THE SCHEDULE TO THE AGREEMENT - Moray · Northwest Wing Bush House, Aldwych London WC2B 4EZ...

Northwest Wing

Bush House, Aldwych London WC2B 4EZ

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Saltire Court

20 Castle Terrace Edinburgh EH1 2EN

Tel:+44(0)131 228 8000

Fax:+44(0)131 228 8888 FAS: 1310

191 West George Street

Glasgow G2 2LD

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Fax:+44(0)141 222 2201 FAS: 1401

www.dundas-wilson.com

THE SCHEDULE TO THE AGREEMENT

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INDEX

SCHEDULE PAGE

SCHEDULE Part 1 Conditions Precedent 272 SCHEDULE Part 2 Authority's Requirements 276 SCHEDULE Part 3 Contractor's Proposals 279 SCHEDULE Part 4 Project Facilities 281 SCHEDULE Part 5 SECTION A Service Availability Requirements 286 SECTION B External Works Availability Requirements 294 SECTION C Grass Pitch Availability Requirements 295 SECTION D Keith AWP Availability Requirements 296 SCHEDULE Part 6 Documents 297 SCHEDULE Part 7 Payment Mechanism 301 SCHEDULE Part 8 Collateral Warranty 365 SCHEDULE Part 9 Review Procedure 374 SCHEDULE Part 10 Change in Law 384 SCHEDULE Part 11 Liaison Procedure 385 SCHEDULE Part 12 Warranted Data 386 SCHEDULE PART 12B Costs to Employ 387 SCHEDULE Part 13 Relevant Discharge Terms 388 SCHEDULE Part 14 Details of Companies 389 SCHEDULE Part 15 Insurances 390 SCHEDULE Part 16 Property Agreements and Title Provisions 412 SCHEDULE Part 16 Property Agreements and Title Provisions 413 SCHEDULE Part 17 Site Meeting Agenda Items 419 SCHEDULE Part 18 Dispute Resolution Procedure 421 SCHEDULE Part 19 Senior Lenders Direct Agreement 433 SCHEDULE Part 20 SECTION A Certificate of Service Availability 449 SCHEDULE Part 20 SECTION B Certificate of External Works Availabity 450 SCHEDULE Part 20 SECTION C Certificate of Grass Pitch Availability 451 SCHEDULE Part 20 SECTION D Certificate of Keith AWP Availabity 452 SCHEDULE Part 20 SECTION E Acceptance Certificate 453 SCHEDULE Part 20 SECTION F Final Acceptance Certificate 454 SCHEDULE Part 21 SECTION A Commercially Sensitive Information 455 SCHEDULE Part 21 SECTION B Commercially Sensitive Information 456 SCHEDULE Part 22 Services Direct Agreement 458 SCHEDULE Part 23 Structured Refinancing Protocol 468 SCHEDULE Part 24 Junior Lenders Direct Agreement 476 SCHEDULE Part 25 Handback Table 483 SCHEDULE Part 26 Pensions 489 SCHEDULE Part 27 Not Used 492 SCHEDULE Part 28 Data Room Index 493 SCHEDULE Part 29 Authority Planning Conditions 504

273

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5.3 no proceedings seeking judicial review of any detailed planning consent granted in

respect of the Project have been served on the Council, nor has any written notice

been received by the Council threatening the same.

6. The Authority having delivered to the Contractor an account mandate signed on

behalf of the Authority in respect of the Joint Insurance Account.

274


SCHEDULE PART 1

CONDITIONS PRECEDENT

SECTION B

CONTRACTOR'S CONDITIONS PRECEDENT

1. The valid execution and delivery of each of the Project Documents and the Authority

having received notice from the Contractor confirming that the Project Documents

either are or have become (or will become simultaneously with satisfaction of the

other Conditions Precedent) unconditional in accordance with their terms and the

Authority having received a certified true copy of the same.

2. The valid execution and delivery of each of the Initial Funding Agreements and the

Authority having received notice from the Contractor confirming that all conditions to

the availability of funds to the Contractor under the Initial Funding Agreements have

been satisfied or waived (other than this Agreement becoming unconditional) and the

Authority having received a certified true copy of the same.

3. The insurance referred to in and to be taken out and maintained as detailed in Clause

61 being in full force and effect and the Authority having received confirmation from

the Contractor’s brokers to that effect.

4. Letter of undertaking from the Contractor’s insurance broker in the form set out in

Section 4 of Part 15 of the Schedule.

5. Letter from the Contractor confirming that there is no dispute which remains the

subject of the Dispute Resolution Procedure the resolution of which may give rise to

the termination of this Agreement.

6. There has been delivered to the Authority a printed copy of the Financial Model and

associated working book together with one copy on computer disk (complete with all

formulae and data).

7. There has been delivered to the Authority an original copy of the Senior Lenders

Direct Agreement, the Junior Lenders Direct Agreement, the Services Direct

Agreement and the Construction Direct Agreement.

8. There has been delivered to the Authority a certified copy from the Company

Secretary of the Contractor of a minute of a meeting of the directors of the

275


Contractor, duly convened and held, authorising the Contractor to undertake the

Project and to execute and deliver this Agreement and the Project Documents.

277


SCHEDULE PART 2

AUTHORITY'S REQUIREMENTS

SECTION B

NOT USED

278


SCHEDULE PART 2

AUTHORITY'S REQUIREMENTS

SECTION C

SERVICES SPECIFICATION

The Services Specification is in the Agreed Form and form part of this Agreement

280


SCHEDULE PART 3

CONTRACTOR'S PROPOSALS

SECTION B

OPERATIONAL AND MAINTENANCE PROPOSALS

The Operational and Maintenance Proposals are in the Agreed Form and form part of this

Agreement

281


SECTION A

EXISTING PROJECT FACILITIES

Existing Project Facility Address

Elgin Academy

Morriston Road,

Bishopmill,

Elgin, IV30 4ND

Keith Primary

School Road,

Keith, AB55 5ES

282


SCHEDULE PART 4

PROJECT FACILITIES

SECTION B

NEW PROJECT FACILITIES

New Project Facility etc (including address)

Replaces Existing Project Facility

Target Service

Availability Date

Target Grass Pitch

Availability Date

Target External Works

Availability Date

Elgin Academy, Moriston Road, Elgin

Elgin Academy

26/02/2012 21/12/2013 21/12/2012

Keith Primary School (incorporating Keith Nursery), School Road, Keith

Keith Primary School

30/10/2011 30/10/2012 23/12/2011

283


SCHEDULE PART 4

PROJECT FACILITIES

SECTION C

ASBESTOS WORKS

Site Type 2 Asbestos Works

Period

Keith 02/08/2010 for 1 week

Elgin 09/04/2012 for 2 weeks

284


SCHEDULE PART 4

PROJECT FACILITIES

SECTION D

ASBESTOS REMOVAL RATES

285


SCHEDULE PART 4

PROJECT FACILITIES

APPENDIX A

PLANS

287


(b) operational tests listed at A1.2.

Construction completion tests shall be carried out to confirm that construction and/or

installation of plant is practically complete.

Operational tests shall be carried out to demonstrate that:

the New Project Facilities satisfy operational requirements set out in the

Authority’s Requirements in accordance with this Section A; and

the mechanical and electrical plant and equipment and control systems operate

reliably.

The Authority’s safety representative and Contractor’s safety representative shall

carry out a joint safety inspection of the New Project Facilities prior to the issue of the

Certificate of Service Availability. Any matter agreed as not complying with the

Contractor’s obligations under this Agreement arising out of the safety inspection

shall be remedied prior to the issue of the relevant Certificate of Service Availability.

