Dated 2015
AGREEMENT FOR LEASE WITH WORKS
relating to
Main Site Dreamland Heritage Amusement Centre
Marine Terrace Margate Kent
THANET DISTRICT COUNCIL
and
SANDS HERITAGE LIMITED
Doc No.8744735.7
Contents Page
1Definitions and interpretation
1.1Definitions
1.2Interpretation
2Requisite consents
2.1Application for Requisite Consents
2.2Appeal against refusal
2.3Landlord to give Tenant copies
2.4Qualified or conditional consents
3Landlord’s Works
3.1Execution of works
3.2Outstanding Landlord’s Works
3.3Standard of works
3.4Variations
3.5Materials may be substituted
3.6Variations to Landlord’s Works
3.7Japanese Knotweed Management Programme
3.8Meaning of Landlord in this clause
4CDM Regulations
4.1Application of this clause
4.2Election as only client
4.3Fulfilment of duties as client
4.4Records
5Variations to the Landlord’s Works
5.1No variations without consent
5.2Variations required by law
5.3Substituted materials
5.4Notification of variations
6Practical completion
6.1Notice of inspection
6.2No fetter on discretion
6.3Issue of certificates
6.4Rectification
6.5Tenant's Representations
6.6Issue of Certificate of Making Good
7Tenant’s Extras
7.1Tenant’s Extras - meaning
7.2Tenant’s request
7.3Payment for Tenant’s Extras
7.4Construction Industry Scheme
8Insurance
9Tenant's Works and early access licence
9.1Schedule 3 applies
9.2Occupation licence
9.3Further occupation licence
9.4Tenant’s obligations pending grant
9.5Covenant to vacate if licence ends
10Completion of Lease
10.1Agreement to grant and accept
10.2Engrossments and execution
10.3Completion: location and timing
10.4Term and rent commencement
10.5Service charge and insurance rent - commencement
11Condition surveys
11.1Landlord's Works
11.2Tenant's Works
12Title
13Restrictions etc.
13.1Matters affecting the Premises
13.2Restrictions
13.3No warranty as to compliance
13.4No dilution of Tenant’s obligations
13.5Encumbrances
13.6No enquiry or objection
14Conditions
14.1Further definition
14.2Incorporation/disapplication
15No assignment
15.1Covenant restricting alienation
15.2Personal covenant to take Lease
16Notices
16.1Form and addresses
16.2Deemed time of receipt
16.3Burden of proof
16.4No service by e-mail or by fax
17Continuing obligations
18Contracts (Rights of Third Parties) Act 1999
18.1No third party rights
18.2Parties may vary
19Representations
20Step In Provisions
21Disputes
21.1Parties must try to resolve by agreement
21.2Meaning of Independent Person
21.3Appointment by third party
21.4Arbitrator not expert
21.5Expert provisions if needed
21.6Costs
22Interest
23VAT
23.1Exclusive of VAT
24.2Reimbursement
24Entire agreement
24.1Old agreements superseded
24.2Duplicates
25Upcycling Activities
Schedule 1 - Description of Landlord’s Works
Schedule 2 - Description of Tenant's Works
Schedule 3 - Tenant’s Works Conditions
Schedule 4- The Tenant's Fit-Out Works
Annexure 1 - Form of lease
Annexure 2 - Form of Licence for Alterations
Annexure 3 – Not used
Annexure 4 – Not used
Annexure 5 – Deed of Indemnity
Annexure 6 – Not Used
Annexure 7 – Not used
Annexure 8 – JK Management Contract
Annexure 9 – Plan referred to in clause 9.3.2
Agreement for lease
Dated2015
Parties
(1)Thanet District CouncilofCecil Street, Margate, KentCT9 1XZ(the Landlord); and
(2)Sands Heritage Limited (company number 09094163) whose registered office is at Bridge House 4 Borough High Street London Bridge London SE1 9QR (the Tenant).
Background
The Landlord owns the freehold of the Premises at Dreamland Heritage Amusement Centre Marine Terrace Margate Kent and has agreed to grant the Tenant a lease of part of the Premises on the terms contained in this agreement.
The Premises are in a state of disrepair and incapable of being used for the purposes permitted under the Lease unless substantial infrastructure building and renovation works are carried out first. Both parties will be under an obligation to carry out certain works to the Premises under this agreement in order to bring the site back into operational use.
