- The Homes and Communities Agency has agreed that it will provide capital funding to [ ] Council on the following basis:
- Homes and Communities Agency (the "Agency") is prepared to provide [ Council] ("the Council") funding of up to [ ] pounds ( )(the "Funding") on the terms and conditions set out in this letter.
- The Council acknowledges and agrees that the Agency's obligation to provide the Funding is subject to the Agency receiving any approvals the Agency may require (whether internally or from central Government) and on central Government making funds available to the Agency for the Funding.
- This letter and the attached schedules (together with any documents which are attached to it or referred to in it) will form the Agreement between the Counciland the Agency.
- The key points of the proposed Funding for the Project are as follows:
Amount of Funding / Up to [ ] pounds (£ )
Project / Site preparation to facilitate the construction on the Land of Starter Homes comprising such of the following as are required:
environmental remediation
site clearance
ecological works
site investigation
Aim of the Project / To facilitate the provision of Starter Homes on the Land
Outputs and Milestones / See Schedule3
Start Date / [ ]
Project Completion Date / 31 March 2016
- Terms and Conditions
- The offer made by the Agency is subject to the terms of this Agreement including the terms specified in the general terms and conditions specified atSchedule2.
- All defined terms shall have the meaning set out at Schedule1.
- Payment and use of Funding
The Agency will pay the Funding in relation to Allowable Costs and the Council hereby undertakes only to use the Funding towards Allowable Costs. Each instalment will be paid direct to the Council’s nominated bank account subject to the provisions of this Agreement, within 28days of receiving the Council’s correctly completed Claim Form.
The Agency may delay payment of an instalment if, following receipt of the Council’s Claim Form it requires further information from the Council because the Council has not correctly completed the Claim Form. In these circumstances, the Agency will write to the Council within 14days of receipt of the Claim Form setting out what further information it requires and the time period for providing that information. The Agency will not act vexatiously and will act in good faith in making such requests.
2.4Reporting
The Council will provide the Agency with the reports (and at the frequency) set out in Schedule5.
2.5Lapse of Offer
This offer will automatically lapse if, without the Agency's written consent, either;
(a)A Claim Form is not received fromthe Councilon or before 31 March 2016; or
(b)The Council fails to return the Council’s acceptance within 14 days of the date of this offer.
2.6Communications
Enquiries and correspondence: Except where otherwise specifically provided, the Council’s contact for all enquiries at the Agency and correspondence to the Agency is the Agency’s nominated contact from time to time.
Notices: All notices to be served on the Agency by the Council must be in writing and either be delivered at or sent by first class post to Arpley House, 110 Birchwood Boulevard, Birchwood, Warrington, WA3 7QH for the attention of the Head of Legal Services, and copied to the Deputy Head of Legal Services, Fry Building, 2 Marsham Street, London, SW1P 4DF.
Any notice shall be accepted as having been received;
(a)if sent by firstclass post, three days after posting exclusive of the day of posting; or
(b)if delivered by hand, on the day of delivery.
And in the case of the Agency addressed as set out above and in the case of The Council to the ChiefExecutive at [ ] Council, of [ ].
Either party may change the details of service by notice in accordance with the above.
2.7Amendments to the Agreement
No amendments may be made to this Agreement except in writing signed by both parties save that the Agency may amend or vary the Agreement where either:
(a)mandatory changes are required by the UK or EU laws or regulations;
(b)by mutual written consent between the Council and the Agency.
- Acceptance
- This offer is effective from the date of this letter and remains valid for a period of 14 days (unless extended, in writing, by the Agency). If the Council wishes to accept the offer, please sign and return the enclosed copy of this letter.
- On acceptance of the Agency’s offer, the Council will be bound by the terms and conditions of this Agreement. The Council will be accepting legal obligations and should consider taking independent professional advice before such acceptance.
- By accepting this offer the Council acknowledges that no amendments the Council makes to this Agreement following issue by the Agency will be valid unless expressly agreed between the Council and the Agency in advance in writing and unless there has been such prior written agreement the Council’s acceptance of this offer will be an acceptance of the Agreement as issued by the Agency.
- Termination
The Agency reserves the right to terminate this Agreement by notice in writing and / or to implement paragraph4 ofSchedule2 with immediate effect where;
(a)The Council fails to achieve any Output or Milestone;
(b)The Council fails to remedy any breach of this Agreement which is capable of remedy within 30days written notice from the Agency requiringthe Council to do so;
(c)The Council commits a breach of this Agreement which is incapable of remedy.
Yours sincerely
Authorised Signatory
On behalf of Homes and Communities Agency
On Copy: We hereby accept the Agency’s offer of Funding and the terms and conditions of this Agreement.
Signed thisday of2015
SIGNED by (print name)Signature
Authorised to sign on behalf of:
SCHEDULE 1
DEFINITIONS
The following terms shall have the following meanings when used in this Agreement (unless the context requires otherwise)
Administration Expenses / Will be calculated at 1% of the Advanced Funding (excluding any amounts repaid)Advanced Funding / Means Funding which has been paid by the Agency to the Council pursuant to this Agreement
Agreement / This letter and the attached Schedules and documents annexed.