Not less than one month prior to the commencement of the tests the Contractor shall

provide two draft copies of “As constructed” drawings, the operating and

maintenance manuals, training manuals, the health and safety manuals and the CDM

Regulations health and safety file.

Completion Tests

Completion of construction shall have been attained when the relevant New Project

Facility has been tested in accordance with the relevant standards for

weatherproofing, water tightness, security and safety and all material plant and

equipment has been installed in accordance with the Authority’s Requirements and

all electrical and control connections made.

In addition, for buildings or part buildings governed by the Building Standards

(Scotland) Regulations 1990, Service Availability shall not be attained until all

building warrant completion certificates issued by the relevant Building Control

Authority are obtained in respect of the relevant Works or temporary occupation

certificates obtained and renewed until issue of such building warrant completion

certificate.

288


Documentation

The Contractor shall be responsible for collecting and collating all data associated

with the construction completion tests. Documentation generated throughout the

construction completion tests shall be presented as a bound, indexed document as

part of the construction completion report.

The following list is typical though not exhaustive an index of items which shall

require test documentation:

1. Construction Completion Summary Sheets;

2. Civil and Building Works;

2.1 Tanks Test Certificate;

2.2 Pipeline Test Certificates including drainage;

2.3 Electrical Installation Completion and Inspection Certificates;

2.4 Lighting and Power Certificate of Test;

2.5 Fire and Intruder Alarms Commissioning Certificates;

2.6 Building Warrant Completion Certificates;

2.7 Records for mineral consolidation;

2.8 Roads Construction Consent;

2.9 Test Certificate for piles; and

2.10 Design Warrants.

3.

3.1 BREEAM Assessment Record Sheets;

3.2 General Electrical Earth Loop and Insulation Resistance Test Sheets;

3.3 Electrical Completion Certificates;

3.4 Emergency Lighting Completion Certificates;

3.5 Security Systems NACOSS Certificates;

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3.6 Security Systems Commissioning Certificates;

3.7 Fire Detection and Alarm Commissioning Certificates;

3.8 Fire Alarm Sound Record Sheets;

3.9 Lighting Calculation Sheets (sample checks);

3.10 Light Meter Result Test Sheets (sample checks);

3.11 Lift Commissioning and Factory Test Sheets;

3.12 Lighting Protection Risk Analysis and Test/Commissioning Sheets;

3.13 Boiler Plant Manufacturers Standard Test and Commissioning Sheets;

3.14 Boiler Plant in accordance with CIBSE commissioning code B;

3.15 Mechanical Pipe work Systems Pressure Tests;

3.16 Condensate Clearance Tests for A/C Equipment;

3.17 BMS/EMS Tests/Commissioning Records in accordance with CIBSE

Commissioning Code C;

3.18 HSG 70 Certification;

3.19 Air Distribution Systems in accordance with CIBSE Commissioning Code A;

3.20 Refrigeration Installations in accordance with CIBSE Commissioning Codes;

3.21 Water Distribution Systems in accordance with CIBSE Commissioning Code

W;

3.22 Plant (Calorific, Treatment etc.) Specialist Commissioning and Factory Test

Sheets; and

3.23 Boiler plant in accordance with C1BSE Commissioning Code B.

Civil Engineering Works

Construction of the civil engineering works will be practically complete and ready for

inspection when:

290


1. all structures and pipelines have been tested in accordance with the

Authority’s Requirements and fulfilled the requirements of such test in all

material respects;

2. the installations are safe for use;

3. all tanks, ducts, channels and pipelines are clear of all debris;

4. all other cleansing has been carried out; and

5. mineral workings have been consolidated.

Building Works

Construction of the building works will be practically complete and ready for

inspection when:

1. the building services and drains have been tested in accordance with the

Authority’s Requirements and fulfilled the requirements of such test in all

material respects;

2. all cleansing is complete; and

3. the fire and intruder alarm installations and any other security related

equipment are complete.

Mechanical and Electrical Works

Construction of the mechanical and electrical works shall be practically complete and

ready for inspection when:

1. the mechanical and electrical plant and equipment have been tested on Site

in accordance with the Authority’s Requirements and met the standards set

out in the Authority’s Requirements;

2. all installation work is complete;

3. the plant and equipment are safe for use; and

4. all cleansing is complete.

291


Instrument and Control Systems

Construction of the instrumentation and control systems shall be practically complete

and ready for inspection when:

1. the instrumentation and control systems have been tested, both in the

manufacturer’s works and on Site, in accordance with the Authority’s

Requirements and have fulfilled the requirements of such test;

2. all installation work is complete; and

3. the installations are safe for use.

Transfer Requirements

Transfer Requirements shall be complete and ready for inspection when:

1. the areas to be handed over for Educational Services are in

accordance with Sections B2, B3, B4 and C3 of the Authority’s

Requirements; and

2. all works agreed within the procedures set out in Section C4 of the

Authority’s Requirements have been completed; and

3. the New Project Facilities are safe for use.

A1.1 Construction Completion Tests

Construction Completion Tests shall include:

1. verification of water tightness and integrity of water retaining structures and chemical

storage tanks;

2. visual verification of completion of the installation of all building fabric and services

components including instrumentation and control equipment, cabling and handrails;

3. test of all electrical installation including those set out in the IEE Regulations for

Electrical Installations;

4. tests for signal continuity (electrical, pneumatic, hydraulic);

5. functional testing of each item of mechanical and electrical equipment to demonstrate

correct operation (as far as practical);

292


292

6. simulated operation of random sample automatic control systems, actuators, alarms

etc.;

7. calibration, as far as practical of all instrumentation measuring systems;

8. all lifting beams and lifting apparatus have been tested and fulfilled the requirements

of such test;

9. security and safety measures have been installed in accordance with the Authority’s

Requirements;

10. Appropriate acoustic tests should be undertaken in line with the Authority

Requirements; and

11. Appropriate ventilation and air quality tests should be undertaken in line with the

Authority Requirements.

A1.2 Operational Tests

The Contractor shall demonstrate that all mechanical and electrical plant and

systems operate satisfactorily and in accordance with the Authority's Requirements

and the information provided by the Contractor in the Operational and Maintenance

Proposals and the Authority’s Requirements.

Documentation

Prior to the operational tests the Contractor shall submit to the Authority for comment

a programme detailing its proposals for carrying out the operational tests.

A record of all tests shall be made by the Contractor on approved schedules and

agreed with the Authority’s Representative at the end of each twenty-four hour

period. These records shall be signed by both parties at that time.

A plant log shall be kept by the Contractor during the operational test period. Prior to

the start of the tests the Contractor shall forward the format of the plant log to the

Authority for comment. All operational aspects of the New Project Facilities (e.g.

adjustments, general observations, operational safety issues etc.) shall be recorded

in the plant log. At the end of the operational tests three copies of the plant log shall

be forwarded to the Authority’s Representative.

293


293

Instrumentation and Control Tests

Sensors and all measuring instrumentation shall be calibrated in accordance with the

manufacturers’ instructions.

All items of plant shall be operated in manual and automatic control.

The automatic control equipment shall be tested to ensure compliance with the

Authority’s Requirements.

