18 more pages of the Wirral Council Schools PFI contract including the Bebington High headlease

18 more pages of the Wirral Council Schools PFI contract including the Bebington High headlease

18 more pages of the Wirral Council Schools PFI contract including the Bebington High headlease

                                                  

Wirral Council has a Schools PFI contract with Wirral Schools Services Limited. The contract is very long, too long to fit in one blog post.

The first 17 pages of the contract have been previously published here, followed by the next 6 pages and the next 38 pages of the mammoth contract here.

What I scanned in today was part of one of the schedules about land. Included below is the Bebington headlease along with the index page for the schedules.

Wirral Borough Council Wirral Schools Services Limited PFI contract cover page
Wirral Borough Council Wirral Schools Services Limited PFI contract cover page

CONFORMED COPY

(1) WIRRAL BOROUGH COUNCIL

(2) WIRRAL SCHOOLS SERVICES LIMITED


SCHEDULES VOLUME 1

(SCHEDULES 1-3)


Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 1 (Land) to Schedule 3 (Works) page 1 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 1 (Land) to Schedule 3 (Works) page 1 of 4

CONFORMED COPY

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 Lender’s 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
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 3 (Works) to Schedule 9 (Insurance) page 2 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 3 (Works) to Schedule 9 (Insurance) page 2 of 4
Part 2 Prohibited Materials
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 Party Use
Part 7A Catering
Part 8 Value for Money Testing
Appendix 1 Form of Performance and Payment Report
SCHEDULE 5 ACCOMMODATION SERVICES OUTPUT SPECIFICATIONS
SCHEDULE 6 SUPPORT SERVICES OUTPUT SPECIFICATIONS
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 VARIATIONS
Variation Notice
SCHEDULE 9 INSURANCE
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 9 (Insurance) to Schedule 19 (Admission Agreements and Bonds)  page 3 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 9 (Insurance) to Schedule 19 (Admission Agreements and Bonds) page 3 of 4
Part 1 The Part 1 Insurance Period
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
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 19 (Admission Agreements and Bonds) to Schedule 24 (New Moveable Equipment Schedule of Rates)  page 4 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 19 (Admission Agreements and Bonds) to Schedule 24 (New Moveable Equipment Schedule of Rates) page 4 of 4
Part 2 Compass Group PLC
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
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 1 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 1 of 13

SCHEDULE 1

LAND

Part 1

Bebington Headlease

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 2 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 2 of 13

DATED                2001


(1) WIRRAL BOROUGH COUNCIL

(2) WIRRAL SCHOOLS SERVICES LIMITED


HEADLEASE

-of-

Bebington High School, Bebington Road

Bebington, Merseyside


THIS LEASE IS A NEW TENANCY FOR THE

PURPOSES OF THE LANDLORD AND TENANT

(COVENANTS) ACT 1995

ROWE & MAW

20 Black Friars Lane

London EC4V 6HD

Tel: 020 7248 4282

Fax: 020 7248 2009

Ref: 709/476/27909.00001

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 3 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 3 of 13

CONTENTS

Clause Subject Matter Page
     
1. Definitions and Interpretation 4
2. Demise and Rents 6
3. Tenant’s Covenants 6
4. Landlord’s Covenants 8
5. Agreements and Declarations 8
6. New Tenancy 9
Schedule 1 (The Premises)
Schedule 2 (Easements and Rights granted)
Schedule 3 (Rights excepted and reserved)
Schedule 4 (The documents (if any) containing incumbrances to which the Premises are subject)
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 4 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 4 of 13

THIS LEASE made the        day of        2001

BETWEEN:

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

WIRRAL SCHOOLS SERVICES LIMITED having its registered office at Frogmore Park, Watton-at-Stone, Hertfordshire SG14 3RU (registration number 4115637) (the “Tenant”).

