The first 17 pages of Wirral Council’s contract with Wirral Schools Services Limited

                           

Edited 13/11/2014 to correct “Wirral School Services Limited” to “Wirral Schools Services Limited”.

Below is the first 17 A4 pages of Wirral Council’s contract with Wirral Schools Services Limited. I requested it as part of the 2013/14 audit. Sadly it’s so long I’ll probably just have to scan the rest of it in or OCR it.

There are a further 114 pages in this section.

Private & Confidential

Dated 9th September 2004

WIRRAL BOROUGH COUNCIL (1)
WIRRAL SCHOOLS SERVICES LIMITED (2)

===================================================================================================================
DEED OF AMENDMENT AND RESTATEMENT relating to Wirral Schools PFI Project
===================================================================================================================

ADDLESHAW GODDARD

Contents
Clause Page

1 Interpretation ......................................... 1
2 Effective Date ......................................... 1
3 Amendment and restatement .............................. 2
4 Confirmation ........................................... 2
5 Variations, amendments and payments .................... 2
6 Release by the Authority ............................... 4
7 Release by Project Co .................................. 4
8 Governing law and dispute resolution ................... 4

Schedule

1. Conditions ............................................ 5
   Part 1 - Conditions to be satisfied by Project Co ..... 5
   Part 2 - Conditions to be satisfied by the Authority .. 6
2 Amendments to the Project Agreement .................... 7
3 Details of Variations referred to in clause 5.1 ........ 8
4 Schedule of Payments referred to in clause 5.2(b) ...... 9
5 Outstanding items ..................................... 10

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This Deed of Amendment and Restatement is made on the 9th day of September 2004

Between

(1) Wirral Borough Council of Town Hall, Brighton Street, Wallasey, Wirral, Merseyside CH44 8ED (Authority); and (signature)

(2) Wirral Schools Services Limited, a company incorporated under the laws of England and Wales with registered number 4115637 whose registered office is at Frogmore Park, Walton-at-Stowe, Hertford SG14 3RU (Project Co).

Whereas

(A) The Authority has appointed Project Co under an agreement dated 27 March 2001 (Project Agreement) to finance, design and construct and to provide certain services in respect of certain schools in Wirral.

(B) The Authority and Project Co have agreed to vary the Project Agreement in the manner hereinafter appearing and to agree certain variations to the Project as hereinafter described.

It is agreed

1 Interpretation

1.1 In this Deed, but save as provided for by clause 1.2, the following expressions shall bear the following meanings:

D&B Deed of Amendment and Restatement means a deed of that name (or about) the same date as this Deed between Project Co and the D&B Contractor amending and restating the D&B Contract

Effective Date means the date upon which the parties confirm to each other in writing pursuant to clause 2.1 that the conditions set out in schedule 1 have been satisfied or waived

Revised Base Case Financial Model means the revision of the Base Case Financial Model as at the Effective Date in the Agreed Form

Subcontract Deeds of Amendment and Restatement means:

(a) the D&B Deed of Amendment and Restatement; and
(b) the Support Services Deed of Amendment and Restatement

Support Services Deed of Amendment and Restatement means a deed of that name of (or about) the same date as this Deed between Project Co and the Support Services Manager amending and restating the Support Services Management Agreement

1.2 Unless stated to the contrary in this Deed, words and phrases used in this Deed with initial capital letters but not defined herein shall have the meanings ascribed to them in the Project Agreement.

1.3 Unless stated to the contrary, references in this Deed to any clause or schedule or appendix are references to such clause or schedule or appendix of or to this Deed.

1.4 Words importing the single number only include the plural number and vice versa.

2 Effective Date

2.1 The provisions of clauses 3, 5 (save for the acknowledgements set out in clauses 5.2(b) and 5.2(d)), 6 and 7 shall have no effect unless and until:

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(a) the Authority shall have confirmed in writing to Project Co that all of the conditions set out in part 1 of schedule 1 shall have been satisfied or waived; and

(b) Project Co shall have confirmed in writing to the Authority that all of the conditions set out in part 2 of schedule 1 shall have been satisfied or waived.

2.2 Each of the Authority and Project Co shall use their respective best endeavours to procure that the conditions set out in clause 2.1 are satisfied as soon as reasonably practicable following the date of this Deed, provided always that, if the Effective Date has not occurred on or before 31 August 24 September 2004, either party shall be entitled to terminate this Deed at any time thereafter upon giving written notice to the other party. (signature)

2.3 Without prejudice to any antecedent breaches of this Deed, if either party terminates this Deed pursuant to clause 2.2 then the Authority shall be entitled to recover in full from Project Co within 5 Working Days of the date of receipt of any notice served pursuant to clause 2.2 the amounts paid by the Authority to Project Co in connection with this Deed prior to the date of termination as set out in clause 5.2 and neither party shall be entitled to bring any claim against the other party as a result of such termination.

