINITIONS
In this Schedule 17 the following words and expressions shall have the following meaning:
"Additional Planning Applications"
means the following applications, proposals, requests for approval and all
proposals for necessary or consequential amendments to the S73 Planning
Agreement and/or Satisfactory Planning Permission which have been or are to be
submitted to the LPA by the Developer:
(a) changes to Schedule 28 of the S73 Planning Agreement dated 22 July 2014
issued in draft by Nabarro LLP on 28 January 2016;
(b) reserved matters application 15/06571/RMA (Bridge Structure B1 and
associated highways);
(c) reserved matters application 15/06572/RMA (Tilling Road West/Brent
Terrace North Junction);
(d) reserved matters application 15/06573/RMA (River Bridge 1 and River
Diversion);
(e) reserved matters application 15/06574/RMA (Central Brent Riverside Park);
(f) application 15/06876/CON (submission under Conditions 2.4 and 2.5
relating to Bridge Structure B1 (removal of bus lanes) and amendment of
plots);
(g) application 15/07836/EIA (planning application relating to A406 and 111
Highfield Avenue);
(h) application 15/07898/NMA (relating to Condition 1.29 A41/A406 Junction
works);
(i) application 15/07802/CON (submission under Conditions 2.4 and 2.5
relating to Bridge Structure B6);
(j) application 15/07955/CON (submission under Condition 1.20 to update pre-
reserved matters application documentation);
(k) application 14/07402/CON (submission under Condition 2.7 to update A5
Corridor Study);
(l) application 15/07954/CON (submission under Condition 2.8 in respect of
Pedestrian and Cycle Strategy);
(m) application 15/07953/CON (submission under Condition 37.2 in respect of
Phase Transport Report);
(n) application 14/07897/CON (submission under Condition 27.1 in respect of
landscaping);
(o) application 16/0988/NMA (relating to non-material amendments to Condition
13.1 and omission of Temporary Bus Station, Condition 1.29 in respect of
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M1/A406/A5 Junction, and Conditions 13.1 and 21.1.1 in respect of Bridge
Structure B6);
(p) letter requesting approval pursuant to Condition 1.30 F/04687/13 to amend
definitions relating to Critical Infrastructure Pre-Phase 1AN and M1/A406/A5
Junction, Bridge Structure B6 (M1 Junction 1 Pedestrian and Cycle Bridge),
Temporary Works and A41/A406 Junction Improvements;
(q) letter pursuant to Condition 1 of reserved matters approval 15/03312/RMA
requesting minor amendments to the Living Bridge letter pursuant to
Condition 1 of reserved matters approval 15/03312/RMA requesting minor
amendments to the vehicular River Brent Bridge;
(r) application to be submitted for non-material amendments to Conditions 36.3
and 36.8 to allow for a minimum of 3% additional Class A1 – A5 and a
minimum of 3% additional Class D2 floorspace when compared to that
approved by the S73 Planning Permission and any subsequent changes to
be made to the DSF, Design & Access Statement and Design Guidelines (as
defined in the S73 Planning Permission) to be made through Conditions 2.4
and/or 2.5;
(s) an application for a certificate of lawfulness in respect of the digging of a
trench as envisaged by approval 15/06197/NMA to be submitted by the
Developer following completion of the digging of the trench referred to in that
approval; and
(t) amendment of the Planning Agreement dated 22 July 2014 to incorporate
fixed sums for all commuted payments for adoptable infrastructure (e.g.
