Posted by: John Brace | 15th February 2018

What’s in Wirral Council’s 96 page Hoylake Golf Resort contract?

What’s in Wirral Council’s 96 page Hoylake Golf Resort contract?

                                       

Continuing from yesterday’s post about the cancelled hearing, I’d better once again state I was the person who made the information request.

Here however is a brief chronology of what has happened so far.

12th December 2016 – EIR request made to Wirral Metropolitan Borough Council by myself for 122 pages of information.

10th January 2017 – Wirral Metropolitan Borough Council refuse request giving Regulation 12(5)(b) and 12(5)(e) as reasons.

2nd Feburary 2017 – Reconsideration of Wirral Council’s decision of the 10th January 2017 requested by myself.

3rd March 2017 – Wirral Metropolitan Borough Council refuse request giving Regulation 12(5)(b) as applying to pages 15-42 and Regulation 12(5)(e) as applying to pages 43-136.

15th March 2017 – I appeal this decision to the regulator ICO (Information Commissioner’s Office).

7th August 2017 – ICO issue decision notice FER0672223 requiring disclosure of pages 43-136 (but not pages 15-42)

31st August 2017 – Wirral Council appeal ICO decision notice FER0672223 to the First-Tier Tribunal (Information Rights) which becomes case EA/2017/0191.

14th September 2017 – Wirral Council change their mind about the application of Regulation 12(5)(e) and disclose some of the information. 74 sections are still redacted.

18th September 2017 – Wirral Council disclose a further A4 page accidentally left out of the disclosure on the 14th September 2017.

9th February 2018 – Wirral Council disclose further sections by post to the person requesting the information.

12th February 2018 – First-tier Tribunal (Information Rights) cancels two-day hearing listed for 13th and 14th February.

14th February 2018 – 15 minute telephone conference between parties and the First-tier Tribunal (Information Rights).

So below is a combination of what the first 28 pages of what was disclosed to me on the 14th September 2017, 18th September 2017 and 9th February 2018.

By way of background it is the contract between Wirral Metropolitan Borough Council and the developer Nicklaus Joint Venture Group Limited.

Unfortunately as Wirral Council has resized the text multiple times to make it smaller than it originally was (presumably in part so it doesn’t appear over a hole punch in a hearing bundle), then printed it at a very low resolution, some parts are now extremely unreadable. Below each image of each page below I have tried as best I can to provide a copy of the text.

The parts of the text that were revealed to me on Friday 9th February 2018 have got a grey background.

The blacked out annotations in the right margins of each page weren’t on the original, refer to the reason or reasons why redacted parts were redacted. For the reasons check this document and for page 19 this document.

What has been supplied has also had its original page numbers removed and confidentiality markings too.

Page numbers have been added to the footer (pages 256 – 283) as these are the page numbers in the hearing bundle.

There are a further 67 pages after these that form part of the contract that I haven’t got around to publishing in an easy read format yet. This is partly because some of the text has to be manually typed (using a magnifying glass on the text) due to a combination of artifacts and low resolution. However you can download a zipped file of all pages here (bear in mind this is a large file and may take some time to download).

If it’s of use to you, please leave a comment. Pages below may make more sense once read with the rest of the contract.



Hoylake Golf Resort contract cover page

Hoylake Golf Resort contract cover page

DATED               2016 Draft (19) 17.08.2016






(1) WIRRAL BOROUGH COUNCIL


(2) NICKLAUS JOINT VENTURE GROUP LIMITED



DEVELOPMENT AGREEMENT
relating to
Hoylake International Golf Resort, Wirral







(PinentMasons logo)
PinsentMasons

256

Hoylake Golf Resort contract index page 1 of 2

Hoylake Golf Resort contract index page 1 of 2


































CONTENTS
ClausePage
1INTERPRETATION1
2OBJECTIVES24
3AGREEMENT FOR SALE SUBJECT TO CONDITIONS24
4SITE ASSEMBLY CONDITION25
5PYLON WORKS CONDITION27
6FUNDING AND VIABILITY CONDITION28
7PLANNING CONDITION30
8HIGHWAYS CONDITION34
9FOOTPATH ORDER CONDITION35
10R&A CONDITION38
11ENVIRONMENTAL REPORT CONDITION38
12ENVIRONMENTAL INSURANCE CONDITION40
13OVERAGE AGREEMENT41
14R&A AGREEMENT41
15COMPLETION OF THE SALE OF THE COUNCIL’S LAND AND THE NEW MUNICIPAL GOLF COURSE LAND AND THE RESIDENTIAL LAND42
16PREMIUM AND COUNCIL’S COSTS42
17AFTER UNCONDITIONAL DATE43
18START ON SITE AND GRANT OF PHASE BUILDING LICENCES44
19STATUTORY AGREEMENTS50
20INSURANCE50
21THE WORKS51
22ACCESS, INSPECTIONS, SITE MEETINGS AND INFORMATION55
23DEVELOPMENT PROGRAMME56
24CHANGES TO THE WORKS58
25CHANGES TO WORKS58
26PRACTICAL COMPLETION OF THE WORKS58
27DEFECTS LIABILITY PERIOD59
28WORKS UNDER STATUTORY AGREEMENTS TO BE ADOPTED60

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Hoylake Golf Resort contract index page 2 of 2

Hoylake Golf Resort contract index page 2 of 2































29CDM REGULATIONS60
30COPYRIGHT AND LICENCE TO USE DOCUMENTS61
31NOTICES62
32VALUE ADDED TAX63
33PROJECT DELIVERY GROUP64
34HIGHWAYS WORKS FUNDING65
35INTEREST AND PAYMENTS65
36DISPUTES65
37ENVIRONMENTAL MATTERS68
38DEFAULT AND TERMINATION69
39ALIENATION70
40FREEDOM OF INFORMATION71
41CONFIDENTIALITY72
42MISCELLANEOUS73
SCHEDULE 1 – THE TITLE DOCUMENTS76
SCHEDULE 2 – ONEROUS CONDITIONS77
PART 1 – DEVELOPER’S ONEROUS CONDITIONS77
PART 2 – COUNCIL’S ONEROUS CONDITIONS77
SCHEDULE 3 – BUILDING CONDITIONS79
PART 1 – BUILDING LICENCE79
PART 2 – THE CONDITIONS79
SCHEDULE 4 – SALE COMPLETION MECHANICS81
PART 1 – COUNCIL’S LAND81
PART 2 – NEW MUNICIPAL GOLF COURSE LAND83
SCHEDULE 5 – REVIEW PROCEDURE85
APPENDIX 1 – PLANS85
APPENDIX 2 – DEVELOPER’S BID90
APPENDIX 3 – MASTERPLAN91
APPENDIX 4 – DEVELOPMENT PROGRAMME92

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Hoylake Golf Resort contract Page 1 of 93

THIS AGREEMENT is made on              2016

BETWEEN:-

(1) WIRRAL BOROUGH COUNCIL of Town Hall, Brighton Street, Wallasey, Wirral, CH44 8EO (the “Council”); and

(2) NICKLAUS JOINT VENTURE GROUP LIMITED (Company No. 09210487) whose registered office is at 21 Fronhaul, Llanelli, Dyfed SA14 8LF (the “Developer”).

