LEASE PLUS AGREEMENT
for
[Insert property details]

Note: A Lease Plus Agreement is to be used where land is owned by Liftco or its subsidiary. Where land is not owned by Liftco, please refer to the Land Retained Agreement.

The selection of the required drafting options for schemes of any capital value which include theatres or similar clinical facilities is mandatory. For schemes over £10m in capital value but which do not include theatres or similar clinical facilities, there may on occasion be genuine project specific reasons why the required drafting options are not appropriate. In these circumstances please consult with the approving body for guidance.

NHS LIFT LPA Main Body and Schedule 1 V509/08/0614h26

Contents

Item / Page

1DEFINITIONS, INTERPRETATION AND CONSTRUCTION

PART A: PROPERTY INTERESTS

2DEMISE

3RIGHTS AND RESERVATIONS

4ENCUMBRANCES

5SECURITY OF TENURE

5AOPTION TO PURCHASE FREEHOLD

PART B : DEVELOPMENT PHASE

6LICENCE TO ENTER TO CARRY OUT THE WORKS

7PROJECT PROGRAMME

8DESIGN AND CONSTRUCTION

8ASAFETY DURING CONSTRUCTION

9DESIGN REVIEW PROCEDURE

10COMPLIANCE WITH THE TENANT’S REQUIREMENTS FOR THERMAL AND ENERGY EFFICIENCY

11TENANT’S REPRESENTATIVE

12CERTIFICATION OF COMPLETION OF THE WORKS

13COMMISSIONING

14DELAY EVENTS [AND LIQUIDATED DAMAGES]