A.1.3 Test for Authority Equipment

The Contractor shall demonstrate that the items of Authority Equipment listed in

Section 7C of the Authority's Requirements have been installed and are working

reliably and give satisfactory performance in accordance with the Authority’s

Requirements

298


Item Document Parties

15. Construction Direct Agreement Contractor, Building Contractor and the Authority

16. Parent Company Guarantee of FM Agreement

FES Limited, FM Contractor and the Contractor

17. Memorandum and Articles of Association of the Contractor

18 Management Services Agreement

Contractor, HoldCo and Amber Asset Management Limited

19 Employers Agent Appointment Deloitte LLP and the Contractor

20 Interface Agreement Building Contractor, FM Contractor and Contractor

21 Parallel Loan Agreement Building Contractor and Contractor

22 Parallel Loan Agreement FES Limited and Contractor

299


SCHEDULE PART 6

DOCUMENTS

SECTION B

FUNDING AGREEMENTS

Table 1 – Senior Funding Agreements

300


Table 2 – Junior Funding Agreements

301


SECTION A – SCHOOLS PAYMENT MECHANISM

PART 1: DEFINITIONS

“Accommodation Schedule” means the accommodation schedule set out in Section 5 of

the Authority’s Requirements;

“Area” means an area of a New Project Facility identified in the SU Table;

“Authority Year” means each period of 12 calendar months during the period from 1 April

following the Effective Date to the Expiry Date;

“Availability Deductions or AD” means the deductions, (if any) to be deducted from the

third or any subsequent Monthly Unitary Charge(s) as a result of an Area being Unavailable

or Unavailable but Used, or in the case of car parking spaces, the deemed SUA being

deemed Unavailable calculated in accordance with Part 4 of Section A of Schedule Part 7;

“Availability Failure” means a failure (which continues after the expiry of the relevant

Rectification Period) to provide the Services in accordance with the Availability Standards,

other than as a result of:

(a) a default by the Authority as listed in paragraph (a) of the definition of

Authority Default or a breach by the Authority of the express terms of this

Agreement;

(b) an Authority Change or Qualifying Change in Law being carried out in

accordance with the agreed implementation plan;

(c) maintenance being carried out in accordance with the Maintenance

Programme and within the relevant time periods set out in the Maintenance

Programme;

(d) an External Utility Failure, provided that the Contractor is not in receipt of or

due to receive payment for any deductions which would otherwise be due in

respect of such failure under any of the insurances maintained in respect of

business interruption or advance loss of profits to be maintained pursuant to

Clause 61 (Insurance). Nothing in this paragraph (d) shall relieve the

Contractor for failures to provide the Services in accordance with the

302


Availability Standards arising directly from physical damage to the Sites that

occurs as a result of an External Utility Failure where such damage is covered

by insurance maintained or to be maintained pursuant to Clause 61

(Insurance);

(e) an Emergency which is the subject of an instruction by the Authority to the

Contractor under Clause 26 (Emergencies) of this Agreement (save to the

extent that such Emergency is caused by the acts or omissions of the

Contractor or Contractor Related Party);

(f) the proper performance of the Contractor’s obligations relating to Small Works

in the areas and on the dates and times agreed for the performance of Small

Works;

(g) a Services Compensation Event;

(h) the carrying out of a survey pursuant to Clause 24.2 (Surveys) or Clause 41.2

(Final Survey), provided that the survey does not show that the Contractor

has failed to comply with its obligations under Clauses 23.2 (Standard of

Performance) and/or 24.1 (Maintenance);

(i) the Authority exercising its rights under Clause 58 (Authority Step-in) where

Clause 58.4 (Contractor Not in Breach) applies;

(j) the removal of furniture and/or equipment by or on the instruction of the

Authority from the Area in which such furniture and/or equipment should be

installed or located in terms of the room data sheets forming part of the

Authority’s Requirements, save where the Contractor has failed to comply

with an instruction from the Authority to replace such furniture and/or

equipment;

(k) any malfunction or failure of electrical equipment comprised within the

Authority Equipment or Retained Equipment, provided that the Contractor has

demonstrated to the reasonable satisfaction of the Authority’s Representative

that it was not possible to rectify the relevant failure to provide the Services in

accordance with the Availability Standards within the Rectification Period due

to the nature and/or extent of the damage caused by the said equipment;

(l) severe precipitation or frost affecting a sports pitch or pitches at a New Project

Facility provided that such failure (i) is not due to a Latent Defect at such

303


sports pitch or pitches or (ii) could not have been prevented by the Contractor

carrying out its obligations in accordance with this Agreement; or

(m) flooding affecting a sports pitch or pitches at a New Project Facility, where the

direct cause of such flooding is flooding of the River Lossie;

provided (for the avoidance of doubt) that if an Availability Failure is attributable to a failure

to meet an Availability Standard which, in terms of the Services Specification, shows two

Rectification Periods, one described as “temp” and the other “perm”, and there has been a

failure to meet the Availability Standard in both Rectification Periods, there shall only be one

Availability Failure, the Rectification Period for which shall be determined by reference to the

“perm” period;

“Availability Standards” means the service standards set out in the Services Specification

in the column headed “Availability Standards”;

“Community Use Representative” means the duty officer at Elgin Community Centre

and/or Keith Community Centre;

“Core Times” means save where otherwise expressly stated herein, at each New Project

Facility each of the periods set out in the table comprising Section D of this Schedule Part 7

(“Core Times Table”) during each Contract Year;

“Day” means a period of 24 hours commencing at 0000 hours during which there are Core

Times;

“Deduction” means an Availability Deduction, a Performance Deduction, a Repeated

Failure Deduction, a Reporting Failure Deduction, an Exam Area Failure Deduction, an

External Works Deduction or a Grass Pitch Deduction as the case may be provided that for

the purposes of Clauses 35.1.8 and 37.1 of this Agreement the term Deductions shall not

include External Works Deductions or Grass Pitch Deductions;

“Deduction Factor or DF” means, for the purpose of calculating a Performance Deduction

the relevant percentage set out in the relevant Deduction Look-up Table;

“Deduction Look-up Table” means the table identified in Paragraph 3 of Part 4 of Section

A of Schedule Part 7;

“Deduction Period or DP” means, for the purpose of calculating either an Availability

Deduction or a Performance Deduction, the number of Days failure:

304


(a) where the Logged Failure Time occurs during Core Times relating to the Area in

respect of which there has been a failure to provide any of the Services in

accordance with the Availability Standards or the Performance Standards in a

particular Day (“Day 1”), the number of Days that elapse from and including, Day 1

to, and including, the Day on which the Logged Rectification Time occurs but

excludes the Day on which the Logged Rectification Time occurs if this occurs prior

to the commencement of Core Times relating to that Area on that Day; and

(b) where the Logged Failure Time occurs outwith Core Times relating to the Area in

respect of which there has been a failure to provide any of the Services in

accordance with the Availability Standards or the Performance Standards:

(i) prior to commencement of Core Times relating to that Area on that Day (“Day

1”) the number of Days that elapse from and including Day 1 to and including

the Day on which the Logged Rectification Time occurs excluding the Day on

which the Logged Rectification Time occurs if the Logged Rectification Time

occurs prior to commencement of Core Times relating to that Area on that

Day; or

(ii) after the expiry of Core Times relating to that Area on that Day the number of

Days that elapse from and including the next Day (“Day 1”) to, and including,

the Day on which the Logged Rectification Time occurs but excluding the Day

on which the Logged Rectification Time occurs if this occurs prior to

commencement of Core Times relating to that Area on that Day.