2.4 The Authority shall, within 10 Working Days after the Effective Date, deliver to Project Co a duly executed certificate issued pursuant to the Local Government (Contracts) Act 1997 in relation to this Deed.

2.5 Project Co shall procure the delivery by Liberty Mutual Insurance Company (UK) Limited, within 10 Working Days after the Effective Date, of written confirmation of its consent to the D&B Deed of Amendment and Restatement and that the D&B Performance Bond and Retention Bond (in each case, as defined in the D&B Contract) remain effective.

3 Amendment and restatement

With effect from the Effective Date the Project Agreement shall be amended and restated so as to give effect to the amendments set out in schedule 2. The parties agree that the amendments to the Project Agreement and Schedules set out in schedule 2 constitute the only pages of the Project Agreement and Schedules where changes to the text have been agreed between the parties.

4 Confirmation

The parties confirm that the Project Agreement remains in full force and effect save as amended by this Deed.

5 Variations, amendments and payments

5.1 The parties agree that:

(a) as a result of the matters contained in or referred to in this Deed, namely the carrying out of works by Project Co (whether before or after the Effective Date):

(i) required to be undertaken for the removal of Asbestos at the Facilities within the period prior to the last Actual Date of Completion to occur; and

(ii) as a result of Variations instructed and/or requested in writing by the Authority pursuant to Clause 32 of the Project Agreement up to and including 7 June 2004,

the Design and Build Periods in respect of the Sites have been extended as set out in Part 3 of Schedule 3 to the Project Agreement (as amended and restated in accordance with this Deed); and

(b) without prejudice to the Authority’s entitlement to request Variations pursuant to the Project Agreement, Project Co shall carry out such variations to the Works as are nominated by the Authority in its discretion up to (but not exceeding) the value of

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£115,000 (unindexed) which variations Project Co shall carry out and complete at no cost to the Authority; and

(c) Project Co shall shall carry out and complete the Variations set out in schedule 3 to this Deed by the respective dates set out against each such Variation in schedule 3 (and, to avoid doubt, such Variations shall be carried out and completed at no additional cost to the Authority),

provided always that:

(i) the Authority shall be fully responsible for any planning or judicial review risk associated with the carrying out of any Variation referred to in this clause 5.1(c); and

(ii) the Authority shall be entitled to deduct liquidated and ascertained damages (LADs) from the Services Contract Payment at a rate of £55 per Variation for each day in excess of the relevant Completion Date for which any Variation as referred to in this clause 5.1(c) is not complete.

5.2

(a) The parties acknowledge and agree that there is a difference between the Services Contract Payment set out in Part 4 of Schedule 5 to the Project Agreement and the Services Contract Payment set out in the Base Case Financial Model. In order to rectify this difference and by way of full and final settlement of the costs and expenses incurred or to be incurred by Project Co as a result of the implementation of variation works including the change in building design at Leasowe Primary and the implementation (whether before or after the Effective Date) of works to deal with Asbestos discovered in the Facilities within the period prior to the last Actual Date of Completion to occur (in accordance with Clause 16.4 of and Schedule 15 to the Project Agreement), the Authority has agreed to:

(i) change the Expiry Date to 31 July 2031 in order to enable Project Co to raise additional finance (provided always that the amount of principal taken into account in calculating Senior Debt (as shown in the Revised Base Case Financial Model) shall not increase by more than £3,000,000.00, compared with the amount of principal shown for the same date in the Base Case Financial Model, by reason of the raising of such additional finance); and

(ii) pay to Project Co the sum of £3,340,000.00, such sum to be paid in accordance with the remainder of this clause 5.2.

(b) The parties acknowledge that, of the sum referred to in clause 5.2(a)(ii), the sum of £1,800,000.00 has been paid by the Authority to Project Co (and Project Co acknowledges that it has received such amount from the Authority). The remaining sum of £1,540,000.00 shall be due and payable by the Authority to Project Co in the sums and on the dates set out in schedule 4.

(c) Project Co shall submit a valid VAT invoice to the Authority in respect of each of the amounts referred to in clause 5.2(b).