BACKGROUND:-

The Council and the Developer have entered into this Agreement to procure the comprehensive redevelopment and construction of the Hoylake International Golf Resort as described in this Agreement.

IT IS AGREED:-

1. INTERPRETATION

1.1In this Agreement:-
1990 Actmeans the Town and Country Planning Act 1990
Actual Completion Datemeans the date upon which Completion of the sale of the
Council’s Land and the sale of the New Municipal Golf
Course Land and the sale of a Residential Phase(s) (as
applicable) actually takes place save where such
Completion takes place after 2.00 pm then the “Actual
Completion Date” will be the next Working Day after the
date on which Completion took place
AgreementXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
Appealmeans an appeal to the Secretary of State under
section 73 or 78 (as the case may be) of the 1990 Act
against:-
(a) a Planning Refusal or
(b) a Call-in
Approved Documentsmeans the Developer’s Bid and such documents
contained in it as are developed and approved in
accordance with this Agreement including those
approved under the review procedure pursuant to Clause 16
Approved Drawingsmeans the drawings, elevations, sections, specifications,
plans and other documents for the Works as may from
time to time be approved by the Council under this
Agreement including those approved under the Review
Procedure pursuant to Clause 17
Approved Fundermeans such Funder or Funders that is approved by the
Council as part of a Funding Strategy pursuant to
Clause 6

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Hoylake Golf Resort contract Page 2 of 93

Architectmeans Nicklaus Design, LLC of 17780 US Hwy 1Ste 500
North Palm Beach, Florida 33408 United States and Powell Dobson Architects of Building 1 The Eastern Business Park, Wern Faw Lane, St Mellows Cardiff CF3 5EA United Kingdom or such other reputable and suitably qualified person as the Developer and/or a Building Contractor may appoint with the approval of the Council (such approval not to be unreasonably withheld) as to the identity and terms of appointment to act as Architect in relation to the Works
Assumption of Liability Noticehas the meaning given in the CIL Regulations
Build Completion Datemeans the date stated as such in the Development Programme in relation to the Works or a Phase or such other date as is established under Clause 23
Building Contractmeans the contract or contracts to be made between the Developer and the Building Contractor(s) for the carrying out of the Works in Accordance with Clause 18.4
Building Contractormeans such reputable and suitably qualified person(s) as the Developer may appoint to act as building contractor in relation to the Works in accordance with Clause 18.4
Building Long Stop Datemeans in relation to each Phase the date(s) specified in the Funding Strategy for Practical Completion of the Works calculated from the relevant Phase Commencement Date
Call-inmeans the reference of the Planning Application to the Secretary of State under section 77 of the 1990 Act
CDM Health and Safety Filemeans the health and safety file(s) required to be
prepared and maintained pursuant to the CDM Regulations
CDM Construction Phase Planmeans in respect of each Phase the health and safety plan(s) required to be prepared and maintained pursuant to the CDM Regulations
CDM Regulationsmeans the Construction (Design and Management) Regulations 2015 and/or any modification or replacement thereof for the time being in force
Championship Golf Coursemeans the signature Jack Nicklaus intemational 18-hole championship golf course which is to be constructed as part of the Works more particularly described in the Specification and which is to be an 18 hole par 72, 7,300 yard golf course
Change of Controlmeans a person who Controls any body corporate ceases to do so or another person acquires Control of it
Chargeable Developmenthas the meaning set out in Regulation 9 of the CIL Regulations
Charging Schedulehas the meaning given in the CIL Regulations

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Hoylake Golf Resort contract Page 3 of 93

CIL Regulationsmeans The Community Infrastructure Levy Regulations 2010 as amended by The Community Infrastructure Levy (Amendment) Regulations 2011 and as further amended from time to time
Club Housemeans the club house to be constructed as part of the Works as more particularly described in the Developer’s Bid which is to be a minimum of a 24,000 square feet golf club house which is to be located so as to be overlooking the finishing holes of the Championship Golf Course and which is to include:-

(a) a bar
(b) a restaurant
(c) meeting rooms
(d) a 40 station fitness gym
(e) a spa facility with 6-8 treatment rooms
(f) a steam room and sauna
(g) a Jacuzzi pool and
(h) a club pro shop

Collecting Authorityhas the meaning given in the CIL Regulations
Community Infrastructure Levyhas the meaning given in the Planning Act 2008 (and as further defined in the CIL Regulations) and shall also
include any sums, expenses, costs, surcharges, debts (including amounts payable by reason of the application of Chapter 3 of Part 9 of the CIL Regulations), interest or other payment arising out of or in connection with the Community Infrastructure Levy and payable in respect of the Site but which for the avoidance of doubt shall exclude any payments or obligations made pursuant to s.106 of the 1990 Act, and shall hereinafter be referred to as “CIL”
Competent Authoritymeans any court, tribunal, national or local government, agency, authority or body having judicial, regulatory authority including any matters concerning the Environment and the law relating to it
Completionmeans:-
(a) completion of the sale of the Council’s Land to the Developer in accordance with the terms and conditions of this Agreement and
(b) the sale of the New Muncipal Golf Course Land to the Council in accordance with the terms and conditions of this Agreement and
(c) the sale of the Residential Phases (or any one of them) to a Housebuilder in accordance with the terms and conditions of this Agreement

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Hoylake Golf Resort contract Page 4 of 93


Completion Datemeans in respect of the sale of the Council’s Land and the sale of the New Municipal Golf Course Land 20 Working Days after the date of the last Practical Completion Statement in respect of the Works subject to Clause 15.2
Condition Datemeans the date which is 72 months after the date of this Agreement
Conditions Precedentmeans
(a) the Planning Condition
(b) the Site Assembly Condition
(c) the R&A Condition
(d) the Funding and Viability Condition
(e) the Pylon Works Condition
(f) the Highways Condition
(g) the Footpath Order Condition and
(h) the Environmental Report Condition
(i) the Environmental Insurance Condition
Consultants Appointmentsmeans the form of appointment of the Consultants in a form consistent with Clause 18.5 and “Appointment” and “Consultant Appointment” shall be construed accordingly
Consultantsmeans the Architect, Highway Engineers, Mechanical and Electrical Engineers, Site investigation Consultant, Structural Engineers, Quantity Surveyor, Principal Contractor and Principal Designer and Contract Administrator and any other consultants which the Developer and the Council agree are necessary for the Works employed from time to time by the Developer in addition to or in substitution for any of them in accordance with this Agreement and the term “Consultant” shall be construed accordingly
Contract Administratormeans in relation to each Building Contract such third party of suitable repute and qualification appointed by the Developer with the approval of the Council (such approval not to be unreasonably withheld as to identity and terms of appointment) as contract administrator such party to be responsible for issuing the following:

(a) a Practical Completion Statement;
(b) a certificate for the Phase 2 Trigger Date;
(c) any certificate to be issued confirming an extension of time pursuant to a Delay Event offered to the Developer in accordance with Clause 23.2; and

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Hoylake Golf Resort contract Page 5 of 93