“Exam Area” means any of the following Areas of Elgin Academy:

(a) Assembly Hall provided that the Assembly Hall shall not be designated an Exam Area

for more than 60 days in any Academic Year;

(b) any rooms identified as Art & Design rooms in the Accommodation Schedule provided

that not more than 3 such rooms shall be designated Exam Areas and for not more

than 10 days in any Academic Year;

(c) any rooms identified as Graphic Communications rooms in the Accommodation

Schedule provided that not more than 3 such rooms shall be designated Exam Areas

and for not more than 8 days in any Academic Year; and/or

(d) any rooms identified as Music rooms in the Accommodation Schedule provided that

not more than 3 such rooms shall be designated Exam Areas and for not more than 5

days in any Academic Year;

305


which are designated in writing by notice from the School Representative to the Contractor

Representative not less than 4 weeks in advance of the intended date of use of the Area for

such purpose and only for the period of such designation in which SQA Examinations and

S3 Examinations are conducted at that New Project Facility;

“Exam Area Failure” has the meaning given in Paragraph 7 of Part 4 of Section A of this

Schedule Part 7;

“Exam Multiplier” means, for the purpose of calculating the EAFD, 3;

“Exam Area Failure Deduction or EAFD” means the total deduction (if any) from the

Monthly Unitary Charge for an Exam Area Failure calculated in accordance with Paragraph 7

of Part 4 of Section A of this Schedule Part 7;

“External Utility Failure” means a failure in:

(i) the supply to a Site of mains gas, electricity, water, telecommunications; or

(ii) the service and facility of discharging water and sewerage from a Site,

where such failure originates on the side of the Utilities Entry Point owned or controlled by

the relevant Network Provider, provided that such failure does not arise due to an act or

omission of the Contractor or any Contractor Related Party

“External Works Deduction” means the deduction (if any) from the Monthly Unitary

Charge for the second or any subsequent Payment Period as a result of a failure to achieve

External Works Availability on or before the Target External Works Availability Date,

calculated in accordance with Paragraph 8 of Part 4 of Section A of Schedule Part 7;

“Failure” means an Availability Failure or a Performance Failure;

“Grass Pitch Deduction” means the deduction (if any) from the Monthly Unitary Charge for

the second or any subsequent Payment Period as a result of a failure to achieve Grass Pitch

Availability on or before the Target Grass Pitch Availability Date, calculated in accordance

with Paragraph 9 of Part 4 of Section A of Schedule Part 7;

“Helpdesk” means the helpdesk facilities established by the Contractor pursuant to the

Services Specification;

“Helpdesk Representative” means any person authorised by the Authority to call the

Helpdesk from time to time in addition to those other persons listed in the definition of

Logged Failure Time and in Paragraph 9.1 of Part 5 of Section A of this Schedule Part 7

306


(Payment Mechanism) provided that: (i) such authorisation is notified in advance and in

writing to the Contractor and (ii) no more than three (3) people shall be so authorised at any

time;

“Indexation Adjustment or IA” means, in respect of any Authority Year:

IA = 1 + (Ij – I j-1)/ I j-1)

where:

Ij = the RPI for the month of February in Year n-1; and

Ij-1 = the RPI for the month of February in Year n-2;

Save for the first Indexation Adjustment applied on 1 April 2011 where I(j-1) is the value of RPI

for the month of February 2010;

“Indexation Fixed Adjustment” or “IFA” means, in respect of any Authority Year, 1.025;

“Logged Failure Time” means the date and time which is shown in the Helpdesk records

maintained by the Contractor in accordance with the Services Specification as being the

date and time at which a failure to provide Services in accordance with the Availability

Standards or Performance Standards was intimated by email, fax or a telephone call to the

Helpdesk, or if a failure affecting the Helpdesk occurs, to a janitor at the New Project Facility,

by the Authority’s Representative, the School Representative, a Community Use

Representative, a Helpdesk Representative, any Authority Employee in an emergency, the

Contractor, the FM Contractor and/or any sub-contractor of the Contractor and/or FM

Contractor or if a failure affecting the Helpdesk occurs, as shown on the manual Helpdesk

records maintained by the Contractor or a janitor to whom a failure is intimated;

“Logged Rectification Time” means the time which is shown in the Helpdesk records

maintained by the Contractor in accordance with the Services Specification as being the time

of rectification of a failure to provide Services in accordance with the Availability Standards

or Performance Standards for which there is a logged rectification time or in the event that a

failure affecting the Helpdesk occurs as shown on the manual Helpdesk records maintained

by the Contractor;

“Monthly Net Charge(s) or MNC(s)” means for each Payment Period, the amount

calculated in accordance with Paragraph 2 of Part 3 of this Section A of Schedule Part 7;

“Monthly Unitary Charge(s) or MUC(s)” means the Unitary Charge divided by 12 except

for any Payment Period occurring prior to the first full Contract Year after the last New

307


Project Facility’s Service Availability Date in which case the Monthly Unitary Charge(s) shall

be calculated in accordance with Paragraph 1 of Part 3 of this Section A of Schedule Part 7.

Where the Termination Date falls part way through a Payment Period, the MUC(s) will be

calculated on a pro rata basis to reflect the number of days in the Payment Period prior to

the Expiry Date, or as the case may be, Termination Date;

“Multiplier or M” means, for the purpose of calculating the Repeated Failure Deduction and

the Deductions made pursuant to paragraph 3B (Snagging), 1.5;

“Network Provider” means the provider, in each case, of mains gas, electricity, water or

telecommunications to each New Project Facility or the service and facility of discharging

water and sewerage from each New Project Facility

“Non Area Specific Item” means any item identified as a Non Area Related Standard in

Column 4 of the Services Specification;

"Normalisation Period" as defined in Paragraph 6.2.2 of Part 6 of Section A of Schedule

Part 7 (Payment Mechanism);

“Performance Deduction or PD” means the deduction (if any) from the Monthly Unitary

Charge for the third or any subsequent Payment Period as a result of a Performance Failure,

calculated in accordance with Paragraph 3 of Part 4 of Section A of Schedule Part 7;

“Performance Failure” means a failure (which continues after the expiry of the relevant

Rectification Period) to provide the Services in accordance with the Performance Standards,

other than as a result of:

(a) a default by the Authority as listed in paragraph (a) of the definition of

Authority Default or a breach by the Authority of the express terms of this

Agreement;

(b) an Authority Change or Qualifying Change in Law being carried out in

accordance with the agreed implementation plan;

(c) maintenance being carried out in accordance with the Maintenance

Programme and within the relevant time periods set out in the Maintenance

Programme;

(d) an External Utility Failure, provided that the Contractor is not in receipt of or

due to receive payment for any deductions which would otherwise be due in

respect of such failure under any of the insurances maintained in respect of

business interruption or advance loss of profits to be maintained pursuant to

308


Clause 61 (Insurance). Nothing in this paragraph (d) shall relieve the

Contractor for failures to provide the Services in accordance with the

Performance Standards arising directly from physical damage to the Sites that

occurs as a result of an External Utility Failure where such damage is covered

by insurance maintained or to be maintained pursuant to Clause 61

(Insurance);

(e) an Emergency which is the subject of an instruction by the Authority to the

Contractor under Clause 26 of this Agreement (save to the extent that such

Emergency is caused by the acts or omissions of the Contractor or any

Contractor Related Party);

(f) the proper performance of the Contractor’s obligations relating to Small Works

in the areas and on the dates and times agreed for the performance of Small

Works;

(g) a Services Compensation Event;

(h) the carrying out of a survey pursuant to Clause 24.2 (Surveys) or Clause 41.2

(Final Survey), provided that the survey does not show that the Contractor

has failed to comply with its obligations under Clauses 23.2 (Standard of

Performance) and/or 24.1 (Maintenance);

(i) the Authority exercising its rights under Clause 58 (Authority Step-in) where