(d) Project Co acknowledges that it has received a payment of £1,186,618.10 (inclusive of VAT) from the Authority in relation to certain costs incurred by Project Co in removing Asbestos. The parties agree that a further sum of £35,000 (which represents the VAT element outstanding on a £200,000 payment on account made by the Authority) remains to be paid by the Authority to Project Co and that the Authority shall pay such amount to Project Co within 30 days of receipt of a valid VAT invoice in respect of the same.

(e) The parties agree to procure that Schedule 4 to the Project Agreement shall, not later than the last Actual Date of Completion to occur, be revised to reflect any changes to the drawings or accommodation schedules as may be necessary, whether arising

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pursuant to this Deed or otherwise, but provided always that any such revision shall not result in any increase to the Services Contract Payment as set out in the Base Case Financial Model.

(f) and (g) – please see continuation sheet overleaf (signature)

Outstanding items

5.3 In consideration of receipt of the amounts referred to in clause 5.2, Project Co shall carry out and complete the works set out in schedule 5 (“Outstanding Items“) and, to avoid doubt, Project Co shall not be entitled to any additional payment in respect of such works.

6 Release by the Authority

6.1 On and with effect from the Effective Date:

(a) the Authority irrevocably waives and releases to Project Co any claim or Losses it may have or which may have arisen consequent upon any breach or alleged breach of any obligation of Project Co contained in the Project Agreement arising prior to the Effective Date in connection with the matters referred to in clause 5.1(a) including without limitation in relation to the issue of any Non-Completion Certificate; and

(b) the Authority irrevocably and unconditionally provides its consent, insofar as such consent may be necessary or required to be given under the Project Agreement, to any matters contained in or referred to in this Deed.

7 Release by Project Co

7.1 On and with effect from the Effective Date Project Co irrevocably waives and releases to the Authority any claim or Losses it may have or which may have arisen consequent upon any breach or alleged breach of any obligation of the Authority contained in the Project Agreement arising prior to the Effective Date in connection with the matters referred to in clause 5.1(a) including without limitation to the issue of any Non-Completion Certificate. Without prejudice to the foregoing, Project Co acknowledges that:

(a) the amendment to the Expiry Date referred to in clause 5.2(a)(i);

(b) the payment of the financial amounts shown in clause 5.2; and

(c) the amendments made to the Schedule of Key Dates referred to in clause 5.1(a),

shall constitute Project Co’s sole compensation in respect of the matters contained within this Deed, including without limitation any claim against the Authority under Clause 16.4 of the Project Agreement or otherwise for costs, expenses, losses, prolongation or disruption expenses or loss of profit arising from any works (whether such works are carried out before or after the Effective Date) required to deal with Asbestos discovered at the Facilities within the period prior to the last Actual Date of Completion to occur.

8 Governing law and dispute resolution

8.1 The law of this Deed is English law.

8.2 Any dispute arising out of or in connection with this Deed shall be resolved in accordance with the procedure set out in Clause 49 (Dispute Resolution Procedure) of the Project Agreement. Subject as aforesaid, the parties agree that the courts of England and Wales shall have exclusive jurisdiction to hear and settle any action, suit, proceeding or dispute in connection with this Deed and irrevocably submit to the jurisdiction of those courts.

In Witness the parties have caused this Deed to be duly executed on the date set out above.

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(f) The parties acknowledge that the extension to the Contract Term hereby agreed (the “Contract Extension“) will enable Project co to raise additional funding to facilitate Project Co’s performance of its obligations under the Project Agreement and this Deed, and the Authority agrees that on the occasion of the first financing of the Contract Extension (whether or not the Contract Extension is financed for the first time as part of a Refinancing (as that term is defined in clause 4.1 of the Project Agreement) or otherwise) all sums thereby raised up to (but not exceeding) the sum of three million pounds (£3,000,000.00) and arising solely out of the Contract Extension shall accrue solely to Project Co provided that (for the avoidance of doubt) that parties hereto agree that on any Refinancing (as that term is defined in clause 4.1 of the Project Agreement) taking place after the first financing of the Contract Extension as aforesaid the provisions of clause 4.1 of and Schedule 2 Part 8 (Rules for Refinancing) to the Project Agreement shall apply in full to the Contract Term as hereby extended.

