(2) [New Co] Agreement Relating to Knipe Point, Scarborough, North Yorkshire and the P

DATED 2013

(1) THE SCARBOROUGH BOROUGH COUNCIL

(2) [NEW CO]

AGREEMENT

RELATING TO KNIPE POINT, SCARBOROUGH, NORTH YORKSHIRE AND THE PATHFINDER PROJECT

The Scarborough Borough Council Town Hall St Nicholas Street Scarborough North Yorkshire YO11 2HG

CONTENTS

CLAUSE 1. Definitions and Interpretation ...... 1 2. Purchase of Saxon Park by the Owner ...... 4 3. Payment of the Grant ...... 6 4. Relocation of the Knipe Point Residents to Saxon Park ...... 7 5. Records ...... 8 6. Monitoring and Reporting ...... 8 7. Freedom of information ...... 9 8. Withholding, suspending and repayment of the Grant ...... 10 9. Anti-discrimination ...... 11 10. Human rights ...... 11 11. Limitation of liability ...... 11 12. Warranties ...... 11 13. Duration ...... 12 14. Termination ...... 12 15. Assignment ...... 12 16. Waiver ...... 13 17. Notices ...... 13 18. No partnership or agency ...... 13 19. Contracts (Rights of Third Parties) Act 1999 ...... 13 20. Governing law ...... 13

THIS DEED is dated 2013

PARTIES

(1) THE SCARBOROUGH BOROUGH COUNCIL of Town Hall, St Nicholas Street, Scarborough, North Yorkshire, YO11 2HG (the Council).

(2) [NEW CO] (Company Registration Number[ ] ) whose registered office is at [ ] (the Owner).

BACKGROUND

(A) Knipe Point Freeholders Limited (Company Registration Number 4619797) is the freehold owner of land at Knipe Point Drive, Cayton, North Yorkshire which is subject to a number of long leases to Knipe Point residents.

(B) In April 2008 a landslip occurred resulting in cliff top recession and the loss of land at Knipe Point, Cayton Bay, Scarborough, North Yorkshire and left a number of the leased properties at Knipe Point Drive at risk.

(C) The Council as Coast Protection Authority used its permissive powers under the Coast Protection Act 1949 and as well as its well being powers under the Local Government Act 2000 (now replaced by the general power of competence under the Localism Act 2011) to secure grant funding from DEFRA as part of the DEFRA Coastal Change Pathfinder.

(D) The DEFRA Pathfinder Grant is to assist coastal communities to adapt to coastal change and the Council wishes to pay the DEFRA Pathfinder Grant to the Owner to enable the Owner to purchase land at Saxon Park, Crossgates, Seamer, Scarborough for certain residents at Knipe Point to relocate from their at risk properties at Knipe Point Drive.

(E) These terms and conditions are intended to ensure that the Pathfinder Grant is used for the purpose for which it is given.

AGREED TERMS

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement the following terms shall have the following meanings: Bribery Act: the Bribery Act 2010 and any subordinate legislation made under that Act from time to time together with any guidance or codes of practice issued by the relevant government department concerning the legislation. Commencement Date: the date of this Agreement. DEFRA: the Department for Environment, Food and Rural Affairs and includes any successors statutory or otherwise

DEFRA Pathfinder Grant Conditions: the following conditions in respect of the properties at Knipe Point belonging to the Knipe Point Residents:

(i) at imminent risk, vacated in agreement with the Council, declared unsafe or is lost as a result of coastal recession;

(ii) any residential property of the Knipe Point Resident (i.e. including a second home, buy to let or investment property);

(iii) a fixed dwelling (i.e not a moveable home such as a caravan or temporary structure);

(iv) purchased before the ‘Pathfinder’ consultation document was launched on 15 June 2009;

(v) vacated by agreement, demolished or lost to coastal recession after the 15 June 2009. Grant: up to a maximum of £878,452.00 (Eight hundred and seventy eight thousand four hundred and fifty two pounds) to be paid in accordance with this Agreement. Grant Period: the period for which the Grant is available starting on the Commencement Date and ending on 16 January 2015. Knipe Point Residents: the following Knipe Point Drive residents: Paul and Ann Bentley of 5 Knipe Point Drive; Roland and Judy Backhouse of 6 Knipe Point Drive; Kevin and Mary Lloyd of 7 Knipe Point Drive; Philip and Heather Johns of 8 Knipe Point Drive; Norma Tooley of 9 and 10 Knipe Point Drive; Ian Parkin of 11 Knipe Point Drive; Peter Humble of 12 Knipe Drive; Linda Ibbotson of 13 Knipe Point Drive; Vincent and Glenis Morrison of 14 Knipe Point Drive; Peter and Wendy Beaumont of 15 Knipe Point Drive; Malcolm and Christine Pirks of 16 Knipe Point Drive; Wendy Holmes of 17 Knipe Point Drive; Christopher Newell of 18 Knipe Point Drive; John and Moya Green of 25 and 26 Knipe Point Drive; or such other residents as agreed with the Council as meeting the DEFRA Pathfinder Grant Conditions.