15RELIEF EVENTS

16QUALITY ASSURANCE AND PROJECT EXECUTION PLAN

17CONSTRUCTION INDUSTRY TAX DEDUCTION SCHEME

18DOCUMENTS, INFORMATION AND INTELLECTUAL PROPERTY RIGHTS

PART C : PAYMENT

19LEASE PAYMENT

20PAYMENT OF OUTGOINGS

PART D : TENANT’S OBLIGATIONS

21COVENANT

22USER

23ALIENATION BY TENANT

24NOTICE OF DEALINGS

25NUISANCE/OBSTRUCTION/PRESCRIPTIVE RIGHTS

26YIELD UP

27DAMAGE

28SIGNS

29PLANNING

30COSTS

PART E : LANDLORD’S OBLIGATIONS

31COVENANT

32QUIET ENJOYMENT

33[USE IN OTHER PARTS OF THE FACILITIES

34PROVISION OF THE SERVICES AND THE LEASE OPERATIONS

34ATRANSFER OF EMPLOYMENT

35MAINTENANCE

36MONITORING OF PERFORMANCE

36AEXCUSING CAUSES

37INSURANCE

38ALIENATION BY THE LANDLORD

38A SALE OF SHARES IN LANDLORD AND SUPERIOR HOLDING COMPANIES

39SUB-CONTRACTING

39APERFORMANCE AND SUBCONTRACTORS

40EQUIPMENT

41[PROVISIONS RELATING TO IT SERVICES AND MEDICAL EQUIPMENT

[41ASOFT SERVICES MARKET TESTING

PART F: FLEXIBILITY

42FLEXIBILITY

42ACHANGES TO FUNDING AGREEMENTS AND REFINANCING

PART G: TERMINATION

43LANDLORD EVENT OF DEFAULT

44RE-ENTRY

PART H : MISCELLANEOUS

45INDEMNITIES

46CHANGE OF LAW AND COMPLIANCE WITH STATUTORY REQUIREMENTS

47VARIATIONS

48FORCE MAJEURE

49DISPUTE RESOLUTION

50NOTICES

51AMENDMENTS

52WAIVER

53NO AGENCY

54ENTIRE AGREEMENT AND WARRANTIES

55SEVERABILITY

56COUNTERPARTS

57COSTS AND EXPENSES

58NO PRIVITY

59MITIGATION

60NO IMPLIED RIGHTS

61DUE DATES

62FURTHER ASSURANCE

63GOVERNING LAW AND JURISDICTION

64STAMP DUTY CERTIFICATE

65PERSONAL DATA

66CONFIDENTIALITY

67FREEDOM OF INFORMATION

68[DISASTER PLAN

SCHEDULES

SCHEDULE 1DEFINITIONS AND INTERPRETATION

SCHEDULE 2PROPERTY RIGHTS, RESERVATIONS AND EASEMENTS

SCHEDULE 3TENANT'S REQUIREMENTS

SCHEDULE 4LANDLORD'S PROPOSALS

SCHEDULE 5 PART1DESIGN REVIEW PROCEDURE

SCHEDULE 5 PART 2REVIEWABLE DESIGN DATA

SCHEDULE 6COMPLETION ACCEPTANCE SCHEDULE

SCHEDULE 7 PART 1PROJECT PROGRAMME

SCHEDULE 7 PART 2OUTLINE COMMISSIONING PROGRAMME

SCHEDULE 8INSURANCE

SCHEDULE 9 PART 1SERVICE SPECIFICATION

SCHEDULE 9 PART 2METHOD STATEMENTS

SCHEDULE 10PAYMENT MECHANISM

SCHEDULE 11DRAFT FORM OF INDEPENDENT TESTER APPOINTMENT

SCHEDULE 12 PART 1VARIATIONS

SCHEDULE 12 PART 2FINANCE FOR CAPITAL EXPENDITURE IN RESPECT OF VARIATIONS

SCHEDULE 12 PART 3GENERAL PROCEDURE

SCHEDULE 13REVIEW PROCEDURE

SCHEDULE 14TENANT’S OPTION TO PURCHASE

SCHEDULE 15OPERATIONAL REQUIREMENTS

SCHEDULE 16TRANSFER OF EMPLOYMENT

SCHEDULE 17CORPORATE WARRANTIES BY THE LANDLORD

SCHEDULE 18HANDOVER ON EXPIRY AND TERMINATION

SCHEDULE 19FUNDER'S DIRECT AGREEMENT

SCHEDULE 20COLLATERAL WARRANTIES

SCHEDULE 21DISPUTE RESOLUTION

SCHEDULE 22SOFT SERVICES MARKET TESTING

SCHEDULE 23CONFIDENTIAL INFORMATION

SCHEDULE 24REFINANCING

1

NHS LIFT Standard Form Lease Plus Agreement

Version 5

IMPORTANT NOTICE

This is the fifth version of the NHS LIFT standard form of Lease Plus Agreement (LPA) the intention of which is to minimise the time and costs of dealing with legal issues relating to LIFT. Partnerships for Health (PfH) and the Department of Health (DH) expect the standard form LPA to be used substantially un-amended. A certain degree of customisation of the standard form LPA will be necessary to reflect the individual features of particular schemes; in particular, the scope of services required from the Landlord, the capital value of the Facilities and the nature of the clinical activities undertaken. However project specific justification must be given to any such customisation and must be approved by PfH/DH.

Users of this standard form should be aware of the following points:

1In compiling this version PfH has considered deviations from the previously published version of standard form agreed on signed deals, those points raised consistently by bidders during the tender phase of projects, and the views of public and private sector lawyers. To the extent that a point has not been addressed in a particular way it is because PfH has taken the view that it is not appropriate for inclusion.

Accordingly, there may be points on which the private and public sectors have to “agree to disagree” PfH do not propose to enter into negotiations on these amendments. The majority of points regularly raised by the private sector have been included and it is PfH’s hope that all parties will regard this draft as representing a genuine compromise between their respective interests. This will mean that standardisation will have a chance to bed down and this version of this standard form can be seen as the finishing point and not the starting point for negotiations leaving the parties to focus their legal resources on project specific issues and details of the nature of the service to be delivered.

2The use of this version of the standard LPA is mandatory on all schemes which have yet to reach preferred bidder stage. On those projects which are already at preferred bidder stage it is for both parties to agree whether they wish to use this version of the LPA but if it is used it must be used in its entirety (i.e. all amendments must be incorporated). If the parties elect not to use this version then no amendments to version 5 of the standard LPA can be agreed without the prior consent of PfH/DH.