 (d) Notice of Completion of Making Good Defects
Contract Pricemeans the relevant value of consideration in pounds sterling paid under any contract for purchase (conditional or otherwise) entered into by the Developer and the owners of the Additional Land in accordance with Clause 4.2
Controlmeans in relation to a body corporate, the power of a person to secure that the affairs of the body corporate are conducted in accordance with the wishes of that person:-
(a) by means of the holding of shares, or the possession of voting power, in or in relation to that or any other body corporate or
(b) as a result of any powers conferred by the articles of association or any other document regulating that or any other body corporate
Core Requirementsmeans:-
(a) the Championship Golf Course
(b) the Club House
(c) the Hotel
(d) the Hoylake Bypass
(e) the Links Golf Academy and Practice Range
(f) the Electricity Pylon Works and
(g) the New Municipal Golf Course
more particularly described in the Developer’s Bid
Core Requirements Landmeans the part of the Site indicatively shown edged red on Plan 2 forming part of the Council’s Land as at the date of this Agreement and part of the Additional Land as may be varied as part of the Funding and Viability Condition
Council Feesmeans the fees referred to in Clause 16.2
Council’s Landmeans the freehold land within the Site owned by the Council (which includes the Municipal Golf Course) shown indicatively edged red on Plan 3 as may be varied as part of the Funding and Viability Condition title to which is deduced by the Title Documents
Council’s Onerous Conditionsmeans as set out in Part 2 of Schedule 2

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Hoylake Golf Resort contract Page 6 of 93


Council’s PremiumXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXX
Council’s Representativemeans such representative of the Council as the Council nominates from time to time for the relevant purpose and notifies the Developer
Council’s Solicitorsmeans Pinsent Masons LLP, 3 Hardman Street,
Manchester M3 3AU (Ref: PB07.WI0026.07001) or such
other firm of solicitors as the Council notifies to the
Developer
Council’s Surveyorsmeans such suitably qualified firm of surveyors as the Council notifies to the Developer from time to time
Council’s Land Transfermeans the transfer to be made of the Council’s Land from the Council to the Developer in such form as the Council and the Developer shall agree (acting reasonably and properly) and subject to the provisions of Part 1 of Schedule 4
Council’s Land Transfermeans the transfer to be made of the Council’s Land from the Council to the Developer in such form as the
Council and the Developer shall agree (acting reasonably
and properly) and subject to the provisions of Part 1 of
Schedule 4
Council Title Conditionhas the meaning afforded in Clause 4.1
Counselmeans counsel of not less than 10 years experience in planning law appointed at the Developer’s cost to act for the Developer and the Council jointly or in the case of dispute appointed by the President for the time being of the Law Society
Date of Practical Completionmeans in relation to any Phase the date stated in any Practical Completion Statement for the Works (or the relevant part thereof) as the date the Works (or the relevant part thereof) reached Practical Completion (or such later date as is determined by the Expert and “relevant Date of Practical Completion” shall be construed accordingly)
Defects Certificatemeans a certificate or notice of completion of making good of defects issued under the relevant Building Contract
Defects Liability Periodmeans a period expiring 12 months after the relevant Date of Practical Completion
Delay Eventmeans any event which would under the relevant Building Contract result in the relevant Building Contractor properly being granted an extension of time but for the avoidance of doubt shall exclude any matters caused or contributed to by the default of the Developer, the Building Contractor, the Consultants or the Sub-
Contractors or any of their employees or agents (as applicable)

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Hoylake Golf Resort contract Page 7 of 93

Design Datameans:-
(a) the Specfication;
(b) any other drawings, reports, documents, plans, software, formulae, calculations and other data relating to the carrying out of the Works
DeveloperXXXXXXXXXXXXXX
Developer’s Bidmeans the document dated December 2014 submitted in response to the Council’s tender for the Wider Development in the form attached hereto at Appendix 2
Developer’s Onerous Conditionmeans as set out in Part 1 of Schedule 2
Developer’s Representativemeans such reputable and suitably qualified person as the Developer may appoint and notify to the Council
Developer’s Solicitorsmeans Brabners LLP of Horton House, Exchange Flags, Liverpool Merseyside L2 3YL (Ref: XXXXXXXXXXXX or such other firm of solicitors as the Developer notifies to the Council
Developmentmeans the Works
Development Accountmeans a separate interest bearing account in the joint names of the Developer and the Council requiring signatures of both
Development Costsmeans the reasonable and proper costs incurred by the Developer and evidenced to the Council on an open book basis in implementing the Development
Development Programmemeans the programme for carrying out the Development as set out in the Developer’s Bid in the form attached at Appendix 4 as developed and/or varied by the Funding and Viability Condition and as may be varied and agreed by the parties from time to time acting reasonably and in good faith through the Project Delivery Group
Early Commencement Noticemeans a notice served by the Developer on the Council requesting to commence on a Phase earlier than the relevant Phase Commencement Date which the Council may accept in its absolute discretion
Electricity Pylon Worksmeans the diversion and undergrounding of the Scottish Power overhead electricity pylons as shown on Plan 4 to the approximate position shown red on Plan 5 or in such other location as the Developer and the Council may agree (acting reasonably)
Electricity Pylon Works Agreementmeans an agreement between (1) the Developer and (2) Scottish Power (and any other party lawfully required to be a party to such agreement) permitting the Developer (or Scottish Power as the case may be) to carry out or procure the carrying out of the Electricity Pylon Works

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Hoylake Golf Resort contract Page 8 of 93

Environmentmeans:-

(a) land, including surface land, sub-surface strata, sea bed and river bed under water and natural and man-made structures

(b) water, including coastal and inland waters, surface waters, ground waters and water in drains and sewers

(c) air, including air inside buildings and in other natural and man-made structures above or below ground and

(d) any and all living organisms or systems supported by those media, including humans

Environmental Insurance Conditionmeans the obtaining of a Satisfactory Environmental Insurance Policy in accordance with Clause 12
Environmental Reportmeans the reporting of an intrusive ground investigation to be prepared by the Site investigation Consultant pursuant to Clause 11 in respect of the Council’s Land, comprising the following investigations: (1) preliminary investigation comprising desk study and site reconnaissance (walkover / inspection); (2) exploratory
investigation comprising limited non-intrusive and intrusive elements designed to reduce significant uncertainties in knowledge of the Site and to provide information to help design any subsequent main investigation; and (3) main investigation comprising the detailed collection of intrusive data to test the accuracy of the conceptual site model, to assess all of the relevant risks and to provide information for selection and design of remedial works / reclamation works as appropriate, which may include but are not limited to cleaning up, remediating, removing, remedying, abating, containing,
monitoring controlling or ameliorating any Hazardous
Substances present at the Site
Environmental Report Conditionmeans the obtaining of a Satisfactory Environmental Report in accordance with Clause 11
Environmental Worksmeans any works identified by the Environmental Report and/or identified during the carrying out of the works which are necessary to enable the Development to be constructed, having particular regard (but not limited) to the presence of the former landfill site as identified in the Capita Symonds Technical Assessment Hoylake Golf Resort Project dated August 2007 and /or any other landfill site or Hazardous Substances revealed by the Environmental Report and/or during the cariying out of the works.
EU State aid Rulesmeans the rules embodied in Articles 107-109 of the Treaty on the Functioning of the European Union, the corresponding interpretive case law of the national and European courts and as further defined within guidance issued by the European Commission

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Hoylake Golf Resort contract Page 9 of 93

