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. 8744735.67
Contents Page
1 Definitions and interpretation 1 1.1 Definitions 1 1.2 Interpretation 5 2 Requisite consents 65 2.1 Application for Requisite Consents 65 2.2 Appeal against refusal 65 2.3 Landlord to give Tenant copies 6 2.4 Qualified or conditional consents 6 3 Landlord’s Works 6 3.1 Execution of works 6 3.2 Outstanding Landlord’s Works 6 3.3 Standard of works 76 3.4 Variations 7 3.5 Materials may be substituted 7 3.6 Variations to Landlord’s Works 7 3.7 Japanese Knotweed Management Programme 87 3.8 Meaning of Landlord in this clause 8 4 CDM Regulations 8 4.1 Application of this clause 8 4.2 Election as only client 8 4.3 Fulfilment of duties as client 8 4.4 Records 8 5 Variations to the Landlord’s Works 98 5.1 No variations without consent 98 5.2 Variations required by law 98 5.3 Substituted materials 9 5.4 Notification of variations 9 6 Practical completion 9 6.1 Notice of inspection 9 6.2 No fetter on discretion 109 6.3 Issue of certificates 109 6.4 Rectification 10 6.5 Tenant's Representations 10 6.6 Issue of Certificate of Making Good 10 7 Tenant’s Extras 1110 7.1 Tenant’s Extras - meaning 1110 7.2 Tenant’s request 11 7.3 Payment for Tenant’s Extras 11 7.4 Construction Industry Scheme 1211 8 Insurance 12 9 Tenant's Works and early access licence 12 9.1 Schedule 3 applies 12 9.2 Occupation licence 1312 9.3 Further occupation licence 13 9.4 Tenant’s obligations pending grant 13 9.5 Covenant to vacate if licence ends 1413 10 Completion of Lease 14 10.1 Agreement to grant and accept 14 10.2 Engrossments and execution 14 10.3 Completion: location and timing 1514 10.4 Term and rent commencement 1514 10.5 Service charge and insurance rent - commencement 15 11 Condition surveys 15 11.1 Landlord's Works 15 11.2 Tenant's Works 1615 12 Title 16 13 Restrictions etc. 16 13.1 Matters affecting the Premises 16 13.2 Restrictions 1716 13.3 No warranty as to compliance 1716 13.4 No dilution of Tenant’s obligations 1716 13.5 Encumbrances 17 13.6 No enquiry or objection 17 14 Conditions 17 14.1 Further definition 17 14.2 Incorporation/disapplication 1817 15 No assignment 18 15.1 Covenant restricting alienation 18 15.2 Personal covenant to take Lease 18 16 Notices 18 16.1 Form and addresses 18 16.2 Deemed time of receipt 1918 16.3 Burden of proof 1918 16.4 No service by e-mail or by fax 19 17 Continuing obligations 19 18 Contracts (Rights of Third Parties) Act 1999 19 18.1 No third party rights 19 18.2 Parties may vary 19 19 Representations 19 20 Termination on default 20 20.1 Event of Default 20 20.2 Landlord may rescind 21 20.3 Effect of rescission 21 2120 Step In Provisions 2120 2221 Disputes 21 2221.1 Parties must try to resolve by agreement 21 2221.2 Meaning of Independent Person 21 2221.3 Appointment by third party 21 2221.4 Arbitrator not expert 232 21.5 Expert provisions if needed 232 21.6 Costs 2322 2322 Interest 2322 2423 VAT 2424 23.1 Exclusive of VAT 2422 24.2 Reimbursement 2423 2524 Entire agreement 23 2425.1 Old agreements superseded 23 2425.2 Duplicates 2423 2625 Upcycling Activities 2423 Schedule 1 - Description of Landlord’s Works 2625 Schedule 2 - Description of Tenant's Works 2726 Schedule 3 - Tenant’s Works Conditions 2827 Schedule 4- The Tenant's Fit-Out Works 3231 Annexure 1 - Form of lease 3332 Annexure 2 - Form of Licence for Alterations 3433 Annexure 3 – List of Parties required to give Collateral Warranty37Not used 36 Annexure 4 – Agreed forms of Collateral Warranty38Not used 37 Annexure 5 – Deed of Indemnity 3938 Annexure 6 – Not Used 4039 Annexure 7 – Not used 4140 Annexure 8 – JK Management Contract 4241 Annexure 9 – Plan referred to in clause 10.3.2439.3.2 42
Agreement for lease
Dated 2015
Parties
Thanet District Council of Cecil Street, Margate, Kent CT9 1XZ (the Landlord); and
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
Definitions and interpretationDefinitions and interpretation
In this Agreement the following words and expressions have the meaning specified unless the context requires otherwise.
DefinitionsDefinitions
Building Contract means 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
8 8744735.67 SI 2005/2045;
Collateral Warranty means the deed of collateral warranty from the parties identified in Annexure 3 to this Agreement together with any replacement party that may from time to time be appointed by the Landlord or the relevant building contractor (appointed under the Relevant Building Contract) such deed to be in the agreed forms annexed to this Agreement at Annexure 4 with such amendments as may be approved by the Tenant (such approval not to be unreasonably withheld);
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:
the date of the Main Works Certificate of Practical Completion;
the date of the Railway Works Certificate of Practical Completion; and
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 means the 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
9 8744735.67 are to be carried out after Lease completion a brief description of 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 means the 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 means the 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 means the land known as Dreamland Amusement Centre, Marine Terrace, Margate, Kent more 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 means all consents, licences, permissions and approvals of a public or private nature which may from time to time be required in respect of:
1. the Landlord’s Works and each and every stage or phase of the Landlord’s Works;
10 8744735.67 (if the same are destroyed or damaged) the reinstatement of the Landlord’s Works; and
the grant of the Lease and the term Requisite Consent is to be construed accordingly;
Restrictions means all 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 means the 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 means Cripps LLP of Wallside House, 12 Mount Ephraim Road, Tunbridge Wells, TN1 1EG (Ref: CNH/SA505721);
Tenant’s Works means such of those works being 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 means any day except Saturdays and Sundays and which is not Christmas Day, Good Friday or a statutory bank holiday or public holiday and working
11 8744735.67 days shall be construed accordingly; and
VAT means value added tax or any tax of a similar nature which may be substituted for or levied in addition to it.
InterpretationInterpretation
Any 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.
References in this Agreement 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 this Agreement and not as originally enacted or as at the date of this Agreement.
References 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.
The headings above the clauses and the contents pages of this Agreement are for reference only and do not affect its construction.