3The standard form contract contains a number of footnotes which identify certain key issues which the parties will need to consider when using it. The footnotes have been reviewed and revised as part of this process. However, this is not an exhaustive list, and the standard form LPA will therefore need to be analysed and reviewed in detail to ensure that it is tailored to the requirements of each project and that its terms (and their impact) are clearly understood by the tenant. Customisation should not however extend to the parties seeking to change the substance of commercial terms or making unnecessary drafting amendments. All changes to the standard form contract require the prior approval of PfH and, for tranches where the capital value is over £25 million (where the NHS is taking responsibility, i.e. entering into the LPA), DH.

4All parties are reminded that LIFT is a true partnership in every sense of the word and the value of further debate over insubstantial issues should be considered in this light. Both PfH and the public sector shall thereby be positively motivated to work with the private sector to avoid or mitigate the impact of any issues that may arise over the lifetime of the project.

5The standard form LPA is not a replacement for independent, specialist advice and tenants must ensure that they have taken appropriate legal, financial and technical advice before using this document.

6The standard form LPA should be used in conjunction with guidance issued by PfH and DH from time to time.

7This notice and the footnotes should be removed as appropriate before finalisation of the document for execution and/or submission to bidders.

8Where tranches of schemes have a capital value in excess of £25 million, and where the NHS is taking responsibility, i.e. entering into the LPA, DH approval must be sought. Local Authorities entering into an LPA should seek the necessary approvals from the relevant Government department.

9Should you have any questions on the draft you are asked to contact .

Prescribed Clauses

LR1 Date of lease
LR2 Title number(s) / LR2.1 Landlord’s title number(s)
LR2.2 Other title numbers
LR3 Parties to this lease / Landlord
Tenant
Other Parties [None]
LR4 Property / In the case of a conflict between this clause and the remainder of this lease then, for the purposes of registration, this clause shall prevail.
[See definition of “Premises” at paragraph 1.1 of Schedule 1of this lease]
LR5 Prescribed statements etc / LR5.1 Statements prescribed under rules 179 (dispositions in favour of a charity), 180 (dispositions by a charity) or 196 (leases under the Leasehold Reform, Housing and Urban Development Act 1993) of the Land Registration Rules 2003.
[None]
LR5.2 This lease is made under, or by reference to, provisions of:
[None]
LR6 Term for which the Property is leased / The term as specified in this lease at [paragraph 1.1 of Schedule 1 in the definition of “Term”]
LR7 Premium / [None]
LR8 Prohibitions or restrictions on disposing of this lease / This lease contains a provision that prohibits or restricts dispositions.
LR9 Rights of acquisition etc / LR9.1 Tenant’s contractual rights to renew this lease, to acquire the reversion or another lease of the Property, or to acquire an interest in other land
[See clause 5A.1 – Tenant’s option to purchase reversion]
[See clause 38.4 – Tenant’s right of pre-emption to purchase reversion]
[See clause 43.1.3 - Tenant's Option to purchase for wilful breach of refinancing provisions]
[See clause 43.4 – Tenant’s option to purchase reversion]
[See clause 48.10 – Tenant’s option to purchase reversion]
LR9.2 Tenant’s covenant to (or offer to) surrender this lease
[None]
LR9.3 Landlord’s contractual rights to acquire this lease
[None]
LR10 Restrictive covenants given in this lease by the Landlord in respect of land other than the Property / [See clause 33 – Use in other parts of the Facilities]
LR11 Easements / LR11.1 Easements granted by this lease for the benefit of the Property
[The easements as specified in Part 1 of Schedule 2 of this lease]
LR11.2 Easements granted or reserved by this lease over the Property for the benefit of other property
[The easements as specified in Part 2 of Schedule 2 of this lease]
LR12 Estate rentcharge burdening the Property / [None]
LR13 Application for standard form of restriction
[This is a standard form restriction – Form M can be inserted here. No need to complete Form RX1.]
[Form M] / The Parties to this lease apply to enter the following standard form of restriction [against the title of the Property] or [against title number]
[The Parties to this lease apply to enter the following standard form of restriction [against the title of the Property] or [against title number]:
“No disposition of the registered estate by the proprietor of the registered estate or the proprietor of any registered charge is to be registered without a certificate signed by [NAME OF TENANT] of [ADDRESS] (or its conveyancer) that the provisions of Clause 38.4 of a Lease Plus Agreement dated [DATE] and made between [LANDLORD] and [TENANT] has been complied with or that they do not apply.”]
[The Parties to this lease apply to enter the following standard form of restriction [against the title of the Property] or [against title number]:
“No disposition of the registered estate by the proprietor of the registered estate is to be registered without a certificate signed by [TENANT] [or his conveyancer] that the provisions of Clause 33.4 of the Lease Plus Agreement [provide details] have been complied with.”]
LR14 Declaration of trust where there is more than one person comprising the Tenant / [None]
[If Tenant is likely to be two or more individuals, add wording for Tenant’s solicitors to complete].