Event of Defaultmeans as set out in Clause 38
Expertmeans as set out in Clause 36
Financial Appraisalmeans the appraisal to be provided by the Developer containing the information set out in Clause 6.2, as the same is updated from time to time in accordance with this Agreement
Footpath Diversion Ordermeans the granting by the Local Planning Authority of an order(s) diverting and/or stopping up the Footpath(s) made pursuant to section 247 or section 257 of the 1990 Act or section 116 or 119 of the Highways Act 1980 pursuant to the Footpath Diversion Order Application
Footpath(s)means such public footpath(s) across the Site as the Council and the Developer agree require to be diverted pursuant to the 1990 Act for the Development pursuant to Clause 9.1
Footpath Diversion Order Applicationmeans an application for the Footpath Diversion Order(s) to be submitted by the Developer in a form previously approved by the Council for the diversion of the Footpath(s)
Footpath Order Conditionmeans the grant of a Satisfactory Footpath Diversion Order in accordance with Clause 9
Fundermeans any mortgagee, chargee or investment purchaser or other person providing finance to the Developer for the Works which may include the ultimate holding company of a Housebuilder and being a funding source of repute in the provision of funding of the type required for the carrying out of the Works by the Developer as approved by the Council
Funding Agreementmeans such loan or funding agreement(s) as the Approved Funder (or the Council if it is acting as Funder) requires
Funding Strategymeans the strategy to be provided by the Developer containing the information set out in Clause 6.5 as the same is updated from time to time in accordance with this Agreement
Funding and Viability Conditionmeans the condition set out in Clause 6 and satisfied in accordance with Clause 6.7
Ground Works Contractmeans the ground works contract between the Developer and the Ground Works Contractor for the carrying out of the Ground Works in a form to be approved by the Council in accordance with Clause 11.7.6 and where this forms part of a Building Contract the term ‘Ground Works Contract’ relates to the part of the Building Contract dealing with the Ground Works only
Ground Works Contractormeans such reputable engineering contractor with experience in land ground works and the remediation of environmental contamination appointed in accordance with Clause 11.7.5

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Hoylake Golf Resort contract Page 10 of 93

Ground Worksmeans any works that are on or under the ground or above the ground and likely to affect in any way the ground including the Environmental Works
Ground Works Specificationmeans the specification for the Ground Works to be
prepared in accordance with Clause 11.7
Hazardous Substancesmeans any natural or artificial substance or combination of substances (whether in solid or liquid form or in the form of a gas or vapour) capable of causing harm to the Environment or human health including any hazardous, toxic or dangerous substance or article
Highway Worksmeans the construction of the Hoylake Bypass more particularly described in the Specification
Highway Conditionmeans the completion of the Highways Agreement in accordance with Clause 8
Historic Contaminationmeans any (a) Hazardous Substance which was present in the Environment in, at, on or under the Council’s Land on or prior to the date of this Agreement; or (b) any such Hazardous Substance as described in (a) which emanates from the Council’s Land at any time
Hotelmeans an internationally branded upscale hotel to be constructed as part of the Works more particularly described in the Specification being of no less than an internationally branded 4 star hotel with minimum of 90 bedrooms (with associated brasserie restaurant, health spa and leisure facilities which may be located within the Club House)
Housebuildermeans a residential housebuilder proposed by the Developer and approved by the Council (such approval not to be unreasonably withheld) having sufficient skill, experience and financial resources to undertake the Residential Development
Hoylake Bypassmeans the proposed 7.5 metre, two-way undivided main carriageway with a 1 metre wide service/buffer strip and a shared 2.5 metre wide gateway/cycleway (providing for a 11 metre minimum total highway width) which is to be constructed on the Site pursuant to the Highways Agreement the approximate route of which is shown marked in pink on Plan 6 or along such other route as the Developer and the Council may agree (acting reasonably)
Implementationmeans commencement of development by the carrying out of a “material operation” (as defined in section 56(4) of the Town and Country Planning Act 1990 as amended) upon the Site (and “implement” and “implemented” shall be construed accordingly)
Insolventmeans:-

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Hoylake Golf Resort contract Page 11 of 93

 (a) in relation to a company, a receiver, administrative receiver or manager is appointed over all or any of its assets or a liquidator is appointed under section 135 of the Insolvency Act 1986 or it goes into liquidation either voluntarily or compulsorily (other than a voluntary liquidation solely for the purpose of amalgamation or reconstruction while solvent)

(b) in relation to a partnership or limited partnership:-

(i) it shall be unable to pay its debts whether within the meaning of sections 222 to 224 of the Insolvency Act 1986 as modified by the Insolvent Partnerships Order 1994, Sch 3, Pt 1 or otherwise or

(ii) a voluntary arrangement or any compromise is made with all or any of its creditors or

(iii) a receiver, administrative receiver (to the extent applicable), or manager is appointed over all or any of its assets or

(iv) it goes into liquidation either voluntary or compulsory (other than a voluntary liquidation solely for the purpose of
amalgamation or reconstruction while solvent) or

(v) the partnership or limited partnership is placed into administration or

(vi) any steps are taken in any jurisdiction which are of similar effect to any of the above or any of the events in
paragraphs (a) and/or (c) of this definition happen to any one or more of the partners and

(c) in relation to an individual a voluntary arrangement is made under Part VIII of the Insolvency Act 1986 or a bankruptcy petition is presented under Part IX of the Insolvency Act 1986 or he enters into any deed of arrangement or composition with all or any of his creditors

Insured Risksmeans fire, lightning, explosion, earthquake, storm, tempest, flood, impact, terrorism bursting or overflowing of water tanks and pipes, earthquake, damage by aircraft and other aerial devices or articles dropped therefrom, riot and civil commotion, labour, disturbance and malicious damage

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Hoylake Golf Resort contract Page 12 of 93

Likely to Succeedmeans that Counsel advises that the prospects of the relevant Appeal or Proceedings having a successful outcome are good, meaning that if such likelihood could be expressed as a percentage, the relevant percentage would be at least 66%
Links Golf Academy and Practice Rangemeans a 300-350 yard tournament practice area including a specialist links tuition area which is to incorporate a “short game” area specifically designed for links golf practice including between 3-5 target green areas and links driving range with an area of hardstanding to accommodate grand stand facilities and grass teeing areas are available at both ends of the driving range together with a teaching academy including a junior golf academy to attract local schools and players to golf the capacity requirements and specification of which are to comply with the requirements of the R&A and which is to be constructed as part of the Works more particularly described in the Specification
Local Planning Authoritymeans Wirral Borough Council or its statutory successor
Masterplanmeans the masterplan for the design layout and planning requirements for the Development as provided for in the Developer’s Bid and in the form attached hereto at Appendix 3 with such variations subsequently agreed between the parties in accordance with the provisions of this Agreement
Material Changemeans any one or more of the following:-

(a) the reduction of the quality of the materials and/or workmanship to be used in the Works below the quality identified in the Approved Documents

(b) the diminution or reconfiguration of, or removal of any component of, the Works subject to Clause 24.3.4

(c) any change, variation or other matter materially affecting the Development Programme (and for these purposes any delay of more than 2 months whether arising as a result of a single variation or as a series of connected or associated variations shall also be deemed to be material)

(d) any change, variation or other matter reducing the anticipated Development Receipts whether arising as a result of a single variation or as a series of connected or associated variations

(e) any change which materially alters or adds to or diminishes the appearance structure or external elevations of the Development