Owner’s Solicitor: Jane Nickson of Birdsall & Snowball Solicitors, 12 West Avenue, Filey, YO14 9AA. Planning Permission: Decision Numbers 12/00079FL, 4/9/334C/FL and 03/01968/FL and shall include any variations of any of their terms. Prohibited Act: means:

(b) offering, giving or agreeing to give to any officer of the Council any gift or consideration of any kind as an inducement or reward for:

(i) doing or not doing (or for having done or not having done) any act in relation to the obtaining or performance of this Agreement or any other contract with the Council; or

(ii) showing or not showing favour or disfavour to any person in relation to this Agreement or any other contract with the Council;

(c) entering into this Agreement or any other contract with the Council where a commission has been paid or has been agreed to be paid by the Owner or on its behalf, or to its knowledge, unless before the relevant contract is entered into particulars of any such commission and of the terms and conditions of any such contract for the payment thereof have been disclosed in writing to the Council;

(d) committing any offence:

(i) under the Bribery Act;

(ii) under legislation creating offences in respect of fraudulent acts; or

(iii) at common law in respect of fraudulent acts in relation to this Agreement or any other contract with the Council; or

(e) defrauding or attempting to defraud or conspiring to defraud the Council. Saxon Park: the property at Saxon Park, Crossgates, Seamer, Scarborough, North Yorkshire comprised in Title Number NYK110157.

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The Schedules and Annexes form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.

1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.9 A reference to a statute or statutory provision shall include any subordinate legislation made from time to time under that statute or statutory provision.

1.10 A reference to writing or written includes faxes but not e-mail.

1.11 A reference to "this agreement" or to any other agreement or document referred to in this agreement is a reference to this agreement or such other document or agreement as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.

1.12 References to clauses and Schedules and Annexes are to the clauses and Schedules of this agreement; references to paragraphs are to paragraphs of the relevant Schedule.

1.13 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.14 Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.

1.15 Any reference to the Council’s consent or approval being required is to a consent or approval in writing which must be obtained before the relevant act is taken or event occurs.

2. PURCHASE OF SAXON PARK BY THE OWNER

2.1 The Owner shall only use the Grant to purchase Saxon Park for the purpose of granting leases (on terms described in this Agreement) to the Knipe Point

Residents to enable them to relocate to Saxon Park from their properties at Knipe Point Drive in accordance with the terms and conditions set out in this Agreement which includes the fulfilment of the requirements of clause 2.5 of this Agreement. The Grant shall not be used for any other purpose.

2.2 The Owner will negotiate with the seller of Saxon Park and agree a fair and reasonable purchase price for Saxon Park (the “Agreed Purchase Price”).

2.3 The purchase by the Owner of Saxon Park will be as one single transaction.

2.4 The Owner will provide the Council with such information as the Council reasonably requires to demonstrate that the Agreed Purchase Price is a fair and reasonable purchase price (as determined by the Council acting reasonably).

2.5 The Owner will engage the Owner’s Solicitor, surveyors and such other professional advisors (at the Owner’s sole cost) as necessary to carry out due diligence in respect of Saxon Park to ensure that Saxon Park is suitable for the purpose of relocating all of the Knipe Point Residents from their properties at Knipe Point Drive in accordance with this Agreement, such due diligence to include (but is not limited to):

(a) Investigation of Saxon Park title, carrying out of relevant searches and raising pre contract enquiries of the seller and any third party;

(b) Commissioning of surveys and/or reports;

(d) Ensuring compliance with the Planning Permission.

2.6 The Owner will indemnify the Council and hold it harmless from and against all liabilities, claims, costs, expenses and losses resulting from the suitability of Saxon Park for the purpose of relocating the Knipe Point Residents from their properties at Knipe Point Drive in accordance with this Agreement.

2.7 Subject to the satisfaction of due diligence under clause 2.5 above the Owner will instruct the Owner’s Solicitor to proceed with the purchase of Saxon Park in accordance with this Agreement.