bridges, river, roads, paths, cycleways etc. including amendments to
Schedule 21 of the S73 Planning Agreement (Key Principles For Estate
Management Framework) and Estate Management Framework) and
agreement by all statutory authorities that such sums are fixed and will not
be amended or revisited at the S278 Agreement stage;
"Additional Planning Approvals"
means approvals issued by the LPA and the completion of all necessary
amendments to the S73 Planning Agreement and/or Satisfactory Planning
Permission in respect of all of the Additional Planning Applications;
"Additional Planning Approvals Challenge Period"
means the date in respect of any Additional Planning Approval required to satisfy
the condition contained in paragraph 5 of this Schedule 17 which is:
(a) seven weeks after the date on which such Additional Planning Approval was
granted if such Approval is not granted by the Secretary of State; or
(b) seven weeks after the date on which such Additional Planning Approval is
granted by the Secretary of State;
"Appeal"
means an appeal under sections 78 and 79 of the Town and Country Planning
Act 1990 against a Refusal;
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"Call-In"
means consultation in respect of any Additional Planning Application with the
Secretary of State pursuant to the Town and Country Planning (Consultation)
(England) Regulations 2009 or reference of any Additional Planning Application to
the Secretary of State under section 77 of the Act and the determination of the S73
Application by the Secretary of State under section 77 of the Act;
"Finally Disposed of"
means a final exhaustion disposal or discontinuance of the Planning Proceedings;
"Outstanding Planning Requirements"
means the requirements to be satisfied pursuant to paragraph 5 of this
Schedule 17;
"Planning Condition Proceedings"
means Planning Proceedings lodged by the Developer;
"Planning Proceedings"
means all or any of the following proceedings (including any Third Party Planning
Proceedings):
(a) an application for or to apply for judicial review challenging the grant of any
Additional Planning Approvals and/or any such proceedings made following
a resolution to grant any Additional Planning Approvals; and
(b) an application made under section 288 of the Town and Planning Act 1990
following and challenging a Refusal or the grant or refusal of any Additional
Planning Approvals by the Secretary of State,
(c) any appeal to a higher court made against a judgment given in the lower
court in respect of (bb) or (cc) above;
"Refusal"
means a Call-In of any Additional Planning Application or either an express or
deemed refusal of any Additional Planning Application in circumstances giving rise
to a right of Appeal under section 78 of the Town and Country Planning Act 1990
or any such approval which the Parties agree or it is otherwise determined in
accordance with the provisions of paragraph 6 of this Schedule 17 as not being
reasonably satisfactory and the expression "Refusal" shall be construed
accordingly;
"Secretary of State"
means the Secretary of State and includes an inspector appointed by the Secretary
of State to determine any Appeal against a Refusal or following a Call-In of any
application for any Additional Planning Approval;
"Third Party Planning Proceedings"
means Planning Proceedings lodged by a Third Party.
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2. WAIVER
.
3. TIMING OF SATISFACTION OF OUTSTANDING PLANNING REQUIREMENTS
3.1 The Developer shall use reasonable endeavours to obtain the Additional Planning Approvals
necessary to satisfy the Outstanding Planning Requirements.
3.2 The Council hereby confirms its agreement to the Developer making the Additional Planning
Applications.
3.3 The Developer shall use reasonable endeavours to obtain all the Additional Planning
Approvals necessary to satisfy the Outstanding Planning Requirements as soon as
reasonably practicable.
3.4 The Developer must submit the Approvals Application in relation to the Council Elements in
such form as shall have been approved by the Council and shall not amend or re-submit
such Application without the approval of the Council.
3.5 The Developer may amend and re-submit any Additional Planning Application where in its
reasonable opinion it is reasonable to do so in order to obtain the relevant Additional
Planning Approvals in satisfactory form according to this Schedule 17.
4. CO-OPERATION OF THE COUNCIL
The Council shall at the request of the Developer co-operate with the Developer and use
reasonable endeavours to assist the Developer in satisfying the Outstanding Planning
Requirements according to this Schedule 17.
5. SATISFACTION OF THE OUTSTANDING PLANNING REQUIREMENTS
The Outstanding Planning Requirements are satisfied by each of the following requirements
occurring:
5.1 the Developer shall have obtained all of the Additional Planning Approvals;
5.2 the Developer confirming to the Council that the terms of the Additional Planning Approvals
are reasonably satisfactory to it; and
5.3 expiry of the Additional Planning Approvals Challenge Period without Planning Proceedings
having been begun or, if Planning Proceedings are begun during the Additional Planning
Approvals Challenge Period the conclusion of those proceedings are such that they are
Finally Disposed of leaving in place the Additional Planning Approvals in terms that are
reasonable satisfactory to the Developer.