(f) any change which materially alters an area of the Development for which the Council is liable or will become liable for maintenance and repair

(g) any change which would result in the cost of the

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Hoylake Golf Resort contract Page 13 of 93

Works Materially Increasing

(h) any change which would increase the number of Residential Units

Material or Materiallymeans a factor that either increases or reduces either the cost or end value of the Works (whichever is relevant) by more than 15%
Mechanical and Electrical Engineermeans such reputable and suitably qualified person as the Developer and/or a Building Contractor may appoint with the approval of the Council (such approval not to be unreasonably withheld) as to identity and terms of appointment to act as the mechanical and electrical engineer in relation to each Phase of the Works
Municipal Golf Coursemeans the existing municipal 18-hole golf course at Hoylake the approximate position of which is shown edged red on Plan 7 forming part of the Council’s Land
Necessary Consentsmeans all building regulations and other approvals, certificates, consents, licences and permits from any competent authorities or third parties whether statutory or otherwise which are necessary to authorise the commencement and carrying out of the Development and/or the Works
New Municipal Golf Coursemeans the new “Nicklaus” designed 18-hole municipal golf course which is to be constructed on the New Municipal Golf Course Land forming part of the Works more particularly described in the Developers Bid and the Specification which is to be a minimum of an 18-hole, 6,253 yard par 70 golf course
New Municipal Golf Course Landmeans the part of the Site shown indicatively edged red on Plan 8
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New Municipal Golf Course Land Transfermeans the transfer to be made of New Municipal Golf Course Land from the Developer to the Council in such form as the Council and the Developer shall agree (acting reasonably and properly)
Non Material Changemeans a change which is not a Material Change
Non Paymentmeans failure by the Developer or an Approved Funder as the case may be to pay any sum due under this Agreement
after:-

(a) the Council has served on the Developer or an Approved Funder (as the case may be) the demand (the “First Demand”) for that sum

(b) not earlier than 10 Working Days after the date of the First Demand the Council has served on the Developer or an Approved Funder (as the case may be) a further demand (the “Second Demand”) notifying the Developer or the Approved Funder (as the case may be) of the

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Council”s intention to treat non-payment of it as an Event of Default and

(c) the Developer or the Approved Funder (as the case may be) has failed to make the relevant payment within 10 Working Days after the Second Demand

Notice of Completion of Making Good Defectsmeans a notice issued under the Building Contract(s) that any defects notified during the defects liability period have been rectified (excluding any items of snagging works)
Notification Datemeans the date on which the Notification is issued by the Local Planning Authority or the Secretary of State
Notificationmeans the written notification of the grant or refusal of a Planning Application by the Local Planning Authority or the Secretary of State
Onerous Conditionmeans a condition which is imposed either in a Planning Permission or reserved matters approval or other approval or contained in a Planning Agreement which the Local Planning Authority and/or the Secretary of State requires to be entered into prior to the grant of such Planning Permission and which is either a Council’s Onerous Condition as set out in Part 2 of Schedule 2 or Developer’s Onerous Condition as set out in Part 1 of Schedule 2
Outline Financial Packagehas the meaning given to it in Clause 6.6
Overagemeans the overage further details of which are set out in Clauses 13.1 and 13.2
Overage Agreementmeans the agreement to be entered into by the Council and the Developer pursuant to Clause 13
Phasemeans Phase 1 and Phase 2 and “Phases” means any one or more of them
Phase 1means the Phase marked “Phase 1” on the Phase Plan
Phase 2means the Phase marked “Phase 2” on the Phase Plan
Phase Commencement Datemeans the Phase 1 Commencement Date and the Phase 2 Commencement Date, and “Phase Commencement Date” means any one or more of them
Phase 1 Commencement Datemeans the Unconditional Date
Phase 2 Commencement Datemeans the date of the Phase 2 Trigger Date or such earlier date as accepted by the Council following the service of an Early Commencement Notice by the Council
Phase 2 Trigger Datemeans the date of issue by the Contract Administrator of a certificate certifying that the nine holes of the New Municipal Golf Course are practically complete and greening
Phase 1 and Phase 2 Worksmeans the Works

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Hoylake Golf Resort contract Page 15 of 93

Phase of Worksmeans the Phase 1 and Phase 2 Works and “Phase of Works” means any one or more of them
Phase Planmeans a phasing plan to be prepared by the Developer for the delivery of the Development and submitted to the Council as part of the Funding Strategy and (once approved by the Council) as may be updated by the Developer in accordance with the terms and conditions of this Agreement
Planmeans a Plan at Annexure 1 and numbered accordingly
Planning Agreementmeans an agreement or agreements which the local planning authority or Secretary of State require to be entered into as a pre-condition of the issue of or as a condition attaching to a Planning Permission under section 106 of the 1990 Act
Planning Applicationmeans the hybrid application for planning permission made in the name of the Developer for the Wider Development pursuant to the Masterplan and subject to the approval of the Council (not to be unreasonably withheld), to include outline permission for the Residential Development and full (i.e. not reserving matters for approval) permission for the Development
Planning Conditionmeans the obtaining of a Satisfactory Planning Permission in accordance with Clause 7
Planning Condition Datemeans the date 24 months after the date the Planning Application has been submitted in accordance with Clause 7.3
Planning Condition Satisfaction Datemeans the date on which the first of the following occurs:-

(a) if a Satisfactory Planning Permission is granted the date which is six weeks from (but excluding) the date of the Satisfactory Planning Permission provided that no Proceedings have been instituted before this date or

(b) if Proceedings are instituted the date on which the Satisfactory Planning Permission is finally granted or upheld whether after a reference back to the Secretary of State or the local planning authority (as the case may be) and so that such Planning Permission remains intact and unmodified (or modified but still constituting a Satisfactory Planning Permission) and such Planning Permission is no longer open to challenge in any way by the issue of further Proceedings or

(c) the date of execution of any Planning Agreement that is required by the local planning authority or Secretary of State to be entered into as a pre-condition to the issue of the Satisfactory Planning Permission

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Planning Permissionmeans the planning permission granted pursuant to the Planning Application
Planning Refusalmeans a refusal of a Planning Application including a deemed refusal arising under section 78(2) of the 1990 Act or the grant of Planning Permission that does not discharge the Planning Condition or imposes Onerous Conditions whether in a Planning Permission or in any associated Planning Agreement
Post Planning Packagemeans a refresh of the Outline Financial Package to be carried out by the Developer following receipt of a Satisfactory Planning Permission in accordance with Clause 6.13
Practical Completionmeans a State in which the Works are fit for beneficial use and occupation and complete in all respects and free from all apparent defects in or omissions from the Works, and provided that the following conditions have been satisfied:-

(a) the Works are weather and water tight

(b) the Works have been practically completed and are in accordance with the Specification, the Planning Permission, all Statutory Requirements and Necessary Consents

(c) all drainage is available and fully functional and is connected ultimately to public services either directly or through a private system

(d) all electricity, gas, heating, cooling and hot and cold tested water services are supplied and connected to the mains

(e) any works, payments and actions which are required under any planning permission in so far as the Building Contractor is responsible for discharging the same under the terms of the relevant Building Contract, before the Works can be lawfully occupied and opened for trade and used, have been carried out or paid and all Necessary Consents have been obtained and fully complied with and satisfied