Any reference to a clause or schedule without further designation is a reference to a clause or schedule of this Agreement.
The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement.
Unless the context requires otherwise, words in the singular shall include the plural and in the plural shall include the singular.
A reference to writing or written includes fax but not email.
Unless 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.
Requisite consentsRequisite consents
Application for Requisite ConsentsApplication 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.
Appeal against refusal Appeal against refusal
12 8744735.67 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.
Landlord to give Tenant copiesLandlord 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.
Qualified or conditional consentsQualified 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.
Landlord’s WorksLandlord’s Works
Execution of worksExecution of works
The Landlord will procure that the Date of Practical Completion occurs by the Target Date except for the Post Completion Works.
Standard of worksOutstanding Landlord’s Works
The Landlord and Tenant agree:
That 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”).
The Schedule shall be signed by both parties and in consultation with each party’s professional advisers, the parties shall agree:
the cost of carrying out the Outstanding Works; and
the programme for completion of the Outstanding Works.
The 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.
Standard of worksStandard of works
The Landlord will use reasonable endeavours to procure that the Landlord’s Works are carried out:
in conformity with all Requisite Consents;
with due diligence in a good and workmanlike manner
13 8744735.67 in accordance with good building and other relevant codes of practice and only using good quality materials and well maintained plant;
in accordance with:
all statutes and relevant enforceable codes of practice of the local authority and any other competent authority;
the terms of this Agreement.
VariationsVariations
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.
Materials may be substitutedMaterials 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.
Error: Reference source not foundVariations to Landlord’s Works
The 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”).
The Landlord and Tenant acknowledge that the Variations are correctly identified in the document attached entitled [“Agreed “Schedule of Variations to Landlord’s Works”] (“the Variation Schedule”).
The 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.
Japanese Knotweed Management ProgrammeJapanese Knotweed Management Programme
The 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.
The 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.
14 8744735.67 Meaning of Landlord in this clauseMeaning 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).
CDM RegulationsCDM Regulations
Application of this clauseApplication 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.
Election as only client Election 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.
Fulfilment of duties as clientFulfilment of duties as client
The Landlord will in relation to the Landlord’s Works perform in all respects the duties of a client under the CDM Regulations.
The 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.
RecordsRecords
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.
Variations to the Landlord’s WorksVariations to the Landlord’s Works
No variations without consentNo variations without consent
The Landlord may not make any variation (that is to say alteration or addition to or omission of any thing from the Specification or the use of any materials in substitution for any specified in the Specification) without the consent of the Tenant, such consent not to be unreasonably withheld or delayed, except as permitted under clauses 3.3, 5.2 and 5.3.
Variations required by lawVariations required by law
The Landlord may, without having to obtain the prior approval of the Tenant, make variations alterations or additions to the Specification that are of an insubstantial, immaterial or routine nature or that are lawfully required by any competent authority.
15 8744735.67 Substituted materialsSubstituted materials
If at any time any materials specified in the Specification are or become:
in short supply;
unobtainable or an adequate supply of them cannot be guaranteed;
subject to delay and if awaited would or might impede materially the progress of the Landlord’s Works; then the Landlord may (without the approval of the Tenant being required) use alternative materials of equivalent or superior standard.
Notification of variationsNotification of variations
The Landlord will notify the Tenant of any variation made in accordance with this clause within a reasonable time.
Practical completionPractical completion
Notice of inspectionNotice of inspection
The Landlord will in each case give notice (and use reasonable endeavours to give at least 5 Working Days’ notice) to the Tenant of the Contract Administrator's intention to inspect the Landlord's Works for the purpose of issuing each 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 so that the Tenant and its surveyors may inspect the Landlord’s Works and consider whether the Landlord’s Works have been completed in accordance with this Agreement.
The Tenant and its surveyor may attend the inspections referred to in clause 6.1.1 and make representations either during an inspection or in writing immediately thereafter.
No fetter on discretionNo fetter on discretion
Without fettering the discretion of the Contract Administrator in carrying out its duties under the relevant Building Contract the Landlord shall procure that the Contract Administrator takes proper account of any reasonable representations made in accordance with clause 6.1.2 when considering whether or not to issue a Certificate of Practical Completion.
Issue of certificatesIssue of certificates
The Landlord shall procure that a copy of each Certificate of Practical Completion is issued to the Tenant as soon as practicable following the issue of the same together with a copy of any accompanying snagging list.
16 8744735.67 RectificationRectification
The Landlord shall use reasonable endeavours to enforce the building contractor obligations under the relevant Building Contract to remedy any defects, shrinkages or faults appearing in the Landlord's Works during the Rectification Period.
The Landlord shall use its best endeavours to enforce the terms of each of the Main Works Building Contract the Railway Works Building Contract and the Trains and Tracks Contract to ensure the completion of all of the works identified under such contracts in accordance with their respective terms but subject always to the Variation Schedule.
Tenant's RepresentationsTenant's Representations
During the Rectification Period the Tenant or the Tenant's surveyor may make written representations to the Contract Administrator identifying defects, shrinkages or faults in the Landlord's Works which the relevant building contractor is obliged to remedy in accordance with the relevant Building Contract. Without fettering the discretion of the Contract Administrator in carrying out duties under the relevant Building Contract, the Landlord shall use reasonable endeavours to ensure that the Contract Administrator takes proper account of any such representations.
Issue of Certificate of Making GoodIssue of Certificate of Making Good
The Landlord shall use reasonable endeavours to procure that the Contract Administrator:
gives at least five (5) working days' notice to the Tenant of the Contract Administrator's intention to inspect the Landlord's Works for the purpose of issuing a Certificate of Making Good and allows the Tenant and the Tenant's surveyor to attend the inspection and make representations either during the inspection or in writing immediately thereafter; and
without fettering the discretion of the Contract Administrator in carrying out duties under the relevant Building Contract, takes proper account of any representations that are made in accordance with clause 6.6.1 when considering whether to issue a Certificate of Making Good in accordance with the terms of the relevant Building Contract.
The Landlord shall procure that the Contract Administrator gives a copy of any Certificate of Making Good to the Tenant as soon as practicable after its issue.
6.8 The Landlord shall procure the grant of the Collateral Warranty in favour of the Tenant prior to the Completion Date.
1. 6.9The Tenant will use its best endeavours to provide collateral warranties in favour of TDC where these are available in respect of Tenant's Works.