1

THIS LEASE is made on 200

BETWEEN:

(1)[ ] whose principal office is at[] (“the Landlord”)

(2)[TENANT](may be a PCT, individual GPs or other stakeholders) of [] (“theTenant”)

WHEREAS

  1. The Department of Health, pursuant to the Health and Social Care Act 2001, committed to introducing new solutions to the investment needs of community based care services. Partnerships UK and the Department of Health have set up Partnerships for Health for the purposes of enabling supporting and investing in local health economies, through the setting up of Local Improvement Finance Trusts to deliver improved facilities and services. Partnerships for Health investments in Local Improvement Finance Trusts will help deliver a significant part of the Government’s targets in the health sector as set out in the NHS Plan of July 2000.
  1. The current policy of the Department of Health is to implement such investment projects through Local Improvement Finance Trusts. [ ] is the Local Improvement Finance Trust for the local health economy of [ ].
  1. The Landlord has agreed to develop/refurbish the Premises and the remainder of the Facilities of which the Premises form part by carrying out the Works on the Site in accordance with Tenant’s Requirements and the Landlord’s Proposals.
  1. The Landlord is the owner of the freehold interest in the Site and has agreed to grant a lease of the Premises to the Tenant.
  1. The Landlord has obtained detailed Planning Permission for the carrying out of the Works on the Site.
  1. The parties acknowledge the existence of the Strategic Partnering Agreement (as defined in this Lease) the provisions of which shall apply where indicated in this Lease.

PRELIMINARY

1DEFINITIONS, INTERPRETATION AND CONSTRUCTION

This Lease shall be interpreted according to the provisions of (Definitions and Interpretation).

PART A: PROPERTY INTERESTS

2DEMISE

In consideration of the covenants on the part of the Tenant contained in this Lease the Landlord with full title guarantee DEMISES the Premises to the Tenant for the Term.

3RIGHTS AND RESERVATIONS

The Landlord demises the Premises[1] with the benefit of the rights set out in Part 1 of Schedule 2 but subject to the exceptions and reservations set out in Part 2 of Schedule 2.

4ENCUMBRANCES

4.1The Premises are demised subject to the Landlord’s Title.

4.2The Tenant covenants to comply with the Landlord’s Title in so far as it affects the Premises [save for [ ]].

5SECURITY OF TENURE

The Tenant’s rights of security of tenure under the Landlord and Tenant Act 1954 shall not be excluded.

5AOPTION TO PURCHASE FREEHOLD[2]

5A.1The Landlord grants the Tenant an option to purchase the Premises on the terms set out in Schedule 14A.