2.8 The purchase of Saxon Park by the Owner will either be freehold or leasehold title with a minimum term of 99 years.

2.9 The Owner will complete the purchase of Saxon Park in accordance with this Agreement within the Grant Period.

2.10 The completion date of the purchase of Saxon Park by the Owner will be no more than 20 working days after the date of the contract for the purchase of Saxon Park between the Owner and the seller of Saxon Park.

2.11 The Owner will be responsible for paying all monies, stamp duty land tax, surveys costs, legal and professional fees incurred by the Owner in connection with the purchase of Saxon Park in accordance with this Agreement including any shortfall between the total of these costs in addition to the Agreed Purchase Price and the Grant.

2.12 On purchase of Saxon Park the Owner will register a restriction with HM Land Registry against its title to Saxon Park for a period of seven years (7) (the Restriction Period) containing the following wording:

“No disposition of the registered estate by the proprietor of the registered estate is to be registered without a written consent signed by Scarborough Borough Council or its solicitors (such consent not to be unreasonably withheld).”

2.13 The Owner acknowledges that in providing its consent under clause 2.12 above the Council may require a payment to cover any significant increase in value of the properties at Saxon Park from the date of purchase such significant increase to be determined by reference to a valuation of the properties at Saxon Park

2.14 The Owner will ensure that the same restriction referred to in clause 2.12 above is also registered against the Knipe Point Residents’ titles on the grant of the leases to the Knipe Point Residents by the Owner in accordance with this Agreement and the Knipe Point Residents will enter into deeds of covenant with the Council containing the same obligations as contained in clause 2.12, 2.13 and 2.15 of this Agreement.

2.15 The Owner covenants during the Restriction Period not to transfer the Property or any part of it without ensuring that the transferee first enters into a deed of covenant with the Council containing the same obligations as are contained in clauses 2.12, 2.13 and 2.15 of this Agreement.

3. PAYMENT OF THE GRANT

3.1 Subject to clauses 8 and 14, the Council shall pay to the Owner’s Solicitor the Grant by way of two instalments:

(a) The Council will pay out of the Grant the agreed deposit for the purchase by the Owner of Saxon Park (which shall be no more than 10% of the Agreed Purchase Price) in advance of exchange of

contracts for the purchase of Saxon Park subject to the production of such information as the Council reasonably requires to verify the transaction;

(b) Following exchange of contracts for the purchase of Saxon Park by the Owner the Owner’s Solicitor will provide to the Council a copy of the contract and the Council will pay the remaining out of the Grant owed to the Owner being the Agreed Purchase Price less the deposit for the sole purpose of completing the purchase of Saxon Park in accordance with this Agreement.

3.2 The Owner will be responsible for any shortfall between the Grant and the Agreed Purchase Price and any of the other eligible costs referred to in clause 2.5 of this Agreement.

3.3 In the event that completion of the purchase of Saxon Park by the Owner does not take place 28 working days following the date of the contract and on the Council request, the Owner will instruct the Owner’s Solicitor to repay to the Council all monies paid to the Owner’s Solicitor under clause 3.1 above for the purchase of Saxon Park by the Owner.

4. RELOCATION OF THE KNIPE POINT RESIDENTS TO SAXON PARK

4.1 Prior to relocating to Saxon Park the Owner will ensure that the DEFRA Pathfinder Grant Conditions are met in respect of the properties belonging to the Knipe Point Residents at Knipe Point Drive.

4.2 The Owner will be responsible for the construction of up to fourteen suitable dwelling houses at Saxon Park for the Knipe Point Residents which shall be without cost to the Council or any contribution from the Grant.

4.3 The Owner will ensure that the construction of the fourteen dwelling houses is carried out in compliance with all statutory and legal requirements including the Planning Permission and the recommendations or requirements of the local authority or statutory undertakings.

4.4 The Owner will grant to the Knipe Point Residents long leases of the fourteen dwelling houses constructed at Saxon Park on substantially the same and no more onerous terms as the leases of the properties at Knipe Point Drive between the Knipe Point Residents, the Owner and Knipe Point Owners Association save for the payment of a premium which will not be required and the inclusion of the restriction referred to in clause 4.5 below.

4.5 The Owner will ensure that a restriction is registered with HM Land Registry against the Knipe Point Residents’ title to the properties at Saxon Park for a period of seven (7) years containing the following wording:

4.6 The Owner acknowledges that in providing its consent under clause 4.5 above the Council may require a payment to cover any significant increase in value of the properties at Saxon Park from the date of purchase such significant increase to be determined by reference to a valuation of the properties at Saxon Park

4.7 The Owner will ensure that the Knipe Point Residents will enter into deeds of covenant with the Council containing the same obligations as contained in clause 4.5, 4.6 and 4.8 of this Agreement.