17 8744735.67 Tenant’s ExtrasTenant’s Extras
Tenant’s Extras - meaningTenant’s Extras - meaning
For the purposes of this clause 7, Tenant’s Extras means any works requested after the date of this Agreement by the Tenant additional to or in modification of the Landlord’s Works but does not include any fitting out works nor any other Tenant’s Works.
Tenant’s requestTenant’s request
The Tenant may request the Landlord to incorporate Tenant’s Extras in the Landlord’s Works but the Landlord has an absolute discretion whether or not to comply with the request.
Payment for Tenant’s Extras Payment for Tenant’s Extras
The Tenant will pay to the Landlord within 20 Working Days of written demand supported by a valid VAT invoice all costs properly incurred by the Landlord in considering a request for Tenant's Extras; whether or not such request is refused or the Tenant elects not to proceed.
The Tenant will in addition pay the costs and incidental expenses of the Tenant’s Extras to the Landlord as they are properly incurred and as to which:
payment is to be made against Contract Administrator's certificates of the costs and incidental expenses within 20 Working Days of the issue of the Contract Administrator's certificates to the Tenant; but
the Tenant will be given a credit against the costs and incidental expenses of the Tenant’s Extras to the extent that there are consequential savings on the cost of the Landlord’s Works as a result of the Tenant’s Extras; and
the certificate of the Contract Administrator as to the costs and incidental expenses of the Tenant’s Extras and any savings as referred to in clause (b) will be final and binding on the parties except in the case of manifest error.
Construction Industry SchemeConstruction Industry Scheme
The Tenant warrants that payments for Tenant's Extras are not contract payments for the purposes of the Construction Industry Scheme.
All sums payable by the Tenant to the Landlord under clause 7.3 shall be paid free and clear of all deductions or withholdings of any kind, save as may be required by law.
Should the Tenant be required by law to make a deduction or withholding under the Construction Industry Scheme from any payment referred to in this clause, the Tenant shall provide such evidence of the relevant withholding as the Landlord may reasonably require and shall pay to the Landlord such sum
18 8744735.67 as will, after the deduction or withholding has been made, leave the Landlord with the same amount as the Landlord would have received had no deduction or withholding been made.
Insurance Insurance
From the date of this Agreement until the Date of Practical Completion the Landlord shall insure or shall procure that the relevant building contractor insures the Landlord's Works, the Premises and all plant and unfixed materials and goods delivered to or placed on or adjacent to the Premises and intended for incorporation in the Landlord's Works against all perils resulting in loss or damage thereto on customary contractors' all risks terms:
in the joint names of the Landlord and the relevant building contractor or otherwise in accordance with the building contract terms; and
for not less than their full reinstatement value (taking into account the progress of the Landlord's Works) together with all site clearance and professional fees incurred in connection with such reinstatement.
In the event of any loss or damage occurring before the Date of Practical Completion to the Landlord's Works the Premises, plant, materials or goods so insured the Landlord shall procure that their reinstatement or replacement is carried out diligently and with all reasonable speed. The Landlord shall apply the proceeds of the insurance towards such reinstatement or replacement and shall make good any deficiency out of the Landlord's own funds.
Tenant's Works and early access licenceTenant's Works and early access licence
Schedule 3 appliesSchedule 3 applies
The provisions of schedule 3 are to apply to the Tenant’s Works.
The Tenant may without having to obtain the prior approval of the Landlord make variations alterations or additions to the Tenant’s Works that are:
of an insubstantial immaterial or routine nature; or
lawfully required by any competent authority; or
necessary in order to substitute materials with alternate materials of equivalent or superior standard where original materials are or become in short supply, unobtainable or subject to delay.
Occupation licenceOccupation licence
The Tenant may occupy the Premises as a non-exclusive licensee from and including the date hereof solely in order to carry out and complete the Tenant’s Works but:
the Tenant does not have, nor is entitled to any, estate, right or interest in the Premises either as completed or in the course of construction; and
19 8744735.67 the licence created by this clause 9.2 will determine on written notice given by the Landlord to the Tenant to that effect or on the occurrence of any Event of Default.
Further occupation licenceFurther occupation licence
From the date of completion of such part of the Tenant’s Works that will enable the Tenant to use the Premises for the purposes permitted under the Lease and in any event from 2015, the Tenant may occupy the Premises as a non-exclusive licensee until completion of the Lease and use them solely for the purposes authorised by the Lease.
From the date hereof and until completion of the Undercroft Lease (as that term is defined in the Lease) the Tenant will be entitled to occupy that part of the Landlord’s Estate which is shown coloured yellow on the Plan attached and use it for the purposes described under the Undercroft Lease in order to facilitate the operation and use of the Premises under the Lease.
Tenant’s obligations pending grantTenant’s obligations pending grant
Until the grant of the Lease and subject to clause 9.4.3:
the parties are liable to observe and perform the same obligations as are imposed by the covenants on their respective parts and the conditions to be contained in the Lease and exercise the same rights and reservations as they become applicable to the Premises and insofar as they are not inconsistent with this Agreement;
each party is entitled to all remedies by distress, action, or otherwise for recovering any monies or for the breach of obligation as if either party had been granted; and
the Tenant will not be liable to the Landlord to pay any rents or comply with any covenant or condition in the Lease during any period whether prior to or after completion of the Lease when the Tenant’s occupation of the Premises is suspended or prevented as a result of the Landlord carrying out the Landlord’s Works.
Covenant to vacate if licence endsCovenant to vacate if licence ends
Immediately on termination of the licence created by this clause 9, (unless the Lease has been granted) the Tenant will vacate the Premises and forthwith remove all and any materials, goods, employees, works, partially completed works, plant and equipment at or installed in the Premises by or on behalf of the Tenant (making good any damage caused to the Premises in doing so to the reasonable satisfaction of the Landlord) and will (at its own cost) reinstate the Premises to as good a state of repair and condition as they were in immediately before the Tenant took occupation.
When the Tenant has prepared a specification of the Tenant’s Fit Out Works it shall submit the details to the Landlord for approval. The Landlord shall not unreasonably
20 8744735.67 withhold or delay its consent to the Tenant’s Fit Out Works and such consent shall be granted in the form of the Licence for Alterations.
If the Tenant occupies the Premises in accordance with this clause 9, the Tenant shall be entitled to carry out the Tenant's Fit-Out Works in addition to the Tenant's Works and the terms and conditions of the Licence for Alterations will apply to the Tenant's Fit-Out Works.