5A.2If requested by the Tenant, the Landlord will give the Tenant consent to the entry against the Landlord’s title to the Premises at the Land Registry of the following entries in order to protect this agreement:

5A.2.1agreed notices in order to protect the options contained in Clauses 5A.1, 43.4 and 48.10 of this Lease; and

5A.2.2a restriction in order to protect the rights contained in Clause 38.4 of this Lease in the following terms:

“No disposition of the registered estate by the proprietor of the registered estate or the proprietor of any registered charge is to be registered without a certificate signed by [NAME OF TENANT] of [ADDRESS](or its conveyancer) that the provisions of Clause 38.4 of a Lease Plus Agreement dated [DATE] and made between [LANDLORD]and [TENANT] has been complied with or that they do not apply.”

5A.3If the Landlord has assigned or transferred the entirety of its interest in the Premises pursuant to the Terms of this Lease or otherwise upon the expiry of this Lease (and provided that the Landlord has complied with all pre-transfer obligations contained in Clauses 38.2, 38.4, 38.5 and Schedule 14B (if applicable)) then simultaneously with such assignment or transfer the Tenant (having been provided with not less than 10 Business Days notice of completion of the assignment or transfer) or otherwise upon the expiry of this Lease shall provide the Landlord with an appropriate certificate to cancel the restriction set out in Clause 5A.2.2 or consent to the registration of the disposition (as appropriate) unless the assignment or transfer is pursuant to Clause 38.7 in which case the Tenant shall only be obliged to provide a certificate confirming that the restriction does not apply.

PART B : DEVELOPMENT PHASE

6LICENCE TO ENTER TO CARRY OUT THE WORKS[3]

6.1Immediately following the grant of this Lease, the Tenant shall grant a licence in favour of the Landlord and all others duly authorised by the Landlord to enter the Premises to carry out and complete the Works. The grant of this licence shall be deemed to have taken place following the grant of the Lease without further formality.

6.2The grant of the licence referred to in Clause 6.1 shall not operate as any demise of the Premises by the Tenant to the Landlord.

With effect from the grant of the licence, the Landlord shall be responsible for all outgoings payable in relation to the Site[4].

7PROJECT PROGRAMME

7.1Any Project Programme submitted in accordance with the provisions set out below shall be prepared in accordance with Good Industry Practice and shall be in sufficient detail so as to enable the Tenant's Representative to monitor the progress including all commissioning activities and likely future progress of the Works.

7.2The initial Project Programme is set out at Schedule 7 Part 1 (Project Programme). Any change to the Project Programme shall only be made in accordance with this Clause and Schedule 13 (Review Procedure). The Landlord shall promptly submit to the Tenant's Representative a copy of any version of the Project Programme varied in accordance with this Clause 7 and Schedule 13 (Review Procedure).

7.3If it appears to the Tenant's Representative at any time that the actual progress of the Works has significantly fallen behind the Project Programme, then the Tenant's Representative shall be entitled to require the Landlord to submit to the Tenant's Representative a report identifying the reasons for the delay and, unless the event causing the delay is still subsisting and it is not possible to predict with any certainty when the delay might come to an end, require the Landlord (at the Tenant's option):

7.3.1to produce and submit to the Tenant's Representative in accordance with Schedule 13 (Review Procedure) a revised Project Programme showing the manner and the periods in which the Works will be carried out to ensure completion; and/or

7.3.2to produce and submit to the Tenant's Representative in accordance with Schedule 13 (Review Procedure) a revised Project Programme showing the steps which are to be taken to eliminate or reduce the delay.

8DESIGN AND CONSTRUCTION

8.1The Landlord shall carry out and complete, or procure the carrying out and completion of the Works:

8.1.1so as to procure satisfaction of the Tenant’s Requirements;

8.1.2in accordance with the Landlord’s Proposals;[5]

8.1.3on or before the Completion Date and, in any event before the Long Stop Date; and

8.1.4in accordance with the terms of this Lease.

8.2To avoid doubt, the obligations set out in Clause 8.1 are independent obligations that must each be satisfied. In particular:

8.2.1the fact that the Landlord has complied with the Landlord’s Proposals shall not be a defence to a claim that the Landlord has not satisfied the Tenant’s Requirements; and

8.2.2the fact that the Landlord has satisfied the Tenant’s Requirements shall not be a defence to a claim that the Landlord has failed to comply with the Landlord’s Proposals.