WITNESSES as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this lease the following expressions have the respective specified meanings (subject to any particular interpretation required by clause 1.2):

“Adjoining Premises” means any land or buildings neighbouring or adjoining or adjacent to the Premises;

“Buildings” means the buildings now or hereafter during the Term at the Premises and “Building” means any one of them;

“Permitted Use” means use of the Premises to comply with the obligations and exercise the rights of the Tenant under the Project Agreement;

“Perpetuity Period” means the period of eighty years from the date hereof which is the perpetuity period applicable to this lease;

“Plan” means the plan attached hereto;

“Premises” means the Premises described in Schedule 1;

“Project Agreement” means the agreement entitled Project Agreement made between (1) the Landlord and (2) the Tenant dated                              and as varied from time to time under Clause 32 thereof or supplemented or any other agreement superseding that agreement or substituted for that agreement and in either case expressed to be made subsequent to it;

“Rent” means a peppercorn, if demanded, per annum;

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 5 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 5 of 13

“Service Media” means all sewers drains pipes gullies gutters ducts mains channels wires cables conduits flues and any other conducting media;

“Services” means soil water electricity gas compressed air telecommunications signals and other liquids gasses or signals capable of passing along or through Service Media; and

“Term” means a term of 30 years from and including the date hereof subject to the provisions for the prior determination of the Term hereinafter contained;

1.2 Interpretation

(1) Words importing the singular include the plural and vice versa and words importing one gender shall include both genders.

(2) Where a party comprises more than one person covenants and obligations of that party take effect as joint and several covenants and obligations.

(3) A covenant by the Tenant not to do (or omit) any act or thing also operates as a covenant not knowingly to permit or suffer it to be done (or omitted) and to prevent (or as the case may be to require) it being done.

(4) References in this lease to:

(a) any clause sub-clause schedule or paragraph is a reference to the relevant clause sub-clause schedule or paragraph of this lease and clause and schedule headings shall not affect the construction of this lease;

(b) the Premises shall be construed as extending to any part of the Premises and shall include all and each and every part of any:

(i) Buildings from time to time thereon;

(ii) Service Media within the Premises and exclusively serving the Premises;

(iii) additions alterations and improvements thereto; and

(iv) Landlord’s fixtures and fittings therein;

(c) any statute (whether generally or specifically) shall include all derivative instruments orders regulations and in each case any re-enactment or modification thereof from time to time.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 6 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 6 of 13

2. DEMISE AND RENTS

Subject to compliance by the Tenant with its obligations under the Project Agreement the Landlord DEMISES unto the Tenant ALL THAT the Premises TOGETHER WITH the easements and rights (in common with the Landlord and all others with its authority or otherwise from time to time entitled thereto) specified in Schedule 2 which shall enure for the benefit of the Tenant and all those expressly authorised by the Tenant EXCEPT AND RESERVING to the Landlord and all other persons from time to time entitled to the rights mentioned in Schedule 3 TO HOLD the Premises unto the Tenant for the Term SUBJECT to:

(a) the provisions contained or referred to and rights granted to any party in the documents specified in schedule 4 insofar as they relate to the Premises;

YIELDING AND PAYING therefor during the Term to the Landlord the Rent payable annually in advance the first payments being made on the date hereof.

3. TENANT’S COVENANTS

The Tenant COVENANTS with the Landlord:

3.1 Pay rent

To pay the Rent without deduction set-off or counterclaim at the times and in the manner aforesaid.

3.2 Use

Not to use the Premises for anything other than the Permitted Use.

3.3 Easements

(1) Not to obstruct any window or light or abandon any easements from time to time enjoyed by the Premises.

(2) To give immediate written notice to the Landlord of any encroachment on or circumstances which might result in the acquisition of any easement or other right over the Premises and at the Tenant’s expense to take or join in such proceedings or take such other steps as the Landlord may require to prevent any such acquisition.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 7 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 7 of 13

3.4 Incumbrances

To comply with all covenants and other matters relating to the Premises (and in particular those contained or referred to in the documents specified in schedule 4) so far as they are enforceable and still subsisting.