If the terms of any planning permission licence or consent (other than this licence) obtained for the Tenant’s Works and/or the Tenant's Fit-out Works require any other works to be carried out to the Premises the Tenant will be entitled to carry out such other works.
The terms of Schedule 3 will apply to the carrying out of such other work as if they formed part of the Tenant's Works.
The terms of the Licence for Alterations will apply to the carrying out of such other works as if they formed part of the Tenant's Fit-Out Works.
For the avoidance of doubt, there shall be no requirement on the Tenant to obtain the consent of the Landlord to such other works pursuant to this Agreement or the Lease.
Completion of Lease Completion of Lease
Agreement to grant and acceptAgreement to grant and accept
The Landlord will grant and the Tenant will accept the Lease on Completion.
On Completion to the extent that any such documents have not already been completed the parties will also enter into and complete:
the Licence for Alterations (if applicable at that time);
the Deed of Indemnity;
the Concession Agreement
Engrossments and executionEngrossments and execution
The Landlord will instruct the Landlord’s solicitors to prepare engrossments of the original and counterpart of the Lease (which shall include Land Registry compliant plans) and the Licence for Alterations. The Tenant will promptly execute the counterpart(s) of the Lease and the Licence for Alterations on receipt preparatory to the grant of the Lease.
Completion: location and timingCompletion: location and timing
The Lease and the Licence for Alterations (if applicable at that time) will be completed at the offices of the Landlord’s Solicitors or at such other place as the Landlord’s Solicitors reasonably require on the Date of Completion.
21 8744735.67 Term and rent commencementTerm and rent commencement
The term of the Lease will commence on the earlier of the date of Completion of the Lease and the date on which the Tenant occupies the Premises under clause 10.39.3;
The rent commencement date in the Lease shall be the date which falls on the seventh anniversary of the date upon which the Tenant is given occupation and use of the Premises under clause 10.39.3.
1. Service charge and insurance rent - commencementService charge and insurance rent - commencement
Any service charge and insurance rent payable under the Lease will commence to be payable from the date of commencement of the term of the Lease as calculated in clause 10.4 but subject always to the provisions of clause 10.4.3 9.4.3 and such date will be inserted where indicated in the Lease accordingly.
Condition surveysCondition surveys
Landlord's WorksLandlord's Works
Following practical completion of the Landlord's Works in accordance with this Agreement, the Landlord will commission a chartered building surveyor to prepare a schedule of condition recording the state of repair and condition of the Premises for the purposes of clause 3.3 of the Lease (the First Schedule of Condition).
The First Schedule of Condition shall contain photographs and written statements describing the state of repair and condition of the Premises.
The parties shall (acting reasonably) collaborate together in good faith and agree the First Schedule of Condition as soon as possible after it has been prepared.
In the event that the parties cannot agree the First Schedule of Condition within 30 days after the date of practical completion of the Landlord's Works then in respect of any matters which are not agreed between the parties either party shall be entitled to request that the same is determined by an Independent Person in accordance with clause 201.
1.1.1 Following agreement or determination of the First Schedule of Condition pursuant to this clause, both parties shall ensure that the First Schedule of Condition shall be annexed to their respective counterparts of the Lease.
Tenant's WorksTenant's Works
Following practical completion of the Tenant's Works in accordance with this Agreement, the Tenant will commission a chartered building surveyor to prepare a schedule of condition recording the state of repair and condition of the Premises for the purposes of clause 3.3 of the Lease (the Second Schedule of Condition).
22 8744735.67 The Second Schedule of Condition shall contain photographs and written statements describing the state of repair and condition of the Premises.
The parties shall (acting reasonably) collaborate together in good faith and agree the Second Schedule of Condition as soon as possible after it has been prepared.
In the event that the parties cannot agree the Second Schedule of Condition within 30 days after the date of practical completion of the Tenant's Works then in respect of any matters which are not agreed between the parties either party shall be entitled to request that the same is determined by an Independent Person in accordance with clause 20.
Following agreement or determination of the Second Schedule of Condition pursuant to this clause, both parties shall ensure that the Second Schedule of Condition shall be annexed to their respective counterparts of the Lease.
Title Title
The Landlord has deduced title to the Premises and the Tenant accepts it and may not raise any requisition or objection to the title.
The Landlord shall grant the Lease with full title guarantee.
Restrictions etc.Restrictions etc.
Matters affecting the PremisesMatters affecting the Premises
The Lease will be granted free from incumbrances subject to and the Tenant or the Tenant’s Solicitors will raise no objection requisition or enquiry in respect of:
the matters set out or referred to in the schedule 3 of the Lease;
those matters discoverable by inspection of the Premises before the date of this Agreement including (but not limited to) interests that are listed in Section 90 of and either schedule 1 or schedule 3 to the Land Registration Act 2002 (as appropriate);
those matters that the Landlord does not know about (whether or not the Landlord ought reasonably to know about them); and
entries other than those relating to monetary charges or incumbrances made before the date of this Agreement in any public register.
RestrictionsRestrictions
The Lease will be granted subject to all (if any) Restrictions (whether in existence at the date of this Agreement or arising at any later date).
No warranty as to complianceNo warranty as to compliance
23 8744735.67 No representation is made or warranty given by the Landlord as to whether or not any Restrictions exist or as to the permitted use of the Premises for planning purposes or as to whether in other respects the Premises comply with any Restrictions.
No dilution of Tenant’s obligationsNo dilution of Tenant’s obligations
The Tenant acknowledges that its obligations under this Agreement and the Lease will not be affected or lessened in any way by the fact that there may now or subsequently exist any Restrictions or any non-compliance with any Restrictions. To the extent that compliance with any Restrictions would be the Tenant’s responsibility under the Lease the Tenant indemnifies the Landlord against all costs and liabilities arising from any non-compliance by the Tenant with any Restriction but this indemnity shall not extend to any non-compliance with any Title Restrictions. For the avoidance of doubt nothing in this agreement shall impose any obligation on the Tenant to comply with the Title Restrictions or impose any liability on the Tenant arising from or as a result of the Title Restrictions.
EncumbrancesEncumbrances
The Lease will be granted subject to and with the benefit of (where applicable) all charges, notices, orders, directions, regulations, restrictions, and other matters whatsoever arising under the Planning Acts and the Tenant will be deemed to accept the Lease with full knowledge thereof and of the authorised use of the Premises for the purpose of the Planning Acts and will not raise any requisition enquiry or objection about them other than in respect of matters arising after the date hereto of this Agreement.
