THIS DEED OF AGREEMENT is made ___________ day of _____________ 2003
BETWEEN:
1. WARWICKSHIRE
COUNTY COUNCIL of PO Box 9, Shire Hall,
2. MININVEST PLC (Company No 03224492) whose registered office is at Edwards Centre, The Horsefair, Hinckley Leicestershire LE10 0AN (“the Owner”)
WHEREAS
1. The
Owner is the registered proprietor at H M Land Registry of a site at the south
side of Tuttle Hill,
2. The County Council is the highway and public transport authority for the area within which the Site is located and is also a local planning authority
NOW THIS DEED WITNESSETH as follows:
1. Interpretation
1.1 In this Agreement the following words and expressions have the following meanings:
|
1.1.1 |
“the Act” |
the Town and Country Planning Act 1990 as amended |
|
1.1.2 |
“the Application” |
the application for planning permission to develop the Site under the reference TP/0296/02. |
|
1.1.3 |
“Auditor” |
an independent person or organisation chosen by the Owner and approved by the County Council, such approval not to be unreasonably withheld, to carry out at the expense of the Owner audit and verification work as provide d for in Clause 5 hereof. |
|
1.1.4 |
“the Commencement Date” |
the date upon which the Development shall be commenced by the carrying out on the Site pursuant to the Planning Permission of a material operation as specified in section 56 (2) of the Act (but not including any operations to demolish any existing buildings clean up contamination or clear the Site) |
|
1.1.5 |
“the Development” |
outline permission to develop the Site for employment, residential, leisure and recreational uses |
|
1.1.6 |
“Employee” |
a person employed on the site for at least thirty-five hours per week a) under a permanent contract of employment b) under a temporary contract of employment of at least six months duration and, for the avoidance of doubt, the definition excludes visitors from other businesses and “Employees” shall be construed accordingly. For the avoidance of doubt the term "Employee" shall include persons who are self employed. |
|
1.1.7 |
“the Excess” |
the number of cars used for commuting to work at the Site in excess of the following target percentages of the Employees on the Site (number of cars divided by number of Employees multiplied by 100) i) One month after first occupation of Units – 68% ii) First anniversary of first occupation of Units – 66% iii) Fourth anniversary of first occupation of Units – 64% v) Fifth anniversary of first occupation of Units – 60% |
|
1.1.8 |
“the Transport Contribution” |
£50,000 Index
Linked as a contribution to the cost of construction by the County Council of
a footpath and cycleway link from the site to |
|
1.1.9 |
“the Travel Plan Co-ordinator” |
a person designated by the Owner whose objective is to implement the Travel Plan. The appointment will include presentation of the plan to Employees and liaison with the County Council |
|
1.1.10 |
Travel Plan |
a plan drawn up by the Owner in consultation and agreement with the County Council in substantially the form set out in the Second Schedule hereto |
|
1.1.11 |
“the Travel Plan Working Group” |
a group of employees representing the staff working on the Site who will work with the Travel Plan Co-ordinator to achieve the Travel Plan objectives |
|
1.1.12 |
“Index Linked” |
the percentage change in the Baxter index published by the ODPM between the ate of the agreement and the date of payment of a sum due under agreement |
|
1.1.13 |
“the Planning Permission” |
the permission
to be granted pursuant to the Application reference TP/0296/02 to |
|
1.1.14 |
“the Site” |
the land edged in red on the plan annexed hereto |
1.1.15 "Units" offices or other premises where Employees shall be
located.
1.2 Words and phrases used in this Agreement which are defined in the Act shall have the meanings ascribed to them in the Act
1.3 Headings to clauses are for information only and shall not affect the interpretation of this Agreement
1.4 The obligations contained in this Agreement shall come into effect upon the Commencement Date
1.5 References to any party in this Agreement shall include the successors in title to that party
1.6 The masculine feminine and neuter genders include each of the other genders and the singular includes the plural and vice versa
2. This Agreement is made pursuant to section 106 of the Act and the obligations contained in this deed are planning obligations for the purposes of that section
3. The County Council is the local planning authority by which the planning obligations contained in this deed are enforceable
4. The Travel Plan
4.1 The Owner covenants with the County Council and with the District Council:
4.1.1 To implement the Travel Plan at all times from the first occupation of Units on the Site
4.1.2 To designate a person to work at the Site as the Travel Plan Co-ordinator and to notify his name, address, office and telephone number to the County Council.