Clause 58.4 (Contractor Not in Breach) applies;

(j) the removal of furniture and/or equipment by or on the instruction of the

Authority from the Area in which such furniture and/or equipment should be

installed or located in terms of the room data sheets forming part of the

Authority’s Requirements, save where the Contractor has failed to comply

with an instruction from the Authority to replace such furniture and/or

equipment;

(k) any malfunction or failure of electrical equipment comprised within the

Authority Equipment or Retained Equipment, provided that the Contractor has

demonstrated to the reasonable satisfaction of the Authority’s Representative

that it was not possible to rectify the relevant failure to provide the Services in

accordance with the Availability Standards within the Rectification Period due

to the nature and/or extent of the damage caused by the said equipment;

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(l) severe precipitation or frost affecting a sports pitch or pitches at a New Project

Facility provided that such failure (i) is not due to a Latent Defect at such

sports pitch or pitches or (ii) could not have been prevented by the Contractor

carrying out its obligations in accordance with this Agreement; or

(m) flooding affecting a sports pitch or pitches at a New Project Facility, where the

direct cause of such flooding is flooding of the River Lossie;

provided (for the avoidance of doubt) that if a Performance Failure is attributable to a failure

to meet a Performance Standard which, in terms of the Services Specification, shows two

Rectification Periods, one described as “temp” and the other “perm”, and there has been a

failure to meet the Performance Standard in both Rectification Periods, there shall only be

one Performance Failure, the Rectification Period for which shall be determined by reference

to the “perm” period;

“Performance Standards” means the service standards set out in the Services

Specification in the column headed “Performance Standards”;

“Prolonged Rectification Deduction Factor or PRDF” means the factor to be applied in

the calculation of an Availability Deduction as set out in the Prolonged Rectification

Deduction Factor Look-up Table in Paragraph 6 of Part 4 of Section A of this Schedule Part

7;

“Prolonged Rectification Failure” has the meaning given in Paragraph 6 of Part 4 of

Section A of this Schedule Part 7;

“Rectification Period” means the number of hours or Days as specified in Column 6 of the

Services Specification allowed for the rectification of any failure to meet the Availability

Standards or Performance Standards which Rectification Period:

(a) shall commence at the Logged Failure Time (if the Logged Failure Time occurs

during Core Times); or

(b) if the Logged Failure Time occurs outwith Core Times, shall commence at the

commencement of the immediately following Core Times; or

(c) if the Logged Failure Time occurs during Core Times but outwith School Hours and

the Area affected by such failure is not required for use during such Core Times as

determined by the Authority, shall commence at the commencement of the

immediately following Core Times; and

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(d) be extended by any period during which the Contractor was prevented or interrupted

by the Authority and any person listed in paragraph a) of the definition of Authority

Related Party from rectifying any failure to meet the Availability Standards or

Performance Standards;

“Repeated Failure” means the occurrence of the events set out in Paragraph 4 of Part 4 of

Section A this Schedule Part 7;

“Repeated Failure Deduction or RFD” means the total deduction (if any) from the Monthly

Unitary Charge for a Repeated Failure calculated in accordance with Paragraph 4 of Part 4

of Section A of Schedule Part 7;

“Reporting Failure” means a failure by the Contractor to make a deduction in a

Performance and Payment Report in respect of an event which ought to give rise to a

Deduction from the Monthly Unitary Charge;

“Reporting Failure Deduction or RD” means a deduction (if any) from the Monthly Unitary

Charge as a result of a Reporting Failure calculated in accordance with Paragraph 5 of Part

4 of Section A of Schedule Part 7;

“S3 Examinations” means those formal examinations to be sat by third year pupils (which,

for information only, are usually timetabled in April each year in the weeks prior to the SQA

Examination) and for the purposes of the definition of Exam Area will affect the Assembly

Hall only;

“SQA Examinations” means those examination prescribed by the Scottish Qualifications

Authority (or any successor or replacement authority) (which, for information only, are

usually timetabled from April – June each year) and the mock examinations relating to such

examinations (which, for information only, are usually timetabled in January and February

each year);

“Service Response Priority Level 1, 2, 3, or 4” means the priority level for the purpose of

determining the Deduction Factor and the Rectification Period as set out in the Services

Specification;

“Service Unit Base Rate or SUBR”

“Service Unit Fixed Rate” or “SUFR”

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“Service Unit Indexation Rate” or “SUIR”

“Service Unit Rate or SUR”

“Service Units or SU” means the number of Service Units attributable to each Area within

the New Project Facilities as set out in the SU Table;

“Service Units Affected or SUA” means in respect of any Failure the number of Service

Units affected by such Failure;

“Service Units per School or SUS” means the SU attributable to each New Project Facility

in respect of which the Service Availability Date has occurred, as detailed in the following

table:

New Project Facility SU

Elgin Academy 1463

Keith Primary 534

“SU Table” means the table comprising Section C of this Schedule Part 7;

“Teaching Space SU” means each SU identified by an “X” in the column headed

“Education” in the SU Table;

“Total School Days or TSD” means 195 and will not be adjustable in any Contract Year for

variations in the number of School Days due to the timing of Easter holidays;

“Total Service Units or TSU” means the total number of Service Units attributable to the

New Project Facilities as set out in the SU Table;

“Unavailable /Unavailability” means, in relation to any Area the continuation after the

expiry of the relevant Rectification Period of an Availability Failure affecting that Area (unless

that Area is Unavailable but Used) provided that an Area will not become Unavailable:

(a) for the first Day of an Availability Failure, if the Authority in its sole discretion, elects

to use suitable alternative accommodation within the relevant New Project Facility;

or

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(b) for the first 2 Days of an Availability Failure (or such longer period as the Authority

may in its sole discretion agree) if the Contractor provides suitable alternative

provision outwith the relevant permanent New Project Facility buildings (acceptable

to the Authority acting reasonably) in a location within the town boundaries where

the New Project Facility is situated together with transport facilities; or

(c) if it would not be required for use after the expiry of the relevant Rectification Period

during Core Times (under exception of School Hours) within a School Day as

determined by the Authority;

“Unavailable but Used” means in relation to any Area of a New Project Facility that the

relevant Area is Unavailable but is used by the New Project Facility for its normal purpose at

any time (apart from the purposes of evacuating the Areas and the time taken for such

evacuation) during the Core Times including for the avoidance of doubt, for the provision of

Educational Services and Community Use during which it would otherwise be Unavailable;

“Utilities Entry Point” means in the case of oil, mains gas, electricity, telecommunications,

water or the service and facility of discharging water or sewerage, the point on the Site of the

New Project Facility where risk in the supply of the relevant utility, service or facility transfers

from the Network Provider to the Contractor;

“Whole School Unavailability” means an Availability Deduction for the whole New Project

Facility there being deemed to be an Availability Failure affecting all Areas of a New Project

Facility if any of the following Whole School Unavailability conditions occur:

(a) the Whole School Unavailability Threshold is exceeded;

(b) the toilet provision breaches Legislation including the Education (Schools Premises)

Regulations 1992 Part II School Facilities which shall for the purposes of this

Agreement be deemed to apply in Scotland;

(c) any failure of the Contractor to ensure that no unauthorised person(s) gain access to

the Buildings through a failure of the installed security systems and/or the

Contractor’s security procedures ; or

(d) any failure by the Contractor to provide the Services in accordance with the

Availability Standards which results in the Authority being unable to provide catering

at any New Project Facility.