The Landlord has agreed to allow the Tenant to occupy the Premises as a licensee to carry out the Tenant Works and the Tenant's Fit Out Works and use the Premises before the grant of the Lease for the purposes permitted under the Lease.
Agreed terms
1Definitions and interpretation
In this Agreement the following words and expressions have the meaning specified unless the context requires otherwise.
1.1Definitions
Building Contractmeans the Main Works Building Contract and/or the Railway Works Building Contract and/or the Trains and Tracks Contract;CDM Regulations means the Construction (Design and Management) Regulations 2007 and any amendments to them;
Certificate of Making Good means the Contract Administrator's certificate or written statement issued in accordance with the relevant Building Contract certifying that any defects shrinkages or faults appearing in the Landlord's Works during the Rectification Period and for which the relevant building contractor was responsible under the relevant Building Contract have been made good;
Certificate of Practical Completion means any or all of the Main Works Certificate of Practical Completion and the Railway Works Certificate of Practical Completion and the Trains and Tracks Certificate of Practical Completion;
CIS Regulations mean the Income Tax (Construction Industry Scheme) Regulations SI 2005/2045;
Completion Date means 27 May 2015;
Concession Agreement means an agreement between the Landlord and the Tenant whereby the Landlord will allow the Tenant to operate the Premises for the purposes of an amusement park;
Construction Industry Scheme means the regime set out in Chapter 3 of Part 3 of the Finance Act 2004 and the CIS Regulations;
Contract Administrator means Spider Project Management Ltd of 2 Delves Avenue Tunbridge Wells Kent TN2 5DR;
Date of Practical Completion means the latest of:
(a)the date of the Main Works Certificate of Practical Completion;
(b)the date of the Railway Works Certificate of Practical Completion; and
(c)the date of the Trains and Tracks Contract Certificate of Practical Completion.
Deed of Indemnity means the deed of indemnity annexed to this Agreement in the forms annexed as Annexure 5;
Event of Default has the meaning ascribed to it in clause 20;
JK Management Contract means the quotation accepted by the Landlord for the carrying out of Japanese knotweed works on the Premises annexed at Annexure 8;
Landlord (save where otherwise specified in this Agreement) includes the successors in title of the Landlord to the Premises and any other person who is at any time entitled to the reversion immediately expectant on the term agreed to be granted by this Agreement;
Landlord’s Estate means the area shown edged yellow on Plan 1 attached to the Lease;
Landlord's Solicitors meansthe Legal Department of Thanet District Council;
Landlord’s Works means the Main Works and the Railway Works and the Trains and Tracks Contract Works and other works to be carried out on behalf of the Landlord at the Premises before the grant of the Lease save for the Post Completion Works which are to be carried out after Lease completion a brief descriptionof the Landlord’s Works being set out in the Specification and where appropriate more particularly defined in the relevant Building Contract but subject always to clause 3.6;
Lease meansthe lease of the Premises to be granted pursuant to clause 10 and, subject to provisions of clause 10, in the form annexed as Annexure 1;
Licence for Alterations means the licence for alterations in respect of the Tenant’s Fit Out Works in the form annexed to this Agreement at Annexure 2;
Main Works means the works specified in the Main Works Building Contract;
Main Works Building Contract means a building contract for the Main Works dated 23 December 2014 and made between the Landlord and Coombs (Canterbury) Limited;
Main Works Certificate of Practical Completion means the Contract Administrator’s certificate issued in accordance with the Main Works Building Contract stating that practical completion of the Landlord’s Works has been achieved;
Outstanding Works means those works defined in clause 3.2;
Planning Acts meansthe Town and Country Planning Act 1990, the Planning (Listed Buildings and Conservation Areas) Act 1990, the Planning (Hazardous Substances) Act 1990, the Planning (Consequential Provisions) Act 1990; the Planning and Compulsory Purchase Act 2004 and the Planning Act 2008;
Post Completion Works means those parts of the Landlord’s Works set out in Part 2 of the Specification and any other works being part of the Landlord’s Works relating to the Premises which are outstanding on the Completion Date;
Premises meansthe land known asDreamland Amusement Centre, Marine Terrace, Margate, Kentmore particularly described in the Lease together with the Landlord’s Works;
Railway Works means the works specified in the Railway Works Building Contract;
Railway Works Building Contract means a building contract for the Railway Works dated and made between the Landlord and Topbond Plc;
Railway Works Certificate of Practical Completion means the Contract Administrator's certificate issued in accordance with the Railway Works Building Contract stating that practical completion of the Landlord's Works has been achieved;