(f) any tests for plant and machinery in or serving the Works (including the mechanical and electrical services systems for the Works), have been fully balanced, tested, commissioned, certified, explained and demonstrated

(g) where appropriate in an energy performance certificate and in a recommendation report for the Works, in conformity with the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 (as amended) (or any equivalent regulations replacing them) is available and has been provided by the Building Contractor to the Contract Administrator and

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Hoylake Golf Resort contract Page 17 of 93


(h) confirmation has been provided by all relevant bodies and authorities that all matters relating to building regulation approval have been addressed and that the relevant part of the Works has been “signed off” by the relevant inspecting authority)

save for any minor omissions or snagging which can be remedied without significant interference with or interruption to the normal reasonable and beneficial occupation and use and enjoyment (or the fitting out for use) of the Works provided that where it is expressly stated in the Specification that the testing, commissioning, regulation or adjustment of any mechancial or electrical services is to be completed, or any other thing is to be done, before the Practical Completion of the Works, the Works shall not be considered to be practically completed until the same is completed or done as the Specification requires

Practical Completion Statementmeans a statement issued under the Building Contract(s) that the Works or the relevant section of the Works have achieved Practical Completion
Prescribed Ratemeans 4% per annum above the base rate from time to time of Barclays Bank Plc or (if such base rate shall cease to be published) 4% per annum above such alternative equivalent base rate for the time being by reference to which clearing banks in the City of London make commercial loans within the United Kingdom domestic market as the Council elects
Principal Contractormeans the principal or sole contractor(s) for the purposes of the CDM Regulations in relation to each Phase of the Works
Principal Designermeans any person(s) who is appointed to the role of principal designer for the purposes of the CDM Regulations by the Developer and/or a Building Contractor with the approval of the Council (such approval not to be unreasonably withheld) as to the identity and terms of appointment to act as principal designer in relation to each Phase of the Works
Proceedingsmeans any form of judicial proceedings or legal challenge including:-

(a) an application for judicial review under Civil Procedure Rule 54 including in each case any appeals to a higher court following a judgment of a lower court (“Judicial Review Claim”) or

(b) an application pursuant to section 288 of the 1990 Act arising from the grant of a Satisfactory Planning Permission or a Planning Refusal by the Secretary of State including in each case any appeals to a higher court following a judgment of
a lower court or

(c) an application to the High Court pursuant to

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Hoylake Golf Resort contract Page 18 of 93

section 23 of the Acquisition of Land Act 1981 or

(d) an application (within the meaning of paragraphs (a) or (b) above) arising from the grant of a Satisfactory Planning Permission or a Planning Refusal following a reconsideration of a Planning Application by the Local Planning Authority or the Secretary of State or an Appeal to the Secretary of State following a previous Satisfactory Planning Permission or Planning Refusal being quashed pursuant to an application within the meaning of paragraphs (a) or (b) above and the matter being remitted to the Local Planning Authority or the Secretary of State (as the case may be)

Principal Contractormeans the principal or sole contractor(s) for the purposes of the CDM Regulations in relation to each Phase of the Works
Projectmeans the carrying out of the Development by the Developer in accordance with this Agreement
Project Delivery Groupmeans the project delivery group appointed in accordance with and undertaking the role set out in Clause 33
Pylon Works Conditionmeans the completion of the Electricity Pylon Works Agreement in accordance with Clause 5
Quantity Surveyormeans such reputable and suitably qualified person as the Developer and/or a Building Contractor may appoint with the approval of the Council (such approval not to be unreasonably withheld) as to the identity and terms of appointment to act as quantity surveyor in relation to each Phase of the Works
R&Ameans the Royal and Ancient Golf Club of St Andrews
R&A Agreementmeans the agreement dated 25 January 2001 made between (1) Wirral Borough Council and (2) The Royal Liverpool Golf Club and (3) R&A
R&A Agreement Criteriameans the terms and conditions and requirements as specified in the first, second and third schedules of the R&A Agreement as may be varied by agreement between (1) the Council (2) the Developer (3) the R&A and (4) the Royal Liverpool Golf Club from time to time
R&A Conditionmeans the completion of the R&A Replacememt Agreement in accordance with Clause 10
R&A Replacement Agreementmeans an agreement to be entered into by (1) the Council (2) the Royal Liverpool Golf Club and (3) the R&A in a form approved by the Developer and the Council pursuant to Clause 10 which satisfies the R&A Agreement Criteria for the hosting of future Open Golf Championships at the Royal Liverpool Golf Course after the next Open Golf Championship is hosted at the Royal Liverpool Golf Club in accordance with the R&A Agreement
R&A Transport Agreementmeans the agreement dated 26 March 2002 made between (1) Wirral Borough Council and (2) Merseyside Passenger Transport Executive

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Residential Developmentmeans the works required to construct the Residential Units together with ancillary infrastructure
Residential Phasemeans the land comprised within a phase of Residential Development as identified in the Phase Plan
Residential Phase Transfermeans the transfer to be made of the Residential Phase(s) from the Council to the Housebuilder in such form as the Council and the Developer shall agree (acting reasonably and properly) and subject to the provisions of Part 1 of Schedule 4
Residential Unitsmeans the number and specification of residential units contained in the approved Outline Financial Package
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Review Proceduremeans the procedure set out in Schedule 5 (Review Procedure)
Reviewable Documentsmeans:-

(a) any Design Data

(b) the Phase Plan (and any variations or amendments thereto)

(c) the Development Programme and

(d) any other documents that are designated as Reviewable Documents as part of the satisfaction of the Funding and Viability Condition

Royal Liverpool Golf Clubmeans the Royal Liverpool Golf Club of Meols Drive, Hoylake, Wirral, Merseyside
S106 Costsmeans the aggregate of any financial contributions required to be paid by the Developer under the Planning Agreement and the reasonable and proper costs likely to be incurred by the Developer in carrying out any works or complying with any obligations contained within the Planning Agreement
Satisfactory Environmental Insurance Policymeans a policy (as further detailed in Clause 12.2) which is satisfactory to the Council
Satisfactory Environmental Reportmeans the results of the Environmental Report which are satisfactory to the Developer
Satisfactory Footpath Diversion Ordermeans a Footpath Diversion Order that is satisfactory to each party acting reasonably

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Satisfactory Planning Permissionmeans Planning Permission granted either by the Local Planning Authority or the Secretary of State which is free from any Onerous Condition
Satisfactory Titlemeans freehold title which is either registered with absolute title at the Land Registry or where unregistered is subject to a good root of title and in each case which is free of any right, restriction, covenant or other matter which would in the view of the Council (acting in its reasonable discretion as a landowner):-

(a) materially adversely affect the implementation of or subsequent use of the Development or the value of the Site and/or the ability to let or effect a disposal of the completed Development

(b) and/or materially adversely affect the value of the Site and

(c) and/or materially adversely affect the ability to let or effect a disposal of the completed Development

(save to the extent that insurance in respect or such matter is reasonably likely to be available on normal commercial terms)