6. ADDITIONAL PLANNING APPROVALS – SATISFACTORY TO THE DEVELOPER
6.1 The Developer shall within 30 Working Days from receipt or completion of an Additional
Planning Approval and completion of any associated Planning Agreement confirm in writing
H2696/00048/85713914 v.3 PC/JPM/04 July 2016207
to the Council whether in its reasonable opinion it considers that such Additional Planning
Approval or Planning Agreement are in its reasonable opinion satisfactory (such confirmation
not to be unreasonably withheld or delayed) provided that (and without prejudice to the
generality of the foregoing) the Developer's confirmation may be refused in circumstances
where the Additional Planning Approval and/or Planning Agreement would unduly increase
the cost of construction in a way which would undermine the Developer's ability to satisfy
or unduly delay the commencement of any part of the Development by
comparison with the Programme or any anticipated Programme therefor.
6.2 In the event that the Developer shall not have so confirmed within 30 Working Days then the
Developer shall be deemed not to have accepted that such Additional Planning Approval or
Planning Agreement would in its reasonable opinion be satisfactory (unless the Developer
subsequently notifies the Council that such Additional Planning Approval or Planning
Agreement would in its reasonable opinion be satisfactory).
6.3 If the Council shall fail within 20 Working Days from notice of an unsatisfactory Additional
Planning Approval or Planning Agreement by the Developer to the Council in accordance
with paragraph 6.1 or any deemed notice pursuant to paragraph 6.2 to serve notice on the
Developer that it disputes that the Additional Planning Approval or Planning Agreement
would be unsatisfactory in the Developer's reasonable opinion then the Council shall be
deemed to have disputed the position in which case then the Council or the Developer may
at any time thereafter refer the question of whether or not such Additional Planning Approval
or Planning Agreement would in the reasonable opinion of a prudent developer be treated as
satisfactory to an Independent Person for determination in accordance with clause 13
(unless the Council prior to the matter being referred to an Independent Person agrees that
such Additional Planning Approval or Planning Agreement would in the reasonable opinion
of a prudent developer be unsatisfactory).
6.4 If it is determined by an Independent Person that such Additional Planning Approval or
Planning Agreement would in the reasonable opinion of a prudent developer be satisfactory
then the Additional Planning Approval or Planning Agreement shall be deemed to be
satisfactory.
6.5 If it shall be determined by an Independent Person that such Additional Planning Approval or
Planning Agreement would not in the reasonable opinion of the Developer be satisfactory
then the Additional Planning Approval or Planning Agreement shall be deemed to be not
satisfactory.
7. APPEAL
7.1 Subject to the remaining provisions of this paragraph 7, if an Additional Planning Application
is the subject of a Refusal then the Developer shall have the right to lodge an Appeal with
the Secretary of State and if the Developer does lodge an Appeal then the Developer will
pursue such Appeal with all reasonable speed and diligence unless Counsel advises that
there is a less than 50 per cent chance of such Appeal being successful in obtaining an
Approval which is going to be on terms satisfactory to the Developer.
7.2 If the Developer shall lodge an Appeal then the Developer shall keep the Council informed of
the conduct and progress of the Appeal and provide the Council (in its capacity as
landowner) within 10 Working Days of any request for any information reasonably requested.
H2696/00048/85713914 v.3 PC/JPM/04 July 2016208
8. PLANNING PROCEEDINGS
8.1 If an Additional Planning Approval is granted but becomes the subject of Third Party
Planning Proceedings the Developer shall (unless advised by Counsel that there is a less
than 50 per cent chance that the Additional Planning Approval on terms reasonably
satisfactory to the Developer would result) assist the LPA in defence of such Planning
Proceedings with all reasonable speed and diligence unless Counsel subsequently advised
that there is a less than 50 per cent chance of success and the Council shall use reasonable
endeavours to defend such Planning Proceedings with all reasonable speed and diligence.
8.2 If an Additional Planning Application is the subject of a Refusal or a refusal on an Appeal or
is granted subject to any condition then the Developer shall have the right to institute
Planning Condition Proceedings and if it elects to do so it shall pursue the same with all
reasonable speed and diligence unless the Developer is subsequently advised by Counsel
that there is a less than 50 per cent chance of obtaining the relevant Additional Planning
Approval on terms reasonably satisfactory to the Developer.
8.3 If the Developer shall institute any Planning Condition Proceedings then the Developer shall
keep the Council (in its capacity as landowner) fully informed in connection with the progress
of such Proceedings.