Rectification Period means the defects liability period or rectification period for the making good of defects, shrinkages or other faults in the Landlord's Works under the relevant Building Contract;
Requisite Consents meansall consents, licences, permissions and approvals of a public or private nature which may from time to time be required in respect of:
(a)the Landlord’s Works and each and every stage or phase of the Landlord’s Works;
(b)(if the same are destroyed or damaged) the reinstatement of the Landlord’s Works; and
(c)the grant of the Lease
and the term Requisite Consent is to be construed accordingly;
Restrictions meansall matters registered or capable of registration as local land charges, orders, resolutions, demands, proposals, requirements, regulations, restrictions, agreements, directions or other matters affecting the Premises or its use served or made by any local or other competent authority or otherwise arising under any statute or any regulation or order made under any statute;
Specification meansthe specification contained or referred to at Schedule 1 as varied or amended from time to time in accordance with the provisions of this Agreement;
Tenant's Fit Out Works means the works (if any) to be described in the schedule to the Licence for Alterations;
Tenant’s Solicitors meansCripps LLP of Wallside House, 12 Mount Ephraim Road, Tunbridge Wells, TN1 1EG (Ref: CNH/SA505721);
Tenant’s Works means such of those worksbeing part of the works more particularly described in the specification attached at schedule 2 and which relate to the Premises only and which are to be carried out by the Tenant in accordance with the provisions of Schedule 3;
Title Restrictions means all those covenants conditions charges liabilities restrictions and third party rights contained or referred to on the entries of the freehold titles registered at the Land Registry under title numbers TT20743, K975686 and K975737 as evidenced by official copies as follows:
24 April 2015 – 09:22:13 – TT20743
1 April 2015 – 14:54:26 – K975684
24 April 2015 – 09:19:33 – K975737
Trains and Tracks Contract means a building contract for the Trains and Tracks Contract Works dated 10 July 2014 and made between the Landlord and WGH Limited;
Trains and Tracks Contract Certificate of Practical Completion means the Contract Administrators certificate issued in accordance with the Trains and Tracks Contract stating that practical completion of the Trains and Tracks Contract Works has been achieved;
Trains and Tracks Contract Works means the works specified in the Trains and Tracks Contract;
Working Day meansany day except Saturdays and Sundays and which is not Christmas Day, Good Friday or a statutory bank holiday or public holiday and working days shall be construed accordingly; and
VAT meansvalue added tax or any tax of a similar nature which may be substituted for or levied in addition to it.
1.2Interpretation
1.2.1Any obligation on a party not to do or omit any act or thing will be taken to include a covenant not to suffer or permit the doing or omission of that act or thing.
1.2.2References in thisAgreement to any legislation are to that legislation as it may have been extended, modified, amended, re-enacted or replaced at the date upon which its construction is relevant for the purposes of thisAgreement and not as originally enacted or as at the date of thisAgreement.
1.2.3References generally to legislation include statutory instruments, regulations and other derivative legislation and any regulation or other legislation of the European Union that is directly applicable in England and Wales and include existing legislation and those that come into effect while this Agreement subsists.
1.2.4The headings above the clauses and the contents pages of this Agreement are for reference only and do not affect its construction.
1.2.5Any reference to a clause or schedule without further designation is a reference to a clause or schedule of this Agreement.
1.2.6The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement.
1.2.7Unless the context requires otherwise, words in the singular shall include the plural and in the plural shall include the singular.
1.2.8A reference to writing or written includes fax but not email.
1.2.9Unless expressly stated otherwise, a reference to the Premises or the Main Works or the Railway Works or the Trains and Tracks Contract Works or the Tenant's Works or the Tenant's Fit-Out Works is to the whole or any part of them.
2Requisite consents
2.1Application for Requisite Consents
The Landlord will apply for and use reasonable endeavours to obtain all Requisite Consents from time to time as may be appropriate before and throughout the course of the Landlord’s Works.
2.2Appeal against refusal
If a Requisite Consent is refused, the Landlord may at its own cost appeal against the refusal or take such other action in order to proceed with the Landlord’s Works but will not be obliged to do so.
2.3Landlord to give Tenant copies
The Landlord will give the Tenant a copy of each Requisite Consent as soon as reasonably practicable after they have been issued.