No enquiry or objection No enquiry or objection
The Tenant having had an opportunity to obtain details of the matters referred to in this clause 13 the Tenant will be deemed to have notice of them and will not be entitled to raise any requisition in respect of them save that the Landlord shall notify the Tenant and keep the Tenant informed of any changes/actions or events arising in connection with any matter or issue relating to the Title Restrictions as soon as they occur.
ConditionsConditions
Further definitionFurther definition
In this clause the Part 1 Conditions means Part 1 of the Standard Commercial Property Conditions (Second Edition) and Part 2 Conditions means Part 2 of the Standard Commercial Property Conditions (Second Edition).
Incorporation/disapplicationIncorporation/disapplication
The Part 1 Conditions are incorporated in this agreement, in so far as they:
are applicable to the grant of a lease;
are not inconsistent with the other clauses in this agreement; and
24 8744735.67 have not been modified or excluded by any of the other clauses in this agreement.
The Part 2 Conditions are not incorporated in this agreement.
Condition 9.1.1 is varied to read "If any plan or statement in the contract or in written replies which the seller or the seller's conveyancer has given to any written enquiries raised by the buyer's conveyancer before the date of this contract, is or was misleading or inaccurate due to any error or omission, the remedies available are as follows."
The following Part 1 Conditions do not apply to this agreement: 1.2, 1.3, 1.4 and 1.5, 2.2, 3.1.1, 3.1.2, 3.1.3 and 3.3, 6.1, 6.2, 6.3, 6.4.2 and 6.6.2, 7.1.2, 7.1.3 and 7.1.4(b), 9.3 and 10.2.4 and 10.3.
No assignmentNo assignment
Covenant restricting alienationCovenant restricting alienation
The Tenant will not assign or underlet the Tenant’s interest under this Agreement in whole or in part and the Landlord will not be obliged to grant the Lease to any person other than the Tenant.
Personal covenant to take LeasePersonal covenant to take Lease
The Tenant (meaning Sands Heritage Limited) will itself enter into the Lease.
NoticesNotices
Form and addresses Form and addresses
Any notice given under this Agreement must be in writing and must be served by delivering it personally or sending it by pre-paid special delivery post to the address and for the attention of the relevant party as follows:
to the Landlord at the offices of Thanet District Council, quoting the reference Legal Services Manager;
to the Tenant at:
Bridge House, 4 Borough High Street, London Bridge, SE1 9QF marked for the attention of Mr Nick Conington with a copy being sent to the Tenant's Solicitors, quoting the reference CNHSA505721.
Deemed time of receiptDeemed time of receipt
Any such notice will be deemed to have been received:
if delivered personally, at the time of delivery provided that if delivery occurs before 9.00 am on a working day the notice will be deemed to have been received at 9.00 am on that day, and if delivery occurs after 5.00 pm on a
25 8744735.67 working day, or on a day which is not a working day, the notice will be deemed to have been received at 9.00 am on the next working day.
in the case of pre-paid first class or special delivery post at 9.00 am on the second working day after posting.
Burden of proofBurden of proof
In proving service it will be sufficient to prove that delivery was made or that the envelope containing the notice was properly addressed and posted as a prepaid first class or recorded delivery letter, as the case may be.
No service by e-mail or by faxNo service by e-mail or by fax
A notice given under this Agreement will not be validly served if sent by e-mail or by fax.
Continuing obligationsContinuing obligations
Each of the obligations undertaken by the parties to this Agreement will (unless already performed) continue in full force and effect notwithstanding completion.
Contracts (Rights of Third Parties) Act 1999 Contracts (Rights of Third Parties) Act 1999
No third party rightsNo third party rights
Unless the right of enforcement is expressly provided, it is not intended that a third party should have the right to enforce a provision of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
Parties may varyParties may vary
Subject to the Funder’s rights in clause 21 20 the parties may, by agreement, rescind or vary this Agreement without the consent of any third party to whom the right of enforcement of any of its terms has been expressly provided.
Representations Representations
The Tenant acknowledges and agrees that in entering into this Agreement, it does not rely on and will have no remedy in respect of any statement, representation, assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement or in any written replies which the Landlord's Solicitors or the Landlord have given to any enquiries raised by the Tenant's Solicitors before the date of this Agreement. Nothing in this clause will, however, operate to limit or exclude any liability for fraud;
Nothing this clause 19 shall limit or exclude any liability for fraud.
For the purposes of any liability which may arise in respect of the Premises under the contaminated land regime under Part 2A of the Environmental Protection Act 1990 (as amended from time to time) (“the EPA”) the parties
26 8744735.67 acknowledge that the Premises are not “sold with information” to the Tenant.
The Tenant shall not be responsible for any liability under any environmental law including without limitation any liability under the contaminated land regime referred to in clause 20.2.1 above arising in respect of any material substance or organism which alone or in combination with others is capable of causing harm to the environment or which is likely to cause an actionable nuisance whether in on under or emanating from the Premises on or before the date of this Agreement.
For the purposes of clarification the parties acknowledge that the effect of clauses 20.2.1 and 20.2.2 shall mean that:
The Tenant may still have potential liability under the Environmental Protection Act 1990 in its capacity as a “Class B” person under the EPA with or without others with similar liability.
The Tenant will not be treated as a “Class A” person under the EPA.
20 Termination on default20 Termination on default
20.1 Event of Default20.1 Event of Default
20.1.1 For the purposes of this clause an Event of Default occurs if the Tenant suffers Insolvency proceedings (as defined below).
20.1.2 Meaning of Insolvency Proceedings
In this clause in relation to any person Insolvency Proceedings means the taking of any corporate action, legal proceedings or other procedure or steps in relation to any of:
(a) winding-up;
(b) dissolution, administration, or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) except (in the case of a corporation) solvent liquidation or reorganisation;
(c) composition, compromise, assignment, or arrangement with any creditor; or
(d) appointment of a liquidator (except on a solvent liquidation), receiver, administrative receiver, administrator, compulsory manager or similar officer for the person or any part of its assets.
20.2 Landlord may rescind20.2 Landlord may rescind
On the occurrence of an Event of Default, the Landlord may, in addition to any other rights and remedies it may have, rescind this Agreement by giving notice to the Tenant to that effect.
27 8744735.67 20.3 Effect of rescission20.3 Effect of rescission
If the Landlord rescinds this Agreement, this Agreement shall be terminated with effect from the date of the Landlord's notice and neither party shall have any further rights or obligations under this Agreement save in respect of the rights or either party in respect of any prior breach.