“Whole School Unavailability Threshold or WSUT” means

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(a) in respect of the New Project Facility at Elgin Academy, 30% or more of the total

Service Units for that New Project Facility are Unavailable or Unavailable but Used or

30% of the Teaching Space SUs for that New Project Facility are Unavailable or

Unavailable but Used; and

(b) in respect of the New Project Facility at Keith Primary, 50% or more of the total

Service Units for that New Project Facility are Unavailable or Unavailable but Used or

50% of the Teaching Space SUs for that New Project Facility are Unavailable or

Unavailable but Used.

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SCHEDULE PART 7

PAYMENT MECHANISM

SECTION A

PART 2: NOT USED

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SCHEDULE PART 7

PAYMENT MECHANISM

SECTION A

PART 3: PAYMENT PROVISIONS

1. Payment During the Services Period

(a) Prior to the first full Contract Year after the last Service Availability

Date the Monthly Unitary Charge(s) shall be:

)/()( 12TSDSUSxSURxnMUC

where;

n = the relevant Payment Period

Where a Service Availability Date falls part way through a Payment Period, the SUS

in respect of that New Project Facility shall be reduced on a pro rata basis to reflect

the number of days in that Payment Period by multiplying it by:

Dx/Dn

where:

Dx = the number of days from and including the Service Availability Date for that

New Project Facility to the end of the relevant Payment Period

Dn = the number of days in that Payment Period

Where a Service Availability Date occurs on or after the date of issue of the Monthly

Invoice, the MUC in relation to that New Project Facility for that Payment Period shall

be included within the next Monthly Invoice.

(b) The Unitary Charge for the first full Contract Year following the last

New Project Facility’s Service Availability Date and for each Contract

Year thereafter shall be calculated as follows:

UC = TSU x SUR x TSD

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2.

The Monthly Net Charge(s) for the first two Payment Periods following the Service

Availability Date of the first New Project Facility shall be Monthly Unitary Charge(s).

The Monthly Net Charge(s) for each subsequent Payment Period shall be:

(a) the Monthly Unitary Charge(s); minus

(b) the aggregate of the Deductions calculated by reference to the

Payment Period n-2, namely:

(i) the Availability Deductions (if any); and

(ii) the Performance Deductions (if any); and

(iii) the Reporting Failure Deductions (if any);

(iv) the Repeated Failure Deductions (if any);

(v) the Exam Area Failure Deductions (if any);

(vi) the External Works Deductions (if any); and

(vii) the Grass Pitch Deductions (if any);

that is to say:

MNC(s) = MUC(s) – AD – PD – RD – RFD – EAFD – EWD – GPD

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SCHEDULE PART 7

PAYMENT MECHANISM

SECTION A

PART 4: DEDUCTIONS

1. Maximum Deduction

If the sum of the Deductions in a Payment Period is greater than the Monthly Unitary

Charge(s) then the Deductions shall be limited to the amount of the Monthly Unitary

Charge(s).

2. Availability Deductions

The Availability Deductions for each Payment Period shall be calculated for each Day

during which an Availability Failure occurs which renders any Area Unavailable or

Unavailable but Used. This will be ascertained by applying the following formulae in

respect of each instance of Unavailability or Unavailable but Used and then taking

the sum of the products of such calculations, that is to say:

(a) for each instance of Unavailability:

SUA x SUR x DP x PRDF;

(b) for each instance of Unavailable but Used:

SUA x SUR x DP x PRDF x 0.5

Notwithstanding the foregoing:

(A) if on the relevant Day, any of the Whole School Unavailability conditions are

met, then the SUA shall be deemed to be the SUS for the relevant New

Project Facility and the formula in Paragraphs 2(a) and/or 2(b) as the case

may be above calculated accordingly; and

(B) where two or more Availability Failures occur during a Day and the same

Service Units are affected, only one Availability Deduction shall apply in

respect of those Service Units at such time, being the Availability Failure that

produces the highest Availability Deduction.

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3. Performance Deductions

Performance Deductions for each Payment Period shall be calculated by applying the

following formula for each Performance Failure and each Performance Deduction

shall be:

SUA x SUR x DF x DP,

All Performance Deductions shall be aggregated for each Payment Period.

The Deduction Factor to be applied in the calculation of a Performance Deduction

shall equal the percentage shown in the Deduction Look-up Table. The Deduction

Factor is dependent on the Service Response Priority Level for each Performance

Failure and the number of Performance Failures (including this one) which have

occurred during the Payment Period.

The Performance Deductions in any Payment Period shall not exceed 30% of the

Monthly Unitary Charge(s).

No Deduction will be made in respect of Service Units Affected by a Performance

Failure for any Day in respect of which the same Service Units Affected have been

subject to an Availability Deduction as calculated in accordance with Paragraphs 2(a)

or 2(b).

Where two or more Performance Failures occur during a Day and the same Service

Units are affected, only one Performance Deduction shall apply in respect of those

Service Units at such time, being the Performance Deduction that produced the

highest Performance Deduction.

Performance Deduction Look-Up Table (% of Service Unit Rate)

Performance Failures occurring in each Payment Period of the same Performance Standard in the same Area and having the same Service Response Priority Level

Service Response Priority Level

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1 2 3 4

1 50% 30% 20% 10%

2 55% 40% 25% 10%

3 55% 50% 35% 15%

4 55% 50% 50% 30%

5 60% 50% 50% 50%

6 or more 65% 55% 50% 50%

3A Non Area Specific Items

Performance Deductions in relation to Non Area Specific Items

3A.1 Where there is a Performance Failure in respect of any Non Area Specific Item, then

there shall be deemed to be Service Units Affected as set out below:-

(i) where the Non Area Specific Item relates to an item with a Service Response

Priority Level of 1 then the Service Units Affected shall be deemed to be 7;

(ii) where the Non Area Specific Item relates to an item with a Service Response


(iii) where the Non Area Specific Item relates to an item with a Service Response


(iv) where the Non Area Specific Item relates to an item with a Service Response

Priority Level of 4 then the Service Units Affected shall be deemed to be 4.

3A.2 Where the relevant percentage of Unavailable car parking spaces is within the first

column of the table set out below, there will be deemed, in respect of the relevant

New Project Facility, to be Service Units Affected as set out in the second column of

the relevant table below.

Table 1

Percentage of Car Parking Spaces Unavailable at Elgin Academy

Deemed SUA

Number of Car Parking Spaces at Elgin Academy

0% - 19% 0 0-38

20% - 39% 5 40-79

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40% - 59% 15 81-120

60% - 79% 25 121-160

80% - 100% 35 162-202

Percentage of Car Parking Spaces Unavailable at Keith Primary

Deemed SUA

Number of Car Parking Spaces at Keith Primary

0% - 19% 0 0-14

20% - 39% 5 15-29

40% - 59% 15 30-43

60% - 79% 25 44-58

80% - 100% 35 59-73

Snagging Deductions

3B.1 If 20 Business Days after the issue of any Acceptance Certificate (or such longer

period as may be agreed pursuant to Clause 21.5.1 (Issue of an Accepted

Certificate)) the Contractor has not completed the Snagging Works, then, with effect

from such date, any Availability Deduction or Performance Deduction arising from the

failure to complete such Snagging Works shall be multiplied by the Multiplier and

shall be the Availability Deduction or Performance Deduction as the case may be.

3B.2 Paragraph 3B.1 above shall not apply with effect from the date upon which the

Authority exercises its rights to undertake the Snagging Works giving rise to the

relevant Availability Deduction or Performance Deduction, pursuant to Clause 21.8.3.