Allowable Costs / The capital expenditure that has been or will be wholly and necessarily incurred and paid by the Council in carrying out the Project.
Best Practice / Means know-how and information which the Agency reasonably regards as best practice in the relevant sector, area, profession, business and/or industry
CDM Regulations / Construction (Design and Management) Regulations 2015
Claim / Means an application for Funding on a Claim Form
Claim Form / The document in the form of the template annexed as Appendix 4 to be completed and provided by the Council to the nominated Agency contact at agreed intervals to claim Funding
Clawback / The Agency’s right to recover the whole or any part of the Funding under paragraph 4 of Schedule2.
Client / means the individual defined as such under the CDM Regulations
Developer Disposal / A Disposal of the Land to a developer on terms that require the development of the Land for the delivery and sale of Starter Homes
Disposal / means a transfer, disposal or grant of any legal or equitable interest in or over the Land or part thereof (other than the grant of a licence not creating exclusive possession terminable on 3months' notice or less) including by way of lease and the terms “Dispose” and “Disposed” shall be construed accordingly
EIR Exception / Any applicable exemption to disclosure of information under the EIR
EIR / The Environmental Information Regulations 2004 and any guidance and/or codes of practice relating to them
EU Procurement Regulations / All applicable United Kingdom and European procurement legislation and any implementing measures and any other legislation in connection with the procurement of works, supplies or services including European Union directives 89/665/EEC, 2004/17/EC and 2014/24/EU, United Kingdom Statutory Instruments 1991/268, 1995/201, 1993/3228, 2006/6 and 2015/102 (Public Contracts Regulations 2015) insofar as the same are applicable
Exempt Disposal / The grant of easements or rights, transfer, lease or dedication of any part of the Land to
(a)A highways authority to comply with highways requirements or in connection with the adoption or dedication of public highway
(b)A utilities company for an electricity substation, gas governor, sewage or pumping station, drainage balancing device or other similar matters for the provision of services
(c)Such other Disposal as the Agency may agree in writing
Exempted Information / any Information that is designated as falling or potentially falling within a FOIA Exemption or an EIR Exception
FOIA / The Freedom of Information Act 2000 and any subordinate legislation made under it and any guidance and/or codes of practice issued relating to it
FOIA Authority/Authorities / means a public authority as defined by FOIA and / or EIR
FOIA Exemption / Any applicable exemption to disclosure of information under the FOIA
Funding / The financial contribution of capital funding to the Project made by the Agency to the Council under this Agreement.
Funding Availability Period / The period commencing on the date of this Agreement and ending on and including 31 March 2016
GLA / Means the Greater London Authority established by the Greater London Authority Act 1999 (as amended)
GLA Area / Means the administrative area of the GLA
HS Legislation / Any applicable health and safety legislation, statutory instruments or regulations (including but not limited to the Health and Safety at Work etc. Act 1974) and any guidance and/or codes of practice relating to them
Individual / meansone or more individuals (not being a partnership, firm, trust, body corporate, government, governmental body, authority, agency or unincorporated body of persons or association) who intend to occupy a Starter Home for his, her or their sole or main residence
Information / in relation to:
(a) FOIA, has the meaning given under section 84 of the FOIA and which isheld by a FOIA Authority at the time of receipt of a Request for Information; or
(b) EIR, has the meaning given under the definition of “environmental information” in section 2 of EIR and which is held by a FOIA Authority at the time of receipt of a Request for Information
Intellectual
Property / Includes, without limit, all copyright (and future copyright), patents, trademarks and service marks (whether registered or not) design rights, registered designs, database rights, moral rights and know-how together with the right to register, protect, enforce and exploit the above anywhere in the world.
Land / Means the land shown edged red on the plan attached at Appendix 1
Milestones / Key events and stages as agreed between the Council and the Agency in relation to the Project specified in Schedule 3.
Milestone Date / A date specified in Schedule 3 by which a Milestone is to occur
Milestone Extension Event / Any of the following:
(a)delay in receipt of any necessary permission licence or approval of any statutory body where the Council has taken all reasonably practicable steps to avoid and/or reduce the same
(b)exceptionally adverse weather conditions
the exercise after the date of this Agreement by the United Kingdom Government of any statutory power which directly affects the execution of the project
(d)the use or threat of terrorism and/or the activity of the relevant authorities in dealing with such use or threat(s) fire explosion lightning storm tempest flood burst or overflow of water tanks apparatus or pipes ionising radiation earthquakes riot and civil commotion
(f)official or unofficial strike
(g)lockout, go-slow or other dispute generally affecting the house renovation industry or a significant sector of it
(h)failure by any statutory undertaker or utility company or other like body to carry out works or provide services
(i)failure or shortage of power fuel or transport
(j)any event which under any reasonably standard building contract with reasonable terms and conditions (and a contract published by the NEC and/or the JCT shall be deemed to be reasonably standard) entitles the building contractor to an extension of time and which event is a standard event and for which the building contractor is in fact granted an extension of time
Outputs / Specific targets and objectives agreed between the Council and the Agency specified in Schedule 3.