Secretary of Statemeans the Secretary of State or other minister, person or body for the time being having or entitled to exercise the powers now conferred on the Secretary of State by sections 77 and 79 and section 247 and 257 of the Town and Country Planning Act 1990
Service Mediameans apparatus and conducting mediator the passage of foul and surface water, drainage, electricity, gas, water and telecommunications and any other services and supplies of whatsoever nature
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Site Investigation Consultantmeans such reputable and suitably qualified person as the Developer and the Council may jointly appoint (acting reasonably and properly) to act as a site investigation consultant in accordance with Clause 11.2
Sitemeans the land shown edged red on Plan 9
Specificationmeans the plans, drawings, elevation and specification for the Works to be agreed between the Council and the Developer in accordance with Clause 17.2.1
Statutory Agreementsmeans an agreement or agreements to be entered into with a third party relating to the provision, construction and thereafter adoption of roads and services under section 38 or section 278 of the Highways Act 1980 or under section 8 of the Public Health Act 1936 or section 104 of the Water Industry Act 1991 or under section 111 of the Local Government Act 1972 or any other similar legislation
Statutory Requirementsmeans the requirements from time to time in force by any Act of Parliament or instrument, rule or order made thereunder or of any regulation or bye-law of any local authority or statutory undertaker or supply authority including any European directives or regulations legally enforceable in England and Wales
Step In Agreementmeans any agreement(s) to be made between (1) the Council (2) the Developer (3) Approved Funder (and such other party(s) as the Council may properly require) providing for the remedying of any Event of Default or complying with the terms of this Agreement in a form acceptable to the Council
Structural Engineermeans such reputable and suitably qualified person as the Developer and/or a Building Contractor may appoint with the approval of the Council (such approval not to be unreasonably withheld) as to the identity and terms of appointment to act as structural engineer in relation to each Phase of the Works
Sub-Contractmeans any sub-contract or trade contract which the Building Contractor or the Developer enters into in relation to the Development where such Sub-Contractor has a material design responsibility
Sub-Contractormeans any sub-contractor or supplier under a Sub-Contract
Title Documentsmeans the title documents which deduce title to the Council’s Land and to which the Site is subject as set out in Schedule 1
Unconditional Datemeans the date upon which the last of the Conditions Precedent is fulfilled (or waived where permitted)
XXXXXXXXXXXXXXmeans the land shown edged red on Plan 10

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Value for Money Criteriameans that all sums expended in payment of the costs and fees concerned are reasonable and proper and are comparable to the most favourable terms that could reasonably have been obtained in the open market on an arms length basis (but having regards to reasonable procurement practice) at the time the expenditure was committed to, having regard to all relevant circumstances and are charged at reasonable rates and represent value for money
Viablemeans the Development is viable because the Financial Appraisal shows (taking into account the Residential Development) that there is sufficient funding and return (here meaning the difference between income and costs as calculated in accordance with Financial Appraisal) for the successful delivery and thereafter operation and running of the Project
VATmeans Value Added Tax chargeable under the Value Added Tax Act 1994 or any equivalent tax or duty which may be imposed in substitution therefore or in addition thereto at the rate applicable from time to time
Warrantymeans a warranty from the Building Contractor, Consultants and Sub-Contractors in a form consistent with Clause 18.7 and previously approved by the Council and “Warranties” shall be construed accordingly
Wider Developmentmeans both the Development and the Residential Development
Working Daymeans any day other than Saturday, Sunday or a public holiday in England and Wales and “Working Days” shall be construed accordingly
Worksmeans all works required to deliver the Core Requirements in accordance with the Specification including the demolition of existing buildings and structures on the Site, site clearance, site preparation, and the diversion of any Service Media

1.2 In this Agreement:-

1.2.1 where the context so admits, words importing the singular number include the plural number and vice versa, words importing one gender include all genders and references to a “person” are deemed to include any individual, firm, unincorporated association or body corporate;

1.2.2 references to Clauses or Schedules unless otherwise specified mean the Clauses of or the Schedules to this Agreement;

1.2.3 reference to paragraphs in any Schedule unless otherwise specified means the paragraphs of that Schedule;

1.2.4 headings to Clauses and Schedules are disregarded in interpreting this Agreement;

1.2.5 the parties will comply with their obligations contained in the Schedules (subject to Clause 3.1);

1.2.6 this Agreement is deemed to incorporate the Standard Conditions with such amendments (including the use of capital letters) as are necessary to make the Standard Conditions

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referable to this Agreement. If there is any conflict between the Standard Conditions and the express provisions of this Agreement, this Agreement prevails;

1.2.7 any references to the consent or approval of any party to this Agreement not to be unreasonably withheld shall also include an obligation not to unreasonably delay such consent or approval;

1.2.8 it is acknowledged that (without prejudice to any of the other provisions of this Agreement) in assessing whether or not the Council has complied with any obligation to act reasonably it may have regard to all circumstances aims and interests that are relevant to it as local authority;

1.2.9 words denoting an obligation on a party to do any act, matter or thing include an obligation to procure that it be done, and words placing a party under a restriction include an obligation not to permit infringement of the restriction;

1.2.10 any reference to a month is a reference to a calendar month;

1.2.11 reference to a “party” means a party to this Agreement and “parties” shall be construed accordingly;

1.2.12 any reference to satisfied or satisfaction shall include circumstances where such arises by deeming or waiver;

1.2.13 the word or words “include”, “including” or “in particular” shall not have effect so as to limit in any way the words to which such word or words relate;

1.2.14 any consent or approval of either party required under this Agreement save in circumstances in which it is unreasonably withheld or delayed in breach of this Agreement shall be required to be obtained before the actual event to which it applies is carried out or done and shall be effective only when the consent or approval is given in writing or is deemed to have been given;

1.2.15 where two or more people form a party to this Agreement the obligations they undertake may be enforced against them all jointly or against each individually;

1.2.16 in this Agreement references to any statute or statutory provision include references to :-

(a) all Acts of Parliament and all other legislation having legal effect in the United Kingdom; and

(b) any subsequent statutes directly or indirectly amending, consolidating, extending, replacing or re-enacting that statute and also include any orders, regulations, instruments or other subordinate legislation made under that statute (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 at the date of this Agreement including for the avoidance of doubt the changes incorporated by SI 2006/84 (The Town and Country Planning (Use Classes) (Amendment) Order 2005));

1.2.17 “indemnify” means to indemnify against all actions, claims, demands and proceedings taken or made against the Council and all costs, damages, expenses, liabilities and losses incurred by the Council;

1.2.18 where reference is made to an Expert it means to the Expert and in accordance with the procedures set out in Clause 36;

1.2.19 reference to the Works, the Core Requirements, the Project, the Additional Land, the Council’s Land, the Core Requirements Land, the Development, a Phase and the Site include reference to any part of them unless expressly stated otherwise in this Agreement;

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1.2.20 reference to “all reasonable endeavours” shall be construed as an obligation to use all reasonable but commercially prudent endeavours and will not require a party to act contrary to its commercial interests; and

1.2.21 where any confirmation, demand notice or information is to be given under this Agreement, it must be given in writing.

2. OBJECTIVES

The parties confirm that it is their intention to deliver the Project.

3. AGREEMENT FOR SALE SUBJECT TO CONDITIONS

3.1 Operative Clauses

Other than Clauses 1-11, 16.2, 31-33 and 35-42 the provisions of this Agreement are conditional on the Unconditional Date occurring on or before the determination of this Agreement.