4. Repeated Failure Deductions

If a Failure of the same Availability Standard in the same Area or a failure of the

same Performance Standard with the same Service Response Priority Level in the

same Area (other than by reason of a Relief Event or a Force Majeure Event) occurs

4 or more times in 3 consecutive Payment Periods at the same New Project Facility

or 12 or more times in 3 consecutive Payment Periods at any New Project Facility

(across all of the New Project Facilities) then the Availability Deduction or the

Performance Deduction, as the case may be, shall be multiplied by the Multiplier to

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produce the RFD provided that the RFD shall be applied instead of, and not in

addition to, the Availability Deduction or Performance Deduction that would otherwise

be made in respect of the 4 h or 12th occurrence respectively and each subsequent

occurrence of the Repeated Failure over such 3 month period. For the avoidance of

doubt, Repeated Failures shall be counted over a rolling 3 month period.

5. Reporting Failure Deductions

If it is agreed or determined that there has been a Reporting Failure in calculating the

Monthly Net Charge(s) for the Payment Period which is corrected by the Contractor

prior to payment of the relevant invoice by the Authority, no Reporting Failure

Deduction shall apply. Subject as aforesaid, if it is agreed or determined that there

has been at any time within the previous 6 Payment Periods a Reporting Failure in

calculating a Monthly Net Charge(s), then for the Payment Period during which such

agreement is reached or determination is made, the Contractor shall:

(a) make the Deduction (the subject of the Reporting Failure), from the

relevant Monthly Unitary Charge(s) relating to that Payment Period and in

addition

(b) make a Reporting Failure Deduction, being a deduction of a sum equal to

25% of the Deduction referred to in (a) above (or 50% of the Deduction

where it is agreed or determined that the Reporting Failure has been due

to fraud or wilful default of the Contractor or a Contractor Related Party).

Where, as a result of a Reporting Failure at any time within the previous 6 Payment

Periods, a Deduction has not been made and that same Deduction should have

resulted in the application of a Repeated Failure Deduction, the Contractor shall:

(a) make the Repeated Failure Deduction from the next Monthly Unitary

Charge(s); and

(b) make a Reporting Failure Deduction as a percentage of the Repeated

Failure Deduction from the next Monthly Unitary Charge(s)

Where a Deduction has been made, but it has been identified that as a result of a

Reporting Failure such Deduction was incorrectly calculated because the Availability

Failure or Performance Failure giving rise to such Deduction was in fact a Repeated

Failure occurring within the previous 6 Payment Periods and in calculating the

Deduction a Repeated Failure should have applied, the Contractor shall:

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For the avoidance of doubt the Prolonged Rectification Deduction Factor for any

Availability Failure where the Logged Rectification Time occurs on or before the

expiry of the Rectification Period shall be 100%.

7.

If an Availability Failure occurs in an Exam Area (other than by reason of a Relief

Event, a Force Majeure Event, a Works Compensation Event or a Services

Compensation Event) (“an Exam Area Failure”) then the Availability Deduction shall

be multiplied by the Exam Multiplier to produce the EAFD provided that the EAFD

shall be applied instead of, and not in addition to, the Availability Deduction that

would otherwise be made in respect of the Availability Failure.

8.

8.1 Where the External Works Availability Date for Elgin Academy does not occur on or

prior to the Target External Works Availability Date for Elgin Academy, the External

Works Deductions in respect of Elgin Academy shall equate to a daily rate of 7% of

the MUC attributable to Elgin Academy divided by the number of days in the relevant

Payment Period for each day after the Target External Works Availability Date for

Elgin Academy up to and including the External Works Availability Date for Elgin

Academy.

8.2 Where the External Works Availability Date for Keith Primary School does not occur

on or prior to the Target External Works Availability Date for Keith Primary School,

the External Works Deductions in respect of Keith Primary School shall equate to a

daily rate of 3% of the MUC attributable to Keith Primary School divided by the

number of days in the relevant Payment Period for each day after the Target External

Works Availability Date for Keith Primary School up to and including the External

Works Availability Date for Keith Primary School.

9.

Where the Grass Pitch Availability Date does not occur on or prior to the Target

Grass Pitch Availability Date the Grass Pitch Deductions shall equate to a daily rate

of 7% of the MUC attributable to the relevant New Project Facility divided by the

number of days in the relevant Payment Period for each day after the Target Grass

Pitch Availability Date up to and including the Grass Pitch Availability Date.

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SCHEDULE PART 7

PAYMENT MECHANISM

SECTION A

PART 5: MONITORING

Monitoring of all Services

1. General Monitoring and Reporting Obligations

1.1 The Contractor shall, for each New Project Facility:

1.1.1 monitor the performance of each of the Services and/or procure that each of

the Services is so monitored against the Services Specification, the

Availability Standards and the Performance Standards;

1.1.2 maintain records in connection with any Availability Failures and

Performance Failures occurring in the New Project Facilities; and

1.1.3 provide the information for the Performance and Payment Report to the

Authority in respect of each Payment Period in accordance with Clause 33,

containing the results of its monitoring of the provision of the Services in

respect of that Payment Period.

1.2 The general principle underlying the monitoring system is one of self monitoring by

the Contractor together with the right for the Authority, without prejudice to the

Contractor’s general obligation to monitor, to carry out its own monitoring in

accordance with Paragraph 11 hereof, if and when it requires, in order to evaluate the

Contractor’s monitoring and its attainment of the standards required of it in the

Services Specification.

2. Performance Monitoring

2.1 The parties shall in respect of each of the Services, no later than three months prior

to the first Service Availability Date, agree a detailed monitoring and reporting

procedure which shall:

2.1.1 comply in all material respects with this Part 5 of Section A of Schedule Part

7; and

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2.1.2 be based on methods and recording frequencies to be agreed.

2.2 The parties shall meet at regular intervals (and at least monthly) to discuss any

Performance Failures and Availability Failures occurring in the previous Payment

Period to amend (if agreed) the monitoring and reporting procedures and to decide

on any other matters relating to monitoring and reporting of the Services.

2.3 The Contractor shall monitor its performance in providing the Services by reviewing

all available information and records and preparing the Performance and Payment

Reports in the manner and frequency set out in Clause 33. The Contractor shall

prepare such Performance and Payment Reports in good faith and in accordance

with Good Industry Practice. Where and when required, the Contractor shall ensure

that different areas of each New Project Facility are inspected and at different times

during each Payment Period, provided that the Authority shall be entitled to request

that particular areas of any New Project Facility are to be inspected in the next

following Payment Period.

3. Records and Possession of Information

3.1 The Contractor shall provide the Authority on a regular basis with up to date

organisation charts. The Authority shall be notified as soon as reasonably possible of

any amendment to organisation chart supplied to it.

3.2 The Contractor shall procure that each Contractor Related Party keeps evidence of

all relevant training and instruction of its employees engaged in the provision of the

Services together with relevant certificates and qualifications, and copies of the same

shall be provided to the Authority on request.

3.3 The Contractor shall keep a record of all accidents or incidents occurring to or

witnessed by any employee of the Contractor or any Contractor Related Party and

shall as soon as possible following a request by the Authority provide a copy to the

Authority.

3.4 The Contractor shall, and shall use best endeavours to procure that each Contractor

Related Party shall, take part in any quality group or committee or other forum set up

by the Authority whose task it is to enhance the quality of any of the Services

provided within the New Project Facilities or to deal with related health and safety

issues. The Contractor shall, and shall use best endeavours to procure that each

Contractor Related Party shall, co-operate with such persons and committees and,

wherever possible and practicable, take into account the suggestions and directions

of such persons or Committee.

