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.
There are drafting options within this Lease Plus Agreement for "standard" schemes and "specialist" schemes. Whether a scheme is standard or specialist will be determined by CHP (with the agreement of commissioners) as part of the business case approval process with reference to its clinical functionality and use. For example, GP surgeries and health centres are likely to be standard schemes, whereas Community Hospitals which include inpatient accommodation and urgent care centres which are operational 24/7 are likely to be specialist schemes.
NHS LIFT LPA Main Body and Schedule 1 V509/08/0614h26
Contents
Item / Page1DEFINITIONS, INTERPRETATION AND CONSTRUCTION...... 1
PART A: PROPERTY INTERESTS...... 1
2DEMISE...... 1
3RIGHTS AND RESERVATIONS...... 2
4ENCUMBRANCES...... 2
5SECURITY OF TENURE...... 2
5AOPTION TO PURCHASE FREEHOLD...... 2
PART B : DEVELOPMENT PHASE...... 2
6LICENCE TO ENTER TO CARRY OUT THE WORKS...... 3
7PROJECT PROGRAMME...... 3
8DESIGN AND CONSTRUCTION...... 3
8ASAFETY DURING CONSTRUCTION...... 5
9DESIGN REVIEW PROCEDURE...... 5
10COMPLIANCE WITH THE TENANT’S REQUIREMENTS FOR THERMAL AND ENERGY EFFICIENCY 6
11TENANT’S REPRESENTATIVE...... 7
12CERTIFICATION OF COMPLETION OF THE WORKS...... 9
13COMMISSIONING...... 10
14DELAY EVENTS [AND LIQUIDATED DAMAGES]...... 15
15RELIEF EVENTS...... 2019
16QUALITY ASSURANCE AND PROJECT EXECUTION PLAN...... 21
17CONSTRUCTION INDUSTRY TAX DEDUCTION SCHEME...... 2423
18DOCUMENTS, INFORMATION AND INTELLECTUAL PROPERTY RIGHTS...... 25
PART C : PAYMENT...... 27
19LEASE PAYMENT...... 27
20PAYMENT OF OUTGOINGS...... 32
PART D : TENANT’S OBLIGATIONS...... 3233
21COVENANT...... 3233
22USER...... 3233
23ALIENATION BY TENANT...... 3334
24NOTICE OF DEALINGS...... 4041
25NUISANCE/OBSTRUCTION/PRESCRIPTIVE RIGHTS...... 4042
26YIELD UP...... 4243
27DAMAGE...... 4243
28SIGNS...... 4244
29PLANNING...... 4344
30COSTS...... 4344
PART E : LANDLORD’S OBLIGATIONS...... 4344
31COVENANT...... 4344
32QUIET ENJOYMENT...... 4345
33[USE IN OTHER PARTS OF THE FACILITIES...... 4445
34PROVISION OF THE SERVICES AND THE LEASE OPERATIONS...... 4546
34ATRANSFER OF EMPLOYMENT...... 4546
35MAINTENANCE...... 4647
35ALIFECYCLE PROFILE AND LIFECYCLE SPEND...... 49
36MONITORING OF PERFORMANCE...... 4851
36AEXCUSING CAUSES...... 5253
37INSURANCE...... 5456
38ALIENATION BY THE LANDLORD...... 6164
38A SALE OF SHARES IN LANDLORD AND SUPERIOR HOLDING COMPANIES...6266
39SUB-CONTRACTING...... 6366
39APERFORMANCE AND SUBCONTRACTORS...... 6468
40EQUIPMENT...... 6569
41[PROVISIONS RELATING TO IT SERVICES AND MEDICAL EQUIPMENT...... 6569
[41ASOFT SERVICES MARKET TESTING...... 6669
PART F: FLEXIBILITY...... 6669
42FLEXIBILITY...... 6669
42ACHANGES TO FUNDING AGREEMENTS AND REFINANCING...... 6770
PART G: TERMINATION...... 6771
43LANDLORD EVENT OF DEFAULT...... 6771
44RE-ENTRY...... 6872
PART H : MISCELLANEOUS...... 6972
45INDEMNITIES...... 6972
46CHANGE OF LAW AND COMPLIANCE WITH STATUTORY REQUIREMENTS...... 7377
47VARIATIONS...... 7680
48FORCE MAJEURE...... 7780
49DISPUTE RESOLUTION...... 7882
50NOTICES...... 7882
51AMENDMENTS...... 7983
52WAIVER...... 7983
53NO AGENCY...... 7983
54ENTIRE AGREEMENT AND WARRANTIES...... 7983
55SEVERABILITY...... 8184
56COUNTERPARTS...... 8185
57COSTS AND EXPENSES...... 8185
58NO PRIVITY...... 8185
59MITIGATION...... 8185
60NO IMPLIED RIGHTS...... 8185
61DUE DATES...... 8285
62FURTHER ASSURANCE...... 8285
63GOVERNING LAW AND JURISDICTION...... 8488
64STAMP DUTY CERTIFICATE...... 8588
65PERSONAL DATA...... 8588
66CONFIDENTIALITY...... 8589
67FREEDOM OF INFORMATION...... 8892
68[DISASTER PLAN...... 9094
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 AGREEMENTS
SCHEDULE 21DISPUTE RESOLUTION
SCHEDULE 22SOFT SERVICES MARKET TESTING
SCHEDULE 23CONFIDENTIAL INFORMATION
SCHEDULE 24REFINANCING
1
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NHS LIFT Standard Form Lease Plus Agreement
Version 55.1
IMPORTANT NOTICE
This is an update to 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. Community Health Partnerships (CHP), NHS England (NHSE) 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 CHPconsent for such customisation will be required from the relevant approving bodies.
In the context of the current economic climate and the steps being taken by HM Treasury to review operational PFI contracts, there are a number of aspects of the LPA version 5 which have been reviewed to ensure that they comply with current HM Treasury guidance and still deliver value for money for the public sector.
In particular, we have taken the opportunity to consider where the LPA requires updating
- For legislative updates (such as TUPE and pensions);
- To align with current DH SF3 drafting (such as refinancing and transparency on pricing of variations);
- To reflect new PF2 principles (for example lifecycle fund sharing); and
- To improve value for money and best practice in the LIFT market.
Users of this standard form should be aware of the following points:
1In compiling this version CHP 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 CHP 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” CHP 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 CHP’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 CHP.
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 CHP.
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 CHP 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.
15 The 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.
26 The standard form LPA should be used in conjunction with guidance issued by CHP and DH from time to time.
37 This notice and the footnotes should be removed as appropriate before finalisation of the document for execution and/or submission to biddersfor approval.
48 Local Authorities entering into an LPA should seek the necessary approvals from the relevant Government department.
59 Should you have any questions on the draft you are asked to contact .
Prescribed Clauses
LR1 Date of leaseLR2 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]:
“No disposition of the registered estate by the proprietor of the registered estate or by 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
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THIS LEASE is made on 20
BETWEEN:
(1)[ ] whose principal office is at[] (“the Landlord”)
(2)[TENANT](may be CHP, individual GPs or other stakeholders) of [] (“theTenant”)
WHEREAS
A.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 set up Community Health Partnerships Limited (formerly Partnerships for Health Limited) 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. Community Health Partnerships Limited 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.
B.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 [ ].
C.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.
D.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.
E.The Landlord has obtained detailed Planning Permission for the carrying out of the Works on the Site.
F.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 Schedule 1 (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 Site 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 Site 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 Site 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