2.4Qualified or conditional consents
Any consent that is received by the Landlord which contains a condition or which is qualified in any way which the Landlord acting reasonably considers onerous will be deemed a refusal for the purposes of this clause 2.
3Landlord’s Works
3.1Execution of works
The Landlord will procure that the Date of Practical Completion occurs by the Target Date except for the Post Completion Works.
3.2Outstanding Landlord’s Works
The Landlord and Tenant agree:
3.2.1That on the Completion Date they shall collaborate in good faith and agree a schedule (“the Schedule”) of all such parts of the Landlord’s Works that remain outstanding and have yet to be completed (“the Outstanding Works”).
3.2.2The Schedule shall be signed by both parties and in consultation with each party’s professional advisers, the parties shall agree:
(a)the cost of carrying out the Outstanding Works; and
(b)the programme for completion of the Outstanding Works.
3.2.3The parties may agree (but are under no obligation to do so) that the Tenant may procure the carrying out of the Outstanding Works in place of the Landlord but otherwise the Landlord will remain responsible for completing the Outstanding Works in accordance with this agreement.
3.3Standard of works
The Landlord will use reasonable endeavours to procure that the Landlord’s Works are carried out:
3.3.1in conformity with all Requisite Consents;
3.3.2with due diligence in a good and workmanlike manner
3.3.3in accordance with good building and other relevant codes of practice and only using good quality materials and well maintained plant;
3.3.4in accordance with:
(a)all statutes and relevant enforceable codes of practice of the local authority and any other competent authority;
(b)the terms of this Agreement.
3.4Variations
The Landlord may make such changes to the Landlord’s Works as are necessary in order to comply with the terms of any Requisite Consent or statute.
3.5Materials may be substituted
If any materials required for the Landlord’s Works are unavailable within a reasonable time or at a reasonable cost, the Landlord may substitute other materials of equivalent or superior standard that are obtainable.
3.6Variations to Landlord’s Works
3.6.1The Landlord and Tenant acknowledge that variations have been made with the consent of both parties to the Landlord’s Works before the date of this agreement (“the Variations”).
3.6.2The Landlord and Tenant acknowledge that the Variations are correctly identified in the document attached entitled “Schedule of Variations to Landlord’s Works” (“the Variation Schedule”).
3.6.3The effect and impact of the Variations on the Landlord’s Works is also recorded in the Variation Schedule which the parties acknowledge is an accurate reflection of the impact of the Variations on the Landlord’s Works for the purposes of this Agreement.
3.7Japanese Knotweed Management Programme
3.7.1The Landlord shall at its own cost maintain the JK Management Contract and procure the performance of its terms for the management control and treatment of Japanese knotweed on the Premises for a period of 3 years after the date of completion of the Lease.
3.7.2The Landlord and the contractors approved under the JK Management Contract shall on reasonable prior notice and at reasonable times of the day, being during such times of the day as may be first approved by the Tenant whose approval shall not be unreasonably withheld or delayed, be entitled to enter upon the Premises to perform the works required pursuant to the JK Management Contract, the persons so entering making good forthwith to the reasonable satisfaction of the Tenant all damage caused to the Premises and the Tenant's fixtures and fittings thereby caused.
3.8Meaning of Landlord in this clause
The obligations in this clause 3 are binding only on the Landlord (here meaning the party named as Landlord in the Parties section of this Agreement).
4CDM Regulations
4.1Application of this clause
This clause applies to the extent that the CDM Regulations apply in relation to the Landlord’s Works and to the extent that the Tenant is a "client" for the purposes of the CDM Regulations.
4.2Election as only client
For the purposes of the CDM Regulations the Landlord elects to be the only client in respect of the Landlord’s Works and the Tenant agrees to that election.
4.3Fulfilment of duties as client
4.3.1The Landlord will in relation to the Landlord’s Works perform in all respects the duties of a client under the CDM Regulations.
4.3.2The Tenant will in relation to the Landlord's Works perform in all respects the duties imposed on it in regulations 5(1)(b), 10(1), 15 and 17(1) of the CDM Regulations insofar as those duties relate to information in the Tenant's possession.
4.4Records
The Landlord will place all relevant documents relating to the Landlord’s Works in the health and safety file for the Premises in accordance with the CDM Regulations. The Landlord will maintain the health and safety file for the Premises in accordance with the CDM Regulations and give the Tenant reasonable access to it. The Landlord will allow the Tenant to inspect the health and safety file and at its own cost take copies of any of the documents in it.