4.8 The Owner will ensure that during the Restriction Period the Knipe Point Residents do not transfer their properties at Knipe Point or any part of it without ensuring that the transferee first enters into a deed of covenant with the Council containing the same obligations as are contained in clause 4.5, 4.6 and 4.8 of this Agreement.

5. RECORDS

5.1 The Owner shall instruct the Owner’s Solicitor to keep all documentation, invoices, receipts, and accounts and any other relevant documents relating to the purchase of Saxon Park including due diligence for a period of at least twelve years following completion of the purchase. The Council shall have the right to review, at the Council’s reasonable request, the Owner's accounts and records that relate to the expenditure of the Grant and the purchase of Saxon Park including due diligence and shall have the right to take copies of such accounts and records.

6. MONITORING AND REPORTING

6.1 The Owner shall on request provide the Council and/or DEFRA with such information, explanations and documents as the Council and/or DEFRA may reasonably require in order for it to establish that the Grant has been used properly in accordance with this Agreement.

6.2 The Owner shall permit any person authorised by the Council such reasonable access to its employees, agents, premises, facilities and records, for the purpose of discussing, monitoring and evaluating the Owner's fulfilment of the conditions of this Agreement and shall, if so required, provide appropriate oral or written explanations from them.

6.3 The Owner shall provide the Council with a final report on completion of the purchase of Saxon Park and relocation of the Knipe Point Residents to Saxon Park, which shall confirm whether that the Owner has successfully and properly complied with all of the terms of this Agreement.

7. FREEDOM OF INFORMATION

7.1 The Owner acknowledges that the Council is subject to the requirements of the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 and shall assist and co-operate with the Council (at the Owner's expense) to enable the Council to comply with these information disclosure requirements.

7.2 The Owner shall:

(a) transfer the request for information to the Council as soon as practicable after receipt and in any event within two Working Days of receiving a request for information;

(b) provide the Council with a copy of all information in its possession or power in the form that the Council requires within five working days (or such other period as the Council may specify) of the Council requesting that information; and

(c) provide all necessary assistance as reasonably requested by the Council to enable the Council to respond to a request for information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the Environmental Information Regulations 2004.

7.3 The Council shall be responsible for determining at its absolute discretion whether the information:

(a) is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Information Regulations 2004;

(b) is to be disclosed in response to a request for information, and in no event shall the Recipient respond directly to a request for information unless expressly authorised to do so by the Council.

7.4 In no event shall the Owner respond directly to a request for information unless expressly authorised to do so by the Council.

7.5 The Owner acknowledges that the Council may, acting in accordance with the Secretary of State for Constitutional Affairs' Code of Practice on the discharge of public authorities' functions under Part 1 of FOIA (issued under section 45 of the FOIA, November 2004), be obliged under the FOIA or the Environmental Information Regulations 2004 to disclose information:

(a) without consulting with the Owner; or

(b) following consultation with the Owner and having taken its views into account,

provided always that where clause 7.5(b) applies the Owner shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give the Owner advanced notice, or failing that, to draw the disclosure to the Owner's attention after any such disclosure.

7.6 The Owner shall ensure that all information produced in the course of the Agreement or relating to the Agreement is retained for disclosure and shall permit the Council to inspect such records as requested from time to time.

8. WITHHOLDING, SUSPENDING AND REPAYMENT OF THE GRANT

8.1 The Council's intention is that the Grant will be paid to the Owner’s Solicitor in accordance with this Agreement. However, without prejudice to the Council's other rights and remedies, the Council may at its discretion withhold payment or require repayment if:

(a) the Owner uses the Grant for purposes other than those for which they have been awarded;

(b) the Owner provides the Council with any materially misleading or inaccurate information;

(d) the Owner ceases to operate for any reason, or it passes a resolution (or any court of competent jurisdiction makes an order) that it be wound up or dissolved (other than for the purpose of a bona fide and solvent reconstruction or amalgamation);

(e) the Owner becomes insolvent, or it is declared bankrupt, or it is placed into receivership, administration or liquidation, or a petition has been presented for its winding up, or it enters into any arrangement or composition for the benefit of its creditors, or it is unable to pay its debts as they fall due; or

(f) the Owner fails to comply with any of the terms and conditions set out in this Agreement and fails to rectify any such failure within 30 days of receiving written notice detailing the failure.

8.2 Should the Owner be subject to financial or other difficulties which are capable of having a material impact on its effective compliance with this Agreement it will notify the Council as soon as possible so that, if possible, and without creating any legal obligation, the Council will have an opportunity to provide assistance in resolving the problem or to take action to protect the Council and the Grant monies.