3.5 Alienation

(a) The Tenant shall not assign, underlet, charge, hold on trust for another, part with or share possession or occupation of the whole or any part or parts of the Premises except as may be permitted or required by this lease. For the avoidance of doubt, nothing in this Clause 3.5(a) shall prevent the Tenant from charging the whole of the Premises in favour of any person providing funding under the Funding Agreement (as defined in the Project Agreement) from time to time.

(b) Notwithstanding the terms of Clause 3.5(a) the Tenant must assign the whole of the lease to a permitted assignee of the Tenant’s interest under the Project Agreement, such assignment of this lease to take place simultaneously with the assignment of the Project Agreement.

(c) The Tenant shall not underlet any part or the whole of the Premises without the consent of the Landlord save that the Tenant shall be permitted to grant an underlease of the whole of the Premises to the Landlord on the date hereof in the form of the underlease annexed to the Project Agreement.

3.6 Overriding lease

If at any time during the Term the Landlord shall grant a tenancy of the reversion immediately expectant on the determination of this lease whether persuant to section 19 Landlord and Tenant (Covenants) Act 1995 or otherwise any covenant on the part of the Tenant to obtain the consent of the Landlord under this lease to any dealing shall be deemed to include a further covenant also to obtain the consent of the lessor under such tenancy to such dealing.

3.7 Permit Entry

To permit the Landlord and any others authorised by the Landlord to enter the Premises on reasonable notice at reasonable times (except in emergency) to ascertain that the covenants on the part of the Tenant in this lease are being observed and performed and to enable the Landlord to exercise his rights or fulfil its obligations

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 8 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 8 of 13

under the Project Agreement subject to complying with the obligations of the Landlord under the Project Agreement.

3.8 Project Agreement

The parties to this lease agree that where the provisions of this lease and the Project Agreement conflict, the terms of the Project Agreement shall prevail.

4. LANDLORD’s COVENANT

The Landlord covenants with the Tenant that the Tenant paying the rents and complying with its obligations under this lease and the Project Agreement may peaceably hold and enjoy the Premises during the Term without any interruption by the Landlord or any person lawfully claiming through under or in trust for it.

  1. AGREEMENTS AND DECLARATIONS

PROVIDED ALWAYS AND IT IS AGREED AND DECLARED

5.1 Exclusions

(1) The Tenant shall not have the benefit of any easement right or privilege other than those expressly hereby granted.

(2) Any rights granted or reserved by this lease in respect of anything which does exist at the date hereof shall be effective only if it comes into existence before the expiry of the Perpetuity Period.

(3) The Landlord gives no express or implied warranty that the Permitted Use will be or remain a lawful or authorised use under the Planning Acts or otherwise.

(4) So far as the law shall allow the right of the Tenant (or any undertenant) to compensation on quitting the Premises is excluded.

5.2 Notices

Clause 54.10 of the Project Agreement shall apply in respect of any notices or other communications served or required to be served hereunder.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 9 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 9 of 13

5.3 Termination

If the Project Agreement is terminated for any reason or expires the Term shall automatically determine without notice but without prejudice to any claim by one party in respect of any antecedent breach of any obligation of the other under this lease.

5.4 Exclusion of Landlord and Tenant Act 1954

Having been authorised to do so by an order of the            Court made on            under section 38(4) of the Landlord and Tenant Act 1954 (as amended) the parties agree that the provisions of sections 24 to 28 inclusive of the Landlord and Tenant Act 1954 (as amended) shall be excluded in relation to the tenancy hereby created.

  1. NEW TENANCY

This lease is a new tenancy for the purposes of the Landlord and Tenant (Covenants) Act 1995.