9. NOTIFICATION
The Developer shall notify the Council that the Outstanding Planning Requirements have been
satisfied within 20 Working Days of the Developer believing satisfaction has been achieved.
10. INFORMATION
10.1 The Developer shall keep the Council informed in respect of all matters relating to the
satisfaction of the Outstanding Planning Requirements.
10.2 The Developer shall supply to the Council on request any information that the Council shall
reasonably require relating to the satisfaction of the Outstanding Planning Requirements.
11. DISPUTES
Any dispute regarding any matter relating to this Schedule 17 may be referred by either Party
to the Independent Person for determination in accordance with clause 13.
12. COUNSEL
Where in this Schedule 17 matters are to be referred to Counsel for expert determination the
provisions of paragraph 13 of Part 1 of Schedule 1 shall apply.
H2696/00048/85713914 v.3 PC/JPM/04 July 2016209
THE COMMON SEAL OF THE )LONDON BOROUGH OF BARNET )was hereunto affixed in the presence )of the Officers named below who are )duly authorised to attest this )document by Article 11.5 of the )Constitution Adopted by resolution of )Full Council on 24 March 2014 )
……………………………..Authorised Signatory/Head of Governance
…………………………….Authorised Signatory/Assurance Director
Executed as a deed by JTC Fund )Solutions (Jersey) Trustees Limited )as trustee of The Standard )Life Investments UK Shopping )Centre Trust in the presence of: )
Authorised Signatory
Authorised Signatory
Executed as a deed by Kleinwort )Benson (Jersey) Trustees Limited )as nominee for Kleinwort Benson )(Channel Islands) Corporate Services )Limited as trustee of The Standard )Life Investments UK Shopping Centre)Trust in the presence of: )
Authorised Signatory
Authorised Signatory
Executed as a deed by Hammerson )(Brent Cross) Limited in the )presence of: )
Director
Director/Secretary
H2696/00048/85713914 v.3 PC/JPM/04 July 2016210
H2696/00048/85713914 v.3 PC/JPM/04 July 2016211
Annexure 1
Plans
[Note – See Annexure to PDA dated 3 March 2015]
H2696/00048/85713914 v.3 PC/JPM/04 July 2016212
Annexure 2
Novation Agreement
[Note – See Annexure to PDA dated 3 March 2015]
H2696/00048/85713914 v.3 PC/JPM/04 July 2016213
Annexure 3
First Head Lease Variation
[Note – See Annexure to PDA dated 3 March 2015]
H2696/00048/85713914 v.3 PC/JPM/04 July 2016214
Annexure 4
Second Head Lease Variation
[Note – See Annexure to PDA dated 3 March 2015]
H2696/00048/85713914 v.3 PC/JPM/04 July 2016215
Annexure 5
Opinion Letter
[Note – See Annexure to PDA dated 3 March 2015]
H2696/00048/85713914 v.3 PC/JPM/04 July 2016216
Annexure 6
Disposal Land Transfer
[Note – See Annexure to PDA dated 3 March 2015]
H2696/00048/85713914 v.3 PC/JPM/04 July 2016217
Annexure 7
Deed of Pre-emption
[Note – See Annexure to PDA dated 3 March 2015]
H2696/00048/85713914 v.3 PC/JPM/04 July 2016218
Annexure 8
CPO Indemnity Agreement
[Note – See Annexure to PDA dated 3 March 2015]
H2696/00048/85713914 v.3 PC/JPM/04 July 2016219
Annexure 9
Critical Infrastructure
[Note – See Annexure to PDA dated 3 March 2015]
H2696/00048/85713914 v.3 PC/JPM/04 July 2016220
Annexure 10
[Not Used]
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Annexure 11
New Deed of Restrictive Covenant
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Annexure 12
Demolition Licence
[Note – See Annexure to PDA dated 3 March 2015]
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Annexure 13
TIF Grant Agreement
H2696/00048/85713914 v.3 PC/JPM/04 July 2016224
Annexure 14
Cost Estimate
H2696/00048/85713914 v.3 PC/JPM/04 July 2016225
Annexure 15
Southern Critical Infrastructure Plans
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Annexure 16
Deed of Release
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Annexure 17
Southern Development Plan
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Annexure 18
Confidentiality Agreement
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Annexure 19
Current draft Programme