6 more pages of the Wirral Schools Services Limited contract with Wirral Council

                    

Continues from The first 17 pages of Wirral Council’s contract with Wirral Schools Services Limited. This is a further six pages in the same contract.

THIS AGREEMENT is made on 27 March 2001.

BETWEEN:

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

(2) WIRRAL SCHOOLS SERVICES LIMITED a company incorporated under the laws of England and Wales with registered number 41156367 whose registered office is at Frogmore Park, Watton-at-Stone, Hertford SG14 3RU (“Project Co”).

BACKGROUND:

(A) By virtue of sections 13 and 14 of the Education Act 1996, the Authority as local education authority is under statutory duties to secure that efficient primary and secondary education are available to meet the needs of the population of its area and that sufficient schools for providing such education are available for its area.

(B) By virtue of section 16 of the Education Act 1996, the Authority as local education authority may, for the purposes of fulfilling the above duties, establish and maintain primary and secondary schools.

(C) By a notice dated 17 November 1998 in the Official Journal, the Authority invited expressions of interest from appropriately qualified tenderers for the provision of accommodation and related support services for eight secondary schools and one primary school in accordance with the Government’s Private Finance Initiative.

(D) Project Co has submitted a proposal which, as negotiated through the negotiated tender process, has been agreed to by the Authority.

(E) The Authority and Project Co have agreed to work together in a spirit of co-operation to achieve the objectives of the Project. The Authority and Project Co have agreed to carry out the Project on the terms and conditions set out in this Agreement.

(F) The Project is a private finance initiative project within the meaning of the Housing Grants, Construction and Regeneration Act 1996.

IT IS AGREED as follow:

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PART 1 – INTERPRETATION

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement (including the Background), the following terms shall, unless the contract otherwise requires, have the following meanings:

“1999 Act” means the Local Government Act 1999;

“Academic Year” means from the first day to the last day (excluding holidays) of the school year, such period not to be more than 195 days;

“Accommodation Actual Completion Date” means, in respect of the Accommodation Works at a Site, the date on which those Accommodation Works are Complete, being either the date stated in the certificate issued persuant to Clause 14.6 (Completion) or if this date is disputed in accordance with the Fast Track Resolution Procedure, the date determined under that procedure, as being the date upon which such certificate should have been issued;

“Accommodation Completion Date” means, in relation to the Accommodation Works at a Site, the date set out in column (1) of the Schedule of Key Dates by which such Accommodation Works must be Complete;

“Accommodation Services” means the services described in the Accommodation Services Output Specifications;

“Accommodation Services Output Specifications” means the specifications contained in Schedule 5 (Accommodation Services) as may be amended by a Variation or otherwise in accordance with this Agreement;

“Accommodation Works” means the works listed in Schedule 3 Part 4A;

“Acquired Rights Directive” means Council Directive 77/187 EEC as amended;

“Act of Vandalism” means a wilful, deliberate or malicious act carried out by Authority staff or pupils, guests, visitors or other persons authorised by the Authority who are properly on the relevant Site which results in damage to the relevant Facility or Site or any Fixed and/or Moveable Equipment thereon;

“Actual Date of Completion” means:

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(a) in respect of the Initial Works at a Site, the date on which those Initial Works are Complete, being either the date stated in the certificate issued persuant to Clause 14.4 (Completion) or if this date is disputed in accordance with the Fast Track Resolution Procedure, the date determined under that procedure, as being the date upon which such certificates should have been issued; or

(b) in respect of any Variation Works, the date on which the Variation Works are Completed in accordance with the relevant Variation Report agreed or determined (as appropriate) pursuant to Clause 32 (Variations) and certified as such pursuant to Clause 14.4 (Completion);

“Adjudication” means the procedure set out in paragraph 3 of Schedule 12 (Dispute Resolution);

“Adjudicator” means an adjudicator appointed under paragraph 3 of Schedule 12 (Dispute Resolution);

“Affected Party” means a Party affected by the occurence of the events listed in paragraphs (a), (b) and (c) of the definition of Force Majeure;

“Agenda 21” means the action plan establishing a framework for law in the field of sustainable development known as “Agenda 21” adopted at the United Nations Conference on Environment and Development held in Rio de Janeiro in June 1992;

“Agent” means Societété Générale of SG House, 41 Tower Hill, London, EC3N 4SG and its successors and assigns;

“Alternative Scheme” means one or more pensions scheme(s) each of which is approved or capable of approval under Chapter 1 Part XIV of the Income and Corporation Taxes Act 1988 or the trustees of such a scheme as the case may be;

“Amended Plans” has the meaning given in Clause 32.12 (Plans);

“Ancillary Documents” means:

(a) the Shareholder’s Agreement;

(b) Project Co’s memorandum of association and articles of association;

(c) the D&B Contract;

(d) the Support Services Management Agreement;

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(e) the Direct Agreements;

(f) the D&B Contract Performance Guarantee; and

(g) the Support Services Management Agreement Performance Guarantee;