IN WITNESS whereof this lease has been duly executed as a deed (but not delivered until) the day and year first above written.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 10 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 10 of 13

SCHEDULE 1

(The Premises)

The land and buildings and structures known as Bebington High School Higher Bebington Road Bebington Merseyside shown for the purpose of identification only edged in red on the Plan.

SCHEDULE 2

(Easements and Rights granted)

1. Subject to the Tenant not interfering with any rights granted to any tenant under any lease existing at the Execution Date full right and liberty at any time at the cost of the Tenant to divert (both to the whole and any part of it) the route of any Service Media which the Landlord has the right to use pursuant to Schedule 3 of this Lease whether temporarily or permanently provided that:-

1.1 the Tenant shall give reasonable prior written notice of any such diversion to the Landlord and any other person so entitled;

1.2 all works of diversion shall be carried out in a proper and workmanlike manner in accordance with good practice current at the time and with good quality suitable and sufficient materials as to provide the Landlord and any other person so entitled with Service Media of at least equivalent size quality and capacity to those with are being diverted;

1.3 so far as possible the passage or running of the Services through such Service Media shall not be disrupted and the Tenant will provide temporary arrangements during any period of diversion of permanent Service Media.

2. A right to build upon and to demolish maintain repair replace and renew any buildings upon the Premises to enable the Tenant to comply with or perform its obligations and exercise its rights under the Project Agreement.

3. A right of support and shelter for the Premises from any Adjoining Premises owned by the Landlord.

4. A right (subject to the provisions of paragraph 1 of this Schedule) to the free and uninterrupted passage and running of all services from and to the Premises through and

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 11 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 11 of 13

along all Service Media from time to time within but not exclusively serving any Adjoining Premises.

SCHEDULE 3

(Rights excepted and reserved)

1. A right for the Landlord and all those authorised by the Landlord to enter upon the Premises for the purpose of fulfilling any obligations on the part of the Landlord pursuant to the Project Agreement and for all purposes mentioned in this lease but subject to complying with the obligations of the Landlord in the Project Agreement.

2. A right (subject to the provisions of paragraph 1 of Schedule 2 of this Lease) to the free and uninterrupted passage and running of all services from and to any Adjoining Premises through and along all Service Media from time to time within but not exclusively serving the Premises.

3. A right for the Landlord and all those authorised by the Landlord to enter those parts of the Premises which are not built upon at all reasonable times (having regard to the Tenant’s obligations under the Project Agreement) on giving reasonable notice (except in emergency) and the right to inspect construct lay maintain repair replace alter or renew any Service Media and to make connections to any Service Media within the Premises the person exercising this right doing as little damage and causing as little inconvenience as possible and making good any damage to the Premises thereby occasioned and carrying out all works in a proper and workmanlike manner in accordance with good practice current at the time and with good quality suitable and sufficient materials and at no time shall the exercise of the Landlord’s rights under this paragraph 3 interfere with the Tenant’s obligations under the Project Agreement.

4. All rights of light or air now subsisting or which might (but for this exception) be acquired over any other land.

5. A right to build upon and demolish maintain repair replace and renew any buildings upon any part of any Adjoining Premises owned by the Landlord and any other land owned by the Landlord in such manner as the Landlord may think fit.

6. A right of support and shelter from the Premises for any Adjoining Premises owned by the Landlord.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 12 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 12 of 13

Schedule 4

(The documents containing incumbrances to which the Premises are subject)

The rights, reservations, covenants and other matters referred to in the Registers of Title Number MS435412.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 13 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 13 of 13

THE COMMON SEAL of WIRRAL )
BOROUGH COUNCIL )
was affixed to this Deed in the )
presence of
: )

…………………………………….
As authorised officer

THE COMMON SEAL of WIRRAL )
SCHOOL SERVICES LIMITED )
was hereunto affixed in the presence of:)

Director

Director/Secretary

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

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

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:

RMLIB01 #659790 v14 03/04/2001 15:25

(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;

RMLIB01 #659790 v14 03/04/2001 15:25

3

(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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4

“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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