(g) For the purposes of clause 4.1 of the Project Agreement, the Authority hereby grants its consent to the first financing of the Contract Extension (but not further or otherwise). (signature)

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Schedule 1
Conditions
Part 1 – Conditions to be satisfied by Project Co

Delivery by Project Co to the Authority of the documents listed below in form and substance satisfactory to the Authority. Where listed as a duly certified copy, the document must be certified by a director or the secretary of Project Co as being a true copy:

1. A copy, duly certified, of minutes of a meeting of the board of directors of Project Co evidencing:

(a) consideration by the directors of:

(i) a final draft of this Deed and the Subcontract Deeds of Amendment and Restatement;

(ii) Project Co’s rights and obligations under this Deed and the Subcontract Deeds of Amendment and Restatement; and

(iii) any limit or restriction on any of Project Co’s powers or any limit or restriction on the rights or ability of the directors to exercise any of Project Co’s powers; and

(b) a resolution of the board of directors approving the execution, delivery and performance by Project Co of this Deed and the Subcontract Deeds of Amendment and Restatement and authorising a specific person or persons to execute and deliver this Deed and the Subcontract Deeds of Amendment and Restatement and sign and despatch all notices and other communications required or permitted to be given by Project Co under this Deed and the Subcontract Deeds of Amendment and Restatement.

2. A specimen of the signature of each person authorised by Project Co to execute this Deed and the Subcontract Deeds of Amendment and Restatement and to sign and despatch all notices and other communications required or permitted to be given by Project Co thereunder.

3. A copy, duly certified, of each of this Deed and the Subcontract Deeds of Amendment and Restatement.

4. The Revised Base Case Financial Model.

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Part 2 – Conditions to be satisfied by the Authority

Delivery by the Authority to Project Co of the documents listed below all in form and substance satisfactory to Project Co:

1. Copies of such (if any) of the Direct Agreements as may be required by the Lenders to be executed by the Authority, executed by the Authority (but not, for the avoidance of doubt, the other parties to the Direct Agreements); and

2. Certified copies of the appropriate minute of the Authority which evidences the delegated authority of the officer signing this Deed.

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Schedule 2
Amendments to the Project Agreement

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CONFORMED COPY

DATED       27 March 2001

(1) WIRRAL BOROUGH COUNCIL

(2) WIRRAL SCHO OLSSCHOOLS SERVICES LIMITED

(signature)

===================================================================================================================

PROJECT AGREEMENT

Amended and Restated pursuant to a Deed of Amendment and Restatement dated 9th September 2004

===================================================================================================================

ROWE & MAW
20 Black Friars Lane
London EC4V 6HD

Tel: 020 7248 4282
Fax: 020 7248 2009

Ref: 617/343/476/27909.1

CONTENTS

CLAUSE SUBJECT MATTER PAGE

1. Definitions and Interpretation 2
2. Conditions Precedent 4344
3. Ancillary Documents 4647
4. Funding Arrangements, Direct Agreements, Guarantees and Prohibition on Diversification 4748
5. Term 5051
6. Planning 5051
7. Works 5657
8. Project Programme and Extensions of Time 5961
9. Design Development 6264
10. Standards of Design and Workmanship 6364
11. D & B Contract 6365
12. Decant Programme 6465
13. Care of the Sites and Reinstatement 6466
14. Inspection and Completion 6567
15. CDM Regulations 6870
16. Defects 6971
17. Fossils and Antiquities 7072
18. Services and Phase-in 7274
19. Maintenance 7678
20. Utility Services and Catering 8284
21. Value for Money Testing and Best Value 8587
22. Equipment and Materials 8789
23. Payments to Project Co 9395
24. Performance Regime 98100
25. Provisions Relating to Land 101103
26. Authority Access 103105
27. Site Licences and Leases 104106
28. Obligations of Project Co in Respect of the Sites and the Authority’s Obligations in Respect of Land 107109
29. Rates, Taxes and Outgoings 109111
30. Quality Assurance 110112
31. Reports and Records 112114
32. Variations 117119
33. Change in Law 130132
34. Indemnity and Liability Limitation 132134
35. Environmental Liability 138140
36. Insurance 139141
37. Events of Default and Termination 146148
38. Compensation on Termination 151153
39. Consequential Arrangements on Termination 155157
40. Representatives 159161
41. Sub-Contracting 161163

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42. Assignment 162164
43. Change of Control 163165
44. Force Majeure 164166
45. Warranties and Disclaimers 166168
46. Employees 161171
47. Intellectual Property and Data 179181
48. Confidentiality and Publicity 181183
49. Disputes 185187
50. Agency 185187
51. Personal Data 186188
52. Corrupt Gifts and Payments of Compensation 188190
53. Health and Safety, Site Rules and Occupiers Liability 190192
54. Miscellaneous 192194
55. Governing Law and Jurisdiction 196198