4.1.3 To establish the Travel Plan Working Group as soon as eight Units have been occupied
4.2 The County Council covenants with the Owner that any payment made to it under clause 5 hereof shall be put towards the provision of sustainable transport measures to and from the Site and for no other purpose
5. The Owner further covenants with the County Council:
5.1 Within one month of the first occupation of six or more Units on the Site and on the first, second, third and fourth anniversaries of that date the Owner shall count the number of Employees on the Site. These dates shall be called the survey dates.
5.2 On each survey dated the Owner shall ask all Employees to complete a questionnaire supplied by the County Council and shall return copies of the completed questionnaires to the Council and to the Auditor. Any Employee who does not complete a questionnaire shall be deemed to be travelling to the site in a car without carrying any other Employee with him.
5.3 The Auditor shall calculate the Excess and shall certify it to the County Council.
5.4 For such periods between survey dates as there is an excess the Owner shall use its best endeavours to reduce the Excess.
5.5 The Owner shall pay to the County Council £22.50 per Employee in the Excess per week until the next survey date save that if the Auditor is satisfied that the Excess has been reduced between survey dates and so certifies to the County Council the total sum payable shall be amended to accord with the reduced Excess with effect from the date of the certificate until the next survey date.
5.6 During the twelve months following the fifth survey date the Owner shall continue to pay to the County Council £22.50 per employee in the Excess per week until the fifth anniversary of the first survey date save that if the Auditor is satisfied that the Excess has been reduced during that time and so certifies to the County Council the total sum payable shall be amended to accord with the reduced Excess with effect from the date of the certificate until the fifth anniversary of the first survey date.
5.7 The Owner will use all reasonable endeavours to ensure that the Auditor shall carry out its own independent verification of Employees as they enter and leave the site on at least one occasion in each year between survey dates in accordance with arrangements to be made between the Auditor and the County Council.
5.8 The payment of £22.50 per Employee shall be Index Linked on each survey date.
5.9 Ten per cent shall be added to all payments made to the County Council to cover its administrative costs.
5.10 No payments shall be made for any period after the fifth anniversary of the first survey date.
6. The Transport Contribution
6.1 The Owner further covenants with the County Council that if within seven years of the Commencement Date construction of a footpath and cycleway link from the Site to Vernons Grove, Nuneaton is begun it will upon the service on it of written notice thereof by the County Council pay to the County Council the Transport Contribution. Provided that if the Owner after using all reasonable endeavours (and other than at the expense of the County Council) is unable to procure agreement on reasonable terms with British Waterways Board to construct a bridge over the canal adjacent to the Site in order to connect the said footpath and cycleway link to Vernons Grove within five years from the date of this Agreement then the County Council may at its absolute discretion apply the Transport Contribution to such other public transport or highway purposes as it deems appropriate.
6.2 If the Transport Contribution is not paid within 60 days of the service of the aforesaid written notice by the County Council then from that date in addition interest thereon at the rate of 2 per centum per annum above the base rate for the time being of HSBC Bank Plc shall be paid
6.3 The County Council covenants with the Owner that the Transport Contribution shall be used solely for the aforesaid purposes and if the whole or any part thereof is not so used within two years of the date of payment then such amount shall be repaid to the Owner together with the interest accrued thereon at the aforesaid rate
7. Legal Costs
The Owner shall pay the costs of the County Council in respect of the preparation and completion of this Agreement.
8. It is hereby agreed and declared that:
8.1 The obligations contained in this Agreement shall terminate and cease to be of effect if the Planning Permission expires prior to the Commencement Date or shall be quashed by the High Court or revoked or otherwise withdrawn or modified
8.2 No person shall be liable for any breach of the covenants restrictions or obligations contained in this Agreement occurring after he has parted with this interest in the Site
8.3 For the purposes of the Contracts (Rights of Third Parties) Act 1999 it is agreed that nothing in this Agreement confers on any third party any benefit or right to enforcement of this Agreement
8.4 Any disputes or differences arising between the parties with regard to their respective rights and obligations as to any matter or thing arising out of this Agreement shall be referred to the decision of a person to be agreed by the parties or (failing agreement between them) to be nominated by the President or Vice-President for the time being of the Law Society. Such person shall act as an expert and his decision shall be final and binding on the parties hereto.
8.5 Nothing in the Agreement shall prohibit or limit the right to develop any part of the Site in accordance with a planning permission (other than one relating to the Development as specified in the Application) granted (whether or not on appeal) before or after the date of this Agreement
8.6 This Agreement shall be registered as a local land charge