2 21Step In Provisions21Step In Provisions
1. 21.1The Landlord shall not exercise, or seek to exercise, any right to:
1. 21.1.1terminate (or treat as terminated) this agreement or its employment under this agreement; or
2. 21.1.2discontinue the carrying out of and completion of the Landlord’s Works (including without limitation discontinue the performance of its obligations under this agreement).
for any reason (including without limitation any breach on the part of the Tenant) without giving the Funder at least 20 Working Days’ notice of its intention do so. Any notice from the Landlord shall specify the grounds for the Landlord’s proposed termination or discontinuance.
2. 21.2The Landlord’s right to terminate this agreement or its employment under this agreement or to discontinue the carrying out of and completion of the Landlord’s Works (including without limitation to discontinue the performance of its obligations under this agreement shall cease if within the period referred to in clause 210.2 the Funder gives notice to the Landlord copied to the Tenant:
1. 21.2.1requiring the Landlord not to terminate this agreement or terminate its employment under this agreement or not to discontinue the carrying out of and completion of the Landlord’s Works;
2. 21.2.2acknowledging that the Funder (or its nominee) will assume all the Tenant’s obligations under this agreement.
3. 21.3If the Funder (or its nominee) serves notice on the Landlord under clause 210.2 then from the date of service of the notice this agreement shall continue in full force and effect as if it had been entered into between the Landlord and the Funder (or its nominee) to the exclusion of the Tenant.
4. 21.4If there is any material failure to comply with the obligations in this Agreement in respect of the Landlord’s Works then the Tenant (acting reasonably) may serve written notice on the Landlord (“a Tenant’s Notice”) requiring the Landlord to either:
1. 21.4.1materially commence the Landlord’s Works within one day of receipt of a Tenant’s Notice where there is a material failure under clause 210.5 (and in such circumstances the Landlord must complete the Landlord’s Works within one week of receipt of that Tenant’s Notice); or
2. 21.4.2complete the Landlord’s Works within one week of the receipt of a Tenant’s Notice where there is a material failure under clause 210.5.
28 8744735.67 and the Tenant may exercise the rights set out in clauses 210.6 and 210.7 below where a Tenant’s Notice is not complied with.
5. 21.5There shall be deemed to be a material failure to complete the Landlord’s Works if the Landlord’s Works are not completed by the Target Date and/or the Post Completion Works are not completed by 2015.
6. 21.6If the Landlord does not comply with a Tenant’s Notice served under either clauses 210.4.1 and 210.4.2 above then the Tenant may (but shall not be obliged to) enter such parts of the Premises as may be necessary and carry out and complete the Landlord’s Works in accordance with the requirements of this agreement.
3 22Disputes 22Disputes
1. 22.1Parties must try to resolve by agreement22.1Parties must try to resolve by agreement
If any dispute arises between the parties arising out of this Agreement the parties will endeavour to resolve the dispute by agreement as quickly as possible but if the dispute has not been resolved within 10 Working Days it will be referred (in the absence of any express provision to the contrary) to an Independent Person appointed jointly by the Landlord and the Tenant.
2. 22.2Meaning of Independent Person22.2Meaning of Independent Person
The Independent Person is to have at least 10 years relevant post qualification experience and his identity will be agreed between the Landlord and Tenant.
3. 22.3Appointment by third party 22.3Appointment by third party
If the parties cannot agree on the Independent Person’s identity he is to be appointed at the request of either the Landlord or the Tenant by the president or chairman for the time being of whichever of the following bodies is most appropriate having regard to the nature of the dispute:
1. 22.3.1The Royal Institution of Chartered Surveyors;
2. 22.3.2The Royal Institute of British Architects;
3. 22.3.3The Institution of Electrical Engineers;
4. 22.3.4The Institution of Structural Engineers;
5. 22.3.5The Institute of Chartered Accountants in England & Wales; or
6. 22.3.6The Law Society of England and Wales.
4. 22.4Arbitrator not expert22.4Arbitrator not expert
Unless expressly stated otherwise in this Agreement the Independent Person is to act as arbitrator in accordance with the Arbitration Act 1996 and the costs of the
29 8744735.67 arbitration will be payable by the parties in the proportions determined by the Independent Person.
5. 22.5Expert provisions if needed22.5Expert provisions if needed
If the Independent Person is to act as expert then the following provisions will apply:
1. 22.5.1the Independent Person will be instructed to allow each party to make representations and counter-representations as to the matters in dispute and to give them due consideration (but the Independent Person is not to be bound by them);
2. 22.5.2the Independent Person will be instructed to give his decision as quickly as possible in writing with copies being sent simultaneously to the Landlord and the Tenant;
3. 22.5.3the Independent Person’s determination will be final and binding on the parties (except in cases of manifest error);
4. 22.5.4if the Independent Person dies, delays or becomes unwilling or incapable of acting, either party may ask the President to discharge and replace the Independent Person; and
5. 22.5.5the costs of the appointment of the Independent Person will be paid by parties in the proportions that the Independent Person decides or in the absence of any such decision from the Independent Person in equal shares.
6. 22.6Costs22.6Costs
Where costs of the Independent Person remain unpaid by the party liable to pay them pursuant to this clause, the other party may discharge those costs and recover the sum so paid from the defaulting party as a debt on written demand.
4 23Interest23Interest
If and so often as any of the sums payable under this Agreement by any party to any other party (except as otherwise provided in this Agreement) remains unpaid for ten Working Days after becoming due and payable, the party from whom such payment is due will pay on demand interest on such unpaid sums from the due date until payment is made in cleared funds at the rate of four per cent per annum above the base lending rate of The Royal Bank of Scotland Plc in force from time to time or if such base lending rate is incapable of determination the rate will be deemed to be such rate as is reasonably equivalent to that rate.
5 24VAT24VAT
1. 24.1Exclusive of VAT24.1Exclusive of VAT
Each and every element of consideration (including monetary payments and the provision of non-monetary consideration) due under this Agreement from the Tenant is exclusive of any VAT and where any such payment is the consideration for a taxable supply for VAT purposes, the consideration is to be increased by the amount of VAT
30 8744735.67 which is chargeable on that that supply and the Tenant will pay to the Landlord such VAT upon receipt of a valid VAT invoice addressed to the Tenant.
2. 24.2Reimbursement24.2Reimbursement
Where any payment is required to be made pursuant to this Agreement to reimburse the payee for any expenditure such payment is to include an amount equal to any VAT comprised in that expenditure which is not recoverable by the payee as input tax under section 25 of the Value Added Tax Act 1994.