Permitted Disposal / the transfer of the freehold or the grant of a lease for a term of 125 years or more of a Starter Home subject to the Starter Homes Conditions.
Planning Obligation / Means a planning obligation (including a unilateral undertaking where appropriate) made pursuant to Section 106 Town and Country Planning Act 1990
Pre-Conditions / Conditions set out in Schedule 4 (where applicable) which must be met by the Council to the satisfaction of the Agency in connection with the Project and approved in writing with the Agency prior to the submission of a Claim.
Pre-existing
Intellectual
Property
Rights / Any Intellectual Property provided or used by the Council in connection with the Project which exists as at the date of the Agreement.
Principal Contractor / The person defined as such under the CDM Regulations
Principal Designer / The person defined as such under the CDM Regulations
Programme / The delivery of Starter Homes on the Land
Programme
Completion
Date / The date on which practical completion of the last of the Starter Homes takes place.
Project / The project to which the Funding relates, details of which are set out in section 1.4 of the letter
Project Completion / means the practical completion of the works comprising the Project
Project Completion Date / The date by which Project Completion is to be achieved as set out in paragraph 1.4and Schedule3 (subject to any extension approved in writing by the Agency)
Public Sector Funding / means any funding received or receivable by the Council or any development partner of the Council to finance any part of the Project from public sector bodies including funding from the European Commission, government bodies (whether national or local) or bodies in receipt of lottery funds from the National Lottery Distribution Fund pursuant to the National Lotteries Act 1993 and 1998 and from the housing market renewal budget
Regulatory Body / any UK or EU Government department or agency or any other regulatory body having jurisdiction whether regional, national or local and including, but not limited to, the Department for Communities and Local Government, UK central Government, the European Commission or any successor such department, agency or regulatory body which, whether under statute, rules, regulations, codes of practice or otherwise, is entitled to regulate, investigate, or influence the matters dealt with in this Agreement or any other affairs of the Agency
Request
for Information / has the meaning in the FOIA or the EIR or any apparent request for information under the FOIA or the EIR or the Code of Practice on Access to Government Information (Second Edition)
Start on Site Works / Means
Excavation for strip or trench foundations or for pad footings;
Digging out and preparation of ground for raft foundations;
Vibroflotation, piling, boring for piles or pile driving;
Drainage work specific to the development of the Land for Starter Homes; or
Infrastructure works and demolition works (where these works are included in the main house building contract or development agreement) for example drainage, on-site highway works and open spaces.
Starter Home / Means a residential unit constructed on the Land with the intention of it being a Starter Home for the purposes of the Starter Homes Exception Sites Planning Policy and/or any applicable legislation and Starter Homes shall be interpreted accordingly
Starter Homes Conditions / Means conditions prohibiting the occupation and use of a residential unit other than in accordance with Starter Homes Exception Sites Planning Policy
Starter Homes Exception Sites Planning Policy / Means HM Government’s Starter Homes Exception Sites Planning Policy as updated and amended from time to time
Title Letter / A letter signed by the Council’ssolicitor in respect of the Land in the form attached at Appendix 2
Unauthorised
Use / Any use of the Land other than for development of Starter Homes pursuant to the Starter Homes Exception Sites Planning Policy
Unlawful Use / Any use for which the necessary consents have not been granted by the Agency or any Regulatory Body or any other person
SCHEDULE 2
DETAILED TERMS AND CONDITIONS OF FUNDING
1
- Pre-conditions of Funding
The Agency is under no obligation to make any Funding available unless the Pre-conditions detailed in Schedule4 are satisfied.
- Warranties And Representations
In accepting this offer (and every time the Council submits a claim form) the Council warrants and confirms to the Agency that;
2.1The Councilis a legally constituted body and the Council has the full capacity and authority and all necessary consents to enter into and perform the obligations on the Council under this Agreement and the Council acknowledges that they constitute valid, legal and binding obligations of and on the Council and are enforceable against the Council;
2.2All information, documents and accounts provided by the Council or on the Council’s behalf, from time to time are and will be true, valid and correct;
2.3The Councilis not in breach of any law or regulation agreement or obligation which affects or may affect the Council’s ability to commit to this Agreement;
2.4The Councilis not under any statutory obligation to carry out the Project or any part of it;
2.5The Councilis not aware of any fact or circumstance that may affect the successful completion of the Project;
2.6The Council will ensure that all the necessary consents and licences (if any) are in place and maintained for the duration of the Project without limitation.
2.7The Council will ensure that all necessary planning consents and property licences for the Project are in place and maintained for the duration of the Project. If any such consents or licences are varied in any way or revoked the Council must inform the Agency in writing immediately.
2.8The Council will comply with EU Procurement Regulations (to the extent that the same apply) including without limitation in the selection of the disponee of a Developer Disposal).
2.9The Council will procure that all contractors comply with EU Procurement Regulations (to the extent that the same apply).