“Annual Debt Service Cover Ratio” or “ADSCR” whilst the Initial Funding Agreements are in force shall have the meaning given to Senior Debt Service Cover Ratio in the Initial Funding Agreements and thereafter means in respect of any period for which it falls to be calculated the ratio of A:B where:

A is the aggregate of Cash Available for Debt Service for that period; and

B is the Annual Debt Service Obligations for that period;

“Annual Maintenance Programme” means the Maintenance programme agreed or determined pursuant to Clause 19.3 (Annual Maintenance Programme);

“Annual Net Third Party Profit” means Gross Third Party Revenues earned in respect of third party use during a Year less the Third Part Costs incurred in respect of third party use during that Year;

“Annual Utility Services Consumption Targets” has the meaning given in paragraph 2.1 of Part 6 (Utility Services) of Schedule 4 (Payments);

“Appeal” means all or any of the following:

(a) an appeal to the Secretary of State in accordance with Section 78 of the Planning Acts against:

(i) a conditions attached to the Full Planning Permissions or Variation Planning Approvals and/or a refusal of a planning application for Planning Approvals and/or Variation Planning Approvals; or

(ii) non-determination of a planning application for Planning Approvals and/or Variation Planning Approvals; or

(b) the reference of a planning application to the Secretary of State under Section 77 of the Planning Acts,

and the expression “to Appeal” shall be construed accordingly;

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“Approved Leased Equipment” means sanitary equipment, fire detection and prevention systems, telephone systems, photocopiers and vehicles;

“Arbitration” means the procedure set out in paragraph 4 of Schedule 12 (Dispute Resolution);

“Arbitrater” means an arbitrator appointed in accordance with paragraph 4 of Schedule 12 (Dispute Resolution);

“Asbestos” means any of the following minerals; crocidolite, amosite, chrysolite, fibrous actinolite, fibrous antthophyllite, fibrous tremolite and any mixture containing any of those minerals;

“Asset Register” means, with respect to each Facility, the asset register to be compiled by Project Co pursuant to Clause 22.18 (Asset Registers);

“Associated Company” means, in respect of a relevant company, a company which is a Subsidiary or a Holding Company of that relevant company or a company which is a Subsidiary of a Holding Company of that relevant company but not that relevant company itself and, in the case of Project Co, shall include each of the Consortium Members (the terms “Holding Company” and “Subsidiary” bearing the meanings defined in part XXXVI of the Companies Act 1985);

“Authority’s Confidential Information” has the meaning given in Clause 48.1 (The Authority’s Confidential Information);

“Authority’s D&B Contract Direct Agreement” means the direct agreement of the same date as this Agreement between the Authority, the D&B Contractor and Project Co;

“Authority’s Service Adviser” means the person appointed by the Authority (and notified to Project Co) to act pursuant to Clause 40 (Representatives);

“Authority’s Share” means the percentage figures in the fourth column of the table set out below corresponding to the amount of Cumulative Capital Expenditure at the relevant time, as shown in the first column of the table set out below:

Cumulative Capital Expenditure	Project Co’s Share	Cumulative Cost to Project Co	Authority’s Share
£0 – £0.6 million	100%	£600,000	0%
£0.6 – 1.2 million	75%	£1,050,000	25%

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£1.2 – 1.8 million	50%	£1,350,000	50%
£0.6 – 2.4 million	25%	£1,500,000	75%
Over £2.4 million	0%	£1,500,000	100%

“Authority’s Solicitors” means Rowe & Maw of 20 Black Friars Lane, London EC4V 6HD;

“Authority’s Support Services Management Direct Agreement” means the direct agreement of the same date as this Agreement between the Authority, the Support Services Manager and Project Co;

“Authority’s Works Adviser” means the person appointed by the Authority (and notified to Project Co) to act pursuant to Clause 40 (Representatives);

“Availability Deduction” has the meaning given in Part 1 (Definitions) of Schedule 4 (Payments);

“Base Case Financial Model” means the financial model as at the Effective Date setting out the basis on which the financing of the Project and the costs of and revenue from the Project have been calculated by Project Co (including the assumptions used, the cell logic network for the financial model software and any software and accompanying documentation necessary to operate the financial model) in the Agreed Form;

“Bebington” means Bebington High School;

“Bebington Asset Register” means the asset register to be compiled by Project Co pursuant to Clause 22.18 (Asset Registers);

“Bebington Headlease” means the lease between the Authority and Project Co substantially in the form set out in Part 1 (Bebington Headlease) of Schedule 1 (Land);

“Bebington Site” means the land identified in the Bebington Headlease and shown edged red on Plan B;

“Benchmarked Price” has the meaning given in paragraph 2.4 of Part 8 (Value for Money Testing) of Schedule 4 (Payments);

“Benchmarking” means subjecting a Support Service to the market price comparison procedure set out in Part 8 (Value for Money Testing) of Schedule 4 (Payments) with the aim of ensuring that the Support Service being tested is provided

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Continues at 38 more pages of the Wirral Schools Services Limited private finance initiative (PFI) contract with Wirral Council.

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