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INDEX OF SCHEDULES

SCHEDULE HEADING
SCHEDULE 1 LAND
Part 1 Bebington Headlease
Part 2 Hilbre Headlease
Part 3 Park High Headlease
Part 4 Prenton High Headlease
Part 5 South Wirral High Headlease
Part 6 Wallasey Headlease
Part 7 Not used
Part 8 Weatherhead Headlease
Part 9 Wirral Girls Headlease
Part 10 Bebington Underlease
Part 11 Hilbre Underlease
Part 12 Park High Underlease
Part 13 Prenton High Underlease
Part 14 South Wirral High Underlease
Part 15 Wallasey Underlease
Part 16 Not used
Part 17 Weatherhead Underlease
Part 18 Wirral Girls Underlease
Part 19 Plans

SCHEDULE 2 FINANCIAL MATTERS
Part 1 Lenders’ Direct Agreement
Part 2 The Council’s Design and Building Contract Direct Agreement
Part 3 The Council’s Support Services Management Direct Agreement
Part 4 Design and Building Contract Performance Guarantee
Part 5 Support Services Management Agreement Performance Guarantee
Part 6 Initial Senior Funding Agreements
Part 7 Other Initial Funding Agreements
Part 8 Rules for Refinancing

SCHEDULE 3 WORKS

Part 1 Design Development Procedure
Part 2 Prohibited Materials

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Part 3 Schedule of Key Dates
Part 4 Outline Design Documents
Part 5 The Completion Standards
Part 6 Decant Programme Methodology
Appendix 1 Decant Programme: Park High
Appendix 2 Decant: Further Obligations
Part 7 Handback Requirements
Part 8 Project Programme
Part 9 Construction Site Rules
Part 10 Handback Survey
SCHEDULE 4 PAYMENTS
Part 1 Definitions
Part 2 Services Contract Payment
Part 3 Performance Deduction Look-up Table
Part 4 Table of Service Units per School
Part 5 Monitoring
Part 6 Utility Services
Part 7 Third Part Use
Part 7A Catering
Part 8 Value for Money Testing
Appendix 1 Form of Performance and Payment Report
SCHEDULE 5 ACCOMMODATION SERVICES OUTPUT SPECIFICATION
SCHEDULE 6 SUPPORT SERVICES OUTPUT SPECIFICATION
Part 1 Building and Asset Maintenance Output Specification
Part 2 Support Service Requirements and Performance Tables
Part 3 Service Level Agreements
Part 4 Service Level Agreements Alteration Procedure
SCHEDULE 7 REPORTS AND RECORDS
Part 1 Reports
Part 2 Records
SCHEDULE 8 VARIATION
Variation Notice
SCHEDULE 9 INSURANCE
Part 1 The Part I Insurance Period

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Part 2 The Part 2 Insurance Period
Appendix 1 Endorsements
Appendix 2 Broker’s Letter of Undertaking
Appendix 3 Business Interruption Insurance – the Authority’s Obligations as Insurer
Appendix 4 Schedule of Insured Parties
SCHEDULE 10 LIAISON COMMITTEE
SCHEDULE 11 COMPENSATION ON TERMINATION
Part 1 Definitions
Part 2 Project Co Default
Part 3 Authority Default
Part 4 Notice by the Authority
Part 5 Force Majeure, Uninsurability and Planning Challenge
Part 6 Corrupt Gifts
SCHEDULE 12 DISPUTE RESOLUTION
SCHEDULE 13 SENIOR REPRESENTATIVES
SCHEDULE 14 COMPENSATION EVENTS
SCHEDULE 15 METHODOLOGY FOR ASBESTOS
Appendix 1 MB Wirral Policy
Appendix 2 Asbestos Survey Risk Assessment
SCHEDULE 16 LIQUIDATED DAMAGES
SCHEDULE 17 QUALITY SYSTEMS
Part 1 Design and Build Period Quality System
Part 2 Operational Period Quality System
Appendix A Quality Policy
Appendix B Certificate of Approval
Appendix C Proposed QA Implementation Plan
Appendix D Contact Directory
Appendix E Local Procedures
SCHEDULE 18 EMPLOYEES
Part 1 Employee Information
Part 2 Terms and Conditions of Employment
SCHEDULE 19 ADMISSION AGREEMENTS AND BONDS
Part 1 Jarvis Workspace FM Limited
Part 2 Compass Group PLC

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Part 3 MTL Commercial Limited
SCHEDULE 20 STAFF SECURITY PROTOCOL
SCHEDULE 21 OPERATIONAL SITE RULES
SCHEDULE 22 DRAFT TRANSITIONAL SERVICES AGREEMENT
SCHEDULE 23 CITY LEARNING CENTRE
SCHEDULE 24 NEW MOVEABLE EQUIPMENT SCHEDULE OF RATES

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

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