6 25Entire agreement25Entire agreement
1. 25.1Old agreements superseded25.1Old agreements superseded
This Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between them relating to the subject matter of this Agreement.
2. 25.2Duplicates25.2Duplicates
This contract may be executed in any number of duplicate parts all of which taken together will on exchange constitute one contract.
7 26Upcycling Activities26Upcycling Activities
The Landlord agrees with the Tenant that any loose materials, timber and/or objects remaining on the Landlord’s Estate after completion of the Landlord’s Works may be used and/or upcycled by the Tenant in connection with the use and operation of the Premises by the Tenant for the purposes permitted under the terms of the Lease.
This Agreement has been executed on the date stated at the beginning of it.
THE COMMON SEAL of THANET DISTRICT COUNCIL was affixed hereto in the presence of:
………………………………………….. Member
………………………………………….. Solicitor
Signed as a deed by Sands Heritage Limited …………………………...Director acting by a director
31 8744735.67 and its Company Secretary or by two Directors Nick Conington
…………………………...Director
John Adams
Schedule 1 Description of Landlord’s Works
Part 1
1. All of the Works described and/or referred to in the Main Works Building Contract and the Railway Works Building Contract and the Train and Tracks Contract; and
2. The works described in the document entitled “Dreamland Margate – Comparison of Operators and Coombs tenders” a copy of which is attached; and
3. The variations referred to in the agreed Variation Schedule.
Part 2 Post Completion Works
The installation of electrical power supplies as detailed in the Landlord’s Works as is required to operate the Main Site in accordance with the terms of the Lease and the Outstanding Works. Schedule 2
Description of Tenant's Works
[See schedule attached] Schedule 3
Tenant’s Works Conditions
1 Consent
Landlord Consents
The Landlord consents to the Tenant carrying out the Tenant’s Works on the terms set out in this Agreement.
Tenant obliged to do work
The Tenant covenants with the Landlord to carry out the Tenant’s Works in accordance with the terms of this Agreement.
32 8744735.67 Other consents may be needed
The consent set out in this schedule does not obviate the need for the consent of any person other than the Landlord that may be required to lawfully carry out and complete the Tenant’s Works.
Starting the works
The Tenant must not start the Tenant’s Works until it has fully complied with the requirements of this paragraph 2:
Obtain licences etc
The Tenant must obtain all licences, approval, permits and consents that are required for the Tenant's Works under the Planning Acts, other laws, by the owner or occupier of any neighbouring land or otherwise.
Co-operation
The Tenant will agree with the Landlord’s reasonable proposals for regular liaison, co- ordination and co-operation of the Tenant, his consultants and contractors with the Landlord and their contractor and professional team with the intention of avoiding hindering or endangering the Landlord’s Works and details of the order and timing of the Tenant’s Works including proposals for:
the means and timing of access for various parts of the Premises;
the frequency of delivery to the Premises of materials and equipment for incorporation or use in the Tenant’s Works;
the storage of building materials, plant and equipment required for the Tenant’s Works on the Premises;
the protection of the Premises and the Landlord’s Works; and
the method by which surplus materials, waste, refuse and rubbish from the Tenant’s Works are to be removed from or recycled at the Premises.
Tenant to notify insurers
The Tenant must provide details of the Tenant’s Works to the insurers of the Premises. The Tenant must pay any increase in the premium and any additional premium for the Premises or any neighbouring property of the Landlord demanded by the insurers by reason of carrying out the Tenant’s Works and for insurance effected under paragraph 5.
33 8744735.67 Disclosure of licences etc
The Tenant must produce all such licences and consents to the Landlord and obtain the Landlord’s confirmation they are satisfactory to the Landlord such confirmation not to be unreasonably withheld or delayed.
Notice of commencement
The Tenant must notify the Landlord of the date it intends to start carrying out the Tenant's Works.
Carrying out the works
Standard of works
The Tenant must carry out Tenant’s Works:
using good quality materials;
in a good and workmanlike manner and in accordance with good building and other relevant practices codes and guidance; and
by engaging contractors and sub-contractors of repute; and
to the reasonable satisfaction of the Landlord.
Compliance with laws
In carrying out the Tenant’s Works the Tenant must comply with the Planning Acts and other laws, the terms of all other relevant licences and consents, the requirements and recommendations of all relevant utility suppliers and those of the insurers of the Premises.
Not to compromise structure
The Tenant must take all proper steps to ensure that carrying out the Tenant’s Works does not make any of the following unsafe: the structure of any buildings on the Premises, any neighbouring land or building.
Minimise disruption
The Tenant must cause as little disturbance, nuisance and inconvenience as reasonably possible to the Landlord and the owners and occupiers of any buildings on the Premises and of any neighbouring land. The Tenant must not infringe any of their rights nor the rights of any other person in relation to the Premises but the Landlord acknowledges and agrees with the Tenant that this clause shall not prevent the Tenant from carrying out the Tenant’s Works in accordance with this Agreement.
34 8744735.67 Make good damage
The Tenant must immediately make good, to the reasonable satisfaction of the Landlord, any damage to any land or buildings or any plant and machinery (other than the Premises) which is caused by carrying out the Tenant’s Works.
Allow access
The Tenant must allow the Landlord, its contractor and professional team access to the Premises, both while the Tenant’s Works are being carried out and afterwards, at reasonable times and on reasonable prior notice, and will give the Landlord the information it reasonably requests to establish that the Tenant’s Works are being and have been carried out in accordance with the terms of this Agreement.
Duty to complete
The Tenant must complete the Tenant’s Works as soon as reasonably possible and once completed the Tenant must send the Landlord copies of plans showing the Premises as altered by the Tenant’s Works.
CDM Regulations
Application
This paragraph applies to the extent that the CDM Regulations apply in relation to the Tenant’s Works.
Tenant is client
If and to the extent that the Landlord may be a client for the purposes of the CDM Regulations in relation to the Tenant’s Works, the Tenant elects to be the only client in respect of the Tenant's Works and the Landlord agrees to that election.
Duty to procure compliance by professionals
The Tenant must comply with its obligations as a client for the purposes of the CDM Regulations and must ensure that the CDM co-ordinator and the principal contractor that it appoints in relation to the Tenant’s Works comply with their respective obligations under the CDM Regulations.
Record keeping by Tenant
The Tenant must place all relevant documents relating to the Tenant’s Works in the health and safety file for the Premises in accordance with the CDM Regulations and otherwise comply with its obligations in the Lease relating to those documents and the file.