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5.1.3 record and manage all queries, notifications and complaints made by the

Authority, the Contractor, the FM Contractor, any sub-contractor of the

Contractor or the FM Contractor or any user of the Services;

5.1.4 record time and details of any failure to meet the Availability Standards

and/or Performance Standards; and

5.1.5 record time and details of the rectification of any failure to meet the

Availability Standards and/or Performance Standards.

6. Reporting

6.1 The Contractor shall procure that the Contractor’s Representative prepares and

delivers to the Authority’s Representative the following documents:

6.1.1 a monthly performance review which shall identify the Contractor’s Related

Parties’ performance against each Availability Standard and Performance

Standard in the Services Specification such document to be within the

Performance and Payment Report; and

6.1.2 a Performance and Payment Report in the form set out in Clause 33 and

Paragraph 7 below.

6.2 The Contractor shall keep proper records and retain documents relating to the

monitoring of the Services and keep a record of Logged Failure Times and Logged

Rectification Times in respect of all notifications of breaches of Availability Standards,

breaches of Performance Standards, Availability Failures and Performance Failures.

The Authority shall at all reasonable times and with prior written notice have access

to and the right to reproduce such records and documents for the purpose of auditing

the monitoring of Services and co-ordinating such action as is necessary to rectify

such breaches of Availability Standards, breaches of Performance Standards,

Availability Failures and Performance Failures.

7. Performance and Payment Report

7.1 The Contractor shall deliver to the Authority a Performance and Payment Report in

accordance with Clause 33 which shall, in addition to the items listed in Clause 33, as

a minimum include:

7.1.1 the information recorded or logged by the Helpdesk pursuant to the Services

Specification;

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7.1.2 a summary of the overall performance of the Services in each New Project

Facility;

7.1.3 a breakdown of the performance of the Services, service by service, New

Project Facility by New Project Facility and New Project Facility by service;

7.1.4 graphs showing trends in the performance of the Services detailed in

Paragraphs 7.1.2 and 7.1.3 for the relevant Payment Period, over each

Payment Period during the first and second Contract Years and over the

preceding 24 Payment Periods thereafter;

7.1.5 details of all monitoring of the performance of the Services pursuant to

Paragraph 4 of this Part 5 or any of them undertaken or to be undertaken by

or on behalf of the Contractor and/or the FM Contractor including when they

were undertaken or are to be undertaken, by whom and the results of them;

7.1.6 where there have been deficiencies in the performance of the Services or

any of them, details of the corrective actions taken or to be taken, by the

Contractor and/or the FM Contractor to remedy the same;

7.1.7 details of training undertaken or to be undertaken and a summary of any

employment issues;

7.1.8 record all accidents and health and safety incidents occurring to or

witnessed by the FM Contractor or the Contractor;

7.1.9 details of each Utility (excluding telephones) consumed in each New Project

Facility giving the data required in terms of Part 6 of Section A of Schedule

Part 7 (Utilities);

7.1.10 a summary of any changes agreed between the Parties pursuant to Clauses

55 and 55A and which affect the Services; and

7.1.11 such other information as the Authority may reasonably require.

8. Monitoring of Performance Standards

8.1 The monitoring and reporting procedures set out in or derived under this Part 5 of

Section A of Schedule Part 7 shall constitute the mechanism by which attainment of

the standards of performance required for each of the Services is measured.

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8.2 The Performance Standards shall be monitored by methods and at frequencies which

are to be agreed.

9.

9.1 If any of the Authority’s Representative, the School Representative, a Community

Use Representative, a Helpdesk Representative, any Authority Employee in an

emergency, the Contractor, the FM Contractor and any sub-contractor of the

Contractor or FM Contractor believes that a breach of an Availability Standard and/or

of a Performance Standard has occurred it shall inform the Helpdesk immediately of

the breach of an Availability Standard and/or of a Performance Standard and the

Areas that are affected by the breach of an Availability Standard and/or Performance

Standard by email, fax or telephone.

9.2 When the Contractor has rectified the breach of an Availability Standard and/or of a

Performance Standard it shall immediately inform the Helpdesk and such time shall

be logged as the Logged Rectification Time and the Helpdesk shall promptly notify

the School Representative of such rectification.

10.

10.1 The monitoring and reporting procedure set out in this Part 5 of this Section A of

Schedule Part 7 and the Services Specification shall constitute the mechanism by

which a record of Unavailability is maintained.

10.2 The procedure for declaring Unavailability of any of the New Project Facilities shall be

that set out in Paragraph 10.3.

10.3

10.3.1 If the Authority believes that an Area is Unavailable then the Authority shall,

as soon as reasonably practicable thereafter, give notice to the Helpdesk

(“Authority Unavailability Notice”), and provide the following information:

(a) the Area which the Authority considers to be Unavailable;

(b) the time (or estimated time) at which the Area became Unavailable;

and

(c) the reasons why the Authority believes the Area is Unavailable.

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10.3.2 If the Contractor determines that any Area is Unavailable prior to the

provision of the Authority Unavailability Notice, the Contractor shall

immediately serve a notice on the Authority (“Contractor Unavailability

Notice”), which shall contain the information referred to in Paragraph 10.3.1.

10.3.3 The Authority Unavailability Notice or, as the case may be, the Contractor

Unavailability Notice shall be given to the Helpdesk as expeditiously as

practicable in any of the following forms:

(a) in any reasonable written form;

(b) orally provided that basic written confirmation thereof is given before

the end of the next Business Day; or

(c) such electronic method of transmission as may be reasonably

appropriate.

10.4

10.4.1 The Contractor shall promptly investigate the facts and as soon as

practicable thereafter respond to the Authority notifying it of the following:

(a) whether or not it agrees with the notification of the Authority given in

accordance with Paragraph 10.3.1 and, if not, the issues of

disagreement;

(b) if Unavailability is agreed, the steps that the Contractor will take to

ensure that the Area meets the Availability Standards;

(c) the time it is expected to take before the Area ceases to be

Unavailable; and

(d) details of any suitable alternative provision (if any) proposed at that

time by the Contractor.

10.4.2 The Authority and the Contractor shall offer each other all reasonable co-

operation with a view to minimising the period of time during which an Area

is Unavailable.

10.5 When the Contractor has remedied the cause of the Unavailability of the relevant

Area, it shall immediately inform the Helpdesk and such time shall be logged as the

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Logged Rectification Time and the Helpdesk shall promptly notify the School

Representative of such rectification.

10.6 Cessation of Unavailability

10.6.1 Unavailability shall cease upon the Logged Rectification Time.

10.6.2 In the event of any dispute between the Parties as to whether Unavailability

in respect of an Area has ceased, the matter will be resolved in accordance

with Clause 64 (Dispute Resolution)

11.

11.1 The Authority (acting by itself or through the appointment of a nominated sub-

contractor) may, at its own expense, carry out such monitoring and/or audit of the

Services and the Contractor’s and/or the Contractor’s Representative monitoring

(including through the use of joint monitoring) and quality assurance procedures as it

may from time to time require.

11.2 The Authority may, in its absolute discretion, attend with the Contractor whilst the

Contractor is carrying out its own monitoring and jointly monitor any aspect of the

Services.

11.3 The Authority shall, on the Contractor’s reasonable request, on reasonable notice,

and at the Contractor’s cost, attend and jointly monitor any aspect of any of the

Services where the Contractor believes that so to do would enhance the delivery or

monitoring of such Services.

332


SCHEDULE PART 7

PAYMENT MECHANISM

SECTION A

PART 6: UTILITIES