9. ANTI-DISCRIMINATION

9.1 The Owner shall not unlawfully discriminate within the meaning and scope of any law, enactment, order, or regulation relating to discrimination (whether in race, gender, religion, disability, sexual orientation, age or otherwise) in employment.

10. HUMAN RIGHTS

10.1 The Owner shall (and shall use its reasonable endeavours to procure that its staff shall) at all times comply with the provisions of the Human Rights Act 1998 in the performance of this Agreement as if the Owner were a public body (as defined in the Human Rights Act 1998).

11. LIMITATION OF LIABILITY

11.1 The Council accepts no liability for any consequences, whether direct or indirect, that may come about from the Owner use of the Grant or from withdrawal of the Grant. The Owner shall indemnify and hold harmless the Council, its employees, agents, officers or sub-contractors with respect to all claims, demands, actions, costs, expenses, losses, damages and all other liabilities arising from or incurred by reason of the actions and/or omissions of the Owner in relation to the use of the Grant, the non-fulfilment of obligations of the Owner under this Agreement or its obligations to third parties.

11.2 Subject to clause 11.1, the Council's liability under this Agreement is limited to the payment of the Grant in accordance with this Agreement.

12. WARRANTIES

The Owner warrants, undertakes and agrees that:

(a) it has not committed, nor shall it commit, any Prohibited Act;

(b) it shall at all times comply with all relevant legislation and all applicable codes of practice and other similar codes or recommendations, and shall notify the Council immediately of any

significant departure from such legislation, codes or recommendations;

(c) it shall comply with the requirements of the Health and Safety at Work etc. Act 1974 and any other acts, orders, regulations and codes of practice relating to health and safety, which may apply to employees and other person;

(d) it has and shall keep in place adequate procedures for dealing with any conflicts of interest;

(e) it has and shall keep in place systems to deal with the prevention of fraud and/or administrative malfunction;

(f) it is not subject to any contractual or other restriction imposed by its own or any other organisation's rules or regulations or otherwise which may prevent or materially impede it from meeting its obligations in connection with this Agreement;

13. DURATION

13.1 Except where otherwise specified, the terms of this Agreement shall apply from the date of this Agreement until the anniversary of expiry of the Grant Period or for so long as any Grant monies remain unspent by the Owner, whichever is longer.

13.2 Any obligations under this Agreement that remain unfulfilled following the expiry or termination of the Agreement shall survive such expiry or termination and continue in full force and effect until they have been fulfilled.

14. TERMINATION

14.1 The Council may immediately terminate this Agreement if the Owner has not completed the purchase of Saxon Park within the Grant Period.

14.2 This Agreement will immediately terminate if DEFRA withdraws or reclaims the Pathfinder Grant from the Council prior to the completion of the contract for the purchase of Saxon Park between the Owner and the seller of Saxon Park.

15. ASSIGNMENT

The Owner may not assign, transfer, sub-contract, or in any other way make over to any third party the benefit and/or the burden of this Agreement or, transfer or pay to any other person any part of the Grant.

16. WAIVER

No failure or delay by either party to exercise any right or remedy under this Agreement shall be construed as a waiver of any other right or remedy.

17. NOTICES

All notices and other communications in relation to this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered, or mailed (first class postage prepaid) to the address of the relevant party, as referred to above or otherwise notified in writing. If personally delivered all such communications shall be deemed to have been given when received (except that if received on a non-working day or after 5.00 pm on any working day they shall be deemed received on the next working day) and if mailed all such communications shall be deemed to have been given and received on the second working day following such mailing.

18. NO PARTNERSHIP OR AGENCY

This Agreement shall not create any partnership or joint venture between the Council and the Owner, nor any relationship of principal and agent, nor authorise any party to make or enter into any commitments for or on behalf of the other party.

19. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999

This Agreement does not and is not intended to confer any contractual benefit on any person pursuant to the terms of the Contracts (Rights of Third Parties) Act 1999.

20. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the law of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.

This document has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it.

EXECUTED as a DEED by the affixing of the COMMON SEAL of THE SCARBOROUGH BOROUGH COUNCIL in the presence of: ...... Authorised Signatory

EXECUTED as a DEED by [NEW CO] Acting by and under the signatures of: [NAME OF DIRECTOR] ...... [SIGNATURE OF DIRECTOR] Director

[NAME OF DIRECTOR OR COMPANY ...... SECRETARY] [SIGNATURE OF DIRECTOR OR COMPANY SECRETARY] [Director OR Company Secretary]