3.2 General Obligation to satisfy Conditions Precedent

Without limiting or prejudice to any other provisions of this Agreement:-

3.2.1 The Developer and the Council (where appropriate) shall comply with their respective obligations in this Agreement to procure the satisfaction of the Conditions Precedent:-

(a) the Funding and Viability Condition in accordance with Clause 6

(b) the Site Assembly Condition in accordance with Clause 4;

(c) the Pylon Works Condition in accordance with Clause 5;

(d) the Environmental Report Condition in accordance with Clause 11;

(e) the Planning Condition the Footpath Order Condition and the Highways Condition in accordance with Clauses 7, 8 and 9 respectively;

(f) the R&A Condition in accordance with Clause 10; and

(g) the Environmental Insurance Condition in accordance with Clause 12.

3.2.2 The sequencing of the Works shall be as per the Development Programme;

3.2.3 Each party shall assist each other with the performance of its obligations pursuant to Clause 3.2.1 by responding promptly to any written request as to the other party’s views and requirements in relation to any of the relevant Conditions Precedent;

3.2.4 The Developer and the Council shall keep each other fully informed of the actions each is taking and the progress that is being made by each to satisfy their respective Conditions Precedent, including inviting the other to attend all meetings with third parties and providing minutes of such meetings, and regular reporting on the progress of any third party negotiations.

3.3 Planning Condition Date

3.3.1 If the Planning Condition Satisfaction Date has not occurred by the Planning Condition Date the Council may determine this Agreement at any time after the Planning Condition Date by serving notice on the Developer. On the date 10 Working Days after service of such notice this Agreement will determine.

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3.3.2 If on the Planning Condition Date:-

(a) there has been the issue of a Planning Permission or the Local Planning Authority or the Secretary of State has indicated that he is minded to grant a Planning Permission which in each case is a Satisfactory Planning Permission and the grant of which is subject only to completion of a Planning Agreement; or

(b) a decision regarding an Appeal Call-in or referral to the Government Office made prior to such date has not been given;or

(c) Proceedings have been instituted and final determination is awaited; or

(d) the result of the determination of the Expert (following the reference to the Expert prior to such date of any dispute between the parties as to whether or not any of the Conditions Precedent have been satisfied) is awaited;

then the Planning Condition Date will be extended until 15 Working Days after all such matters have been finally disposed of or determined (including any hearing, inquiry, Appeal or further Proceedings in relation thereto).

3.4 Condition Date

If the Unconditional Date has not occurred on or before the Condition Date either party may determine this Agreement at any time after the Condition Date by sending notice to that effect on the other. On the date 56 days after service of such notice this Agreement will determine.

3.5 Failure to Submit Planning Application
If the Developer fails to submit the Planning Application to the Local Planning Authority by the date set out in Clause 7.3 (unless the Planning Application is submitted prior to the service of the notice in this Clause) the Council may give notice to the Developer terminating this Agreement with
immediate effect.

3.6 Obligations on Termination

If this Agreement is terminated:-

3.6.1 the Developer will immediately return any documents received from the Council to the Council and will cancel any registrations previously effected in relation to this Agreement;

3.6.2 such termination is without prejudice to any rights of either party against the other in respect of or arising out of any antecedent breach of any of the provisions of this Agreement.

4. SITE ASSEMBLY CONDITION

4.1 For the purposes of this Clause 4 the following definitions shall have the following meanings:-

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Responses

  1. Does anyone know of any free OCR software that can deal with image files, multi-page PDF files and can cope with artifacts and low resolution?

    FreeOCR really struggled with some of the images because of the low image quality.

    • Are you on Mac or PC?

      • I’m on a PC at the moment.

  2. Hi John, I know the print is small but I could bot see anywhere the phrase due diligence has been performed on a tin pot company with 5 directors with a 1000 £1 shares which is not paid up with no money in the bank and a £190million budget.
    Wirral council have lavished £600k so far so can you enlighten me as to who the investors might be. I assume this document contained in a very large brown envelope???.Also Million pound road scheme who will be paying for that, and as far as jobs are concerned most would low paid, and what would green fees be? also what financial benefit would there be for ratepayers?. Serious question which I hope you know the answers too then.

    • The issue about the road scheme is addressed in the contract. Just out of interest the highway works are estimated at costing around £16.5 million.

      It’s on page 65 in section 34.

      “34. HIGHWAY WORKS FUNDING

      34.1 Prior to entering into this Agreement, the Council has applied for central government funding in respect of the Highway Works. If the Council’s application is successful, it will apply the funding that it receives towards the Highway Works and/or (at its discretion) carry out the Highway Works (subject to any terms and conditions attaching to that funding).

      34.2 If the Council receives no, or insufficient central government funding for the Highway Works, then subject to receiving the Council’s Premium from the Developer, it will apply such amount of that premium as it reasonably required to fund the Highway Works.

      34.3 The parties acknowledge that:-

      34.3.1 The Council’s obligations contained in this clause are subject always to the Council being satisfied that it provides for the Highway Works or works it undertakes directly (whether on its own or in conjunction with any other element of the Wider Development) is provided in accordance with the EU State aid Rules;

      34.3.2 The Council shall not be obliged to contribute to the Highway Works beyond any monies it actually receives pursuant to Clause 34.1 or Clause 34.2; and

      34.3.3 The Council may impose such terms and conditions in respect of any funding it provides for the Highway Works as it deems reasonable and appropriate in the circumstances.”

      So to sum up, Wirral Council will ask the government. If the government say no, Wirral Council will pay for it using the money they get from the Developer!

      In other words, they won’t spend their own money on it as far as I can tell, just other peoples’ money!

    • It’s possible that Wirral Council are referring to the directors of the Nicklaus Joint Venture Group Limited who are:-

      ANDERSON, James Paul
      GORDON, James
      REES, Iwan Lynn
      ROUSE, Andrew Gerard
      STRINGER, Paul

      Wirral Council regards the time that the 5 NJVG Ltd directors have spent on the project as an “investment”.

      Wirral Council states that the financial benefit to ratepayers will be:-

      a) council tax receipts from the 200 residential properties planned as part of the project,
      b) New Homes Bonus,
      c) business rates receipts from the business element of the project.
      d) other amounts that are “commercially sensitive”

      However I would state however that Wirral Council will also have to provide services to these new dwellings (such as collecting rubbish etc) which could be more than the extra Wirral Council receives in council tax, business rates etc.

  3. I hate this Golf course, the are going ahead with it, because they think they are getting roads and house’s with it, but i still want to know if the Council lends the £24 million to this Developer is it legal, i read in the papers the other day about Barclays bank doing the same thing, and that wasn’t!

    • The loan from Wirral Council to the Developer is up to £26 million (which is a little higher than the £24 million you mentioned).

      However the Development Agreement published as part of this post goes into more detail about it. However the loan won’t be given until planning permission is granted.

      As the developer hasn’t yet applied for planning permission (a decision on the planning application is expected in June 2019), it’ll be a while before the Developer receives any money in the form of a loan from Wirral Council. However the decision to do so was made at the special Cabinet meeting on the 18th December 2017.

      Whether it’s legal or not depends on whether:-

      (a) the decision was made by the right body at Wirral Council (by the right people),
      (b) whether the loan conforms with their Treasury Management Policy
      (c) etc etc…


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