Insurance of works
Landlord’s obligation limited
35 8744735.67 The Landlord will only be obliged to insure the Tenant’s Works if they form part of Premises, and only:
after they have been completed in accordance with this Agreement;
for the amount for which the Tenant has notified the Landlord that they should be insured; and
otherwise in accordance with the terms of the Lease.
Tenant’s risk
Until the date of practical completion of the Tenant's Works, the Landlord is not obliged to insure the Tenant’s Works and they will be at the sole risk of the Tenant.
Fees, rates and taxes
The Tenant must pay all fees, rates and taxes that arise by reason of the Tenant’s Works (including any arising under the Planning Acts in relation to the Tenant’s Works) whether imposed on the Landlord or the Tenant and must indemnify the Landlord from all liability in relation to such fees, rates and taxes.
Additional works
If the terms of any planning permission, licence or consent (other than the consent contained in paragraph 1 of this schedule) obtained for the Tenant’s Works, require any works to be carried out (whether to the Premises or to any other land or building) the Tenant must (subject to complying with the terms of this schedule) carry out such works within any time limit imposed by such permission, licence or consent and in any event before the end of the term or sooner determination of the Lease.
Lease obligations apply
The tenant covenants in the Lease will extend to the Tenant’s Works and apply to the Premises as altered by the Tenant’s Works.
Schedule 4
The Tenant's Fit-Out Works
None
36 8744735.67 Annexure 1 Form of lease
Annexure 2
Form of Licence for Alterations
Dated 2015
Parties
(1) Thanet District Council of Cecil Street, Margate, Kent, CT9 1XZ (Landlord)
(2) Sands Heritage Limited (company number 09094163) whose registered office is at Bridge House, 4 Borough High Street, London Bridge, London, SE1 9QR (Tenant)
1 Definitions
In this licence the following words and expressions have the meanings set opposite them (unless the context otherwise requires):
CDM Regulations means the Construction (Design and Management) Regulations 2007 and any code of practice or other guidance notes issued under them;
Consents means Each and every consent permission or approval which the Tenant needs to carry out the Works lawfully whether issued under the Town and Country Planning Act 1990 or under any other statute or any bye law or by any competent authority;
Lease means the lease of the Premises made on between (1) the Landlord and (2) the Tenant;
Liability Period means the period during which the Tenant remains liable to the Landlord under the Lease or the Landlord and Tenant (Covenants) Act 1995;
Premises means the premises let by the Lease and known as Dreamland Amusement Centre, Marine Terrace, Margate, Kent;
Term means the term granted by the Lease;
Working Day means any day other than Christmas Day, Good Friday, a Saturday, Sunday or bank holiday in England and Wales; and
Works means the proposed alterations to the Premises specified in the schedule.
Interpretation
In this Licence:
Landlord where the context allows includes the person for the time being entitled to the Premises at the end or earlier termination of the Term.
37 8744735.67 Tenant where the context allows and subject to the Landlord and Tenant (Covenants) Act 1995 includes the Tenant's successors in title.
Reference to any statute or any statutory instrument includes and refers to that statute or statutory instrument as amended or re-enacted and as implemented or amended by any subordinate legislation from time to time throughout the Term.
Where a party is more than one person their rights and obligations are joint and individual.
The clause headings do not affect the interpretation of this licence.
The licence
The Landlord gives the Tenant licence to carry out the Works subject to the terms of this licence.
Tenant's obligations
The Tenant agrees with the Landlord during the Liability Period:
Before starting the Works and at its own expense:
to obtain all Consents;
to give the Landlord copies of all Consents received.
To carry out the Works in a good and workmanlike manner in accordance with best practice and with good quality materials in accordance with current codes of good practice to the reasonable satisfaction of the Landlord and in compliance with the Consents and all statutes.
To comply with the CDM Regulations where they apply to the Works;
To acknowledge the election by the Landlord and the Tenant in accordance with Regulation 8 that the Tenant is to be treated as the only 'client' for the purposes of the CDM Regulations;
To indemnify the Landlord against any expense, loss, liability, claim or proceedings arising out of or in connection with any breach by the Tenant of the client's duties under the CDM Regulations;
On completion of the Works to give the Landlord a complete copy of the health and safety file for the Works prepared in accordance with the CDM Regulations.
To take all necessary precautions during the execution of the Works to ensure that the structure of the Premises and of any neighbouring premises are kept safe.
38 8744735.67 To allow the Landlord and those authorised by it to inspect the Works at any reasonable time on reasonable notice.
To ensure that the Works are carried out in a way which does not cause nuisance or annoyance to the Landlord or the owners or occupiers of any neighbouring premises.
To cause as little damage to the Premises as possible in carrying out the Works and to make good to the Landlord's reasonable satisfaction any damage caused.
To pay any charge or assessment in respect of the Works that may be imposed under any Consent or by any competent authority.
To keep the Landlord indemnified against all liability whatsoever arising from the Works and their execution and any breach by the Tenant of the provisions of this licence.
(Unless the Landlord decides otherwise) to carry out before the end or earlier termination of the Term any works which need under a Consent to be carried out to the Premises by a date after the end of the Term.
Conditions of this licence
This licence and any consent given by the Landlord under it are given without liability on the part of the Landlord and imply no warranty that it is lawful to execute the Works.
The provisions of the Lease will apply to the Premises as altered by the Works.
This licence is restricted to the Works and except where expressly stated otherwise all the provisions of the Lease remain in full force.
The provision for re-entry in the Lease is exercisable on a breach by the Tenant of any provision of this licence.
The Works are not improvements for the purposes of Part I of the Landlord and Tenant Act 1927 and are carried out by the Tenant to suit the Tenant and the Tenant is not entitled to any compensation for them.
Contracts (Rights of Third Parties) Act 1999
No term of this licence is enforceable under the Contracts (Rights of Third Parties) Act 1999.
Executed as a deed and delivered on the date at the beginning of this document.
39 8744735.67 Annexure 3
List of Parties required to give Collateral Warranty
Not used
40 8744735.67 1. Contractors warranty from Coombs (Canterbury) Limited.
Annexure 4
Agreed forms of Collateral Warranty
Not used
41 8744735.67 Form of warranty attached.
Annexure 5
Deed of Indemnity
Draft attached.
42 8744735.67 Annexure 6
Not used
43 8744735.67 Annexure 7
Not used.
44 8744735.67 Annexure 8
JK Management Contract
45 8744735.67 Annexure 9
Plan referred to in clause 10.3.29.3.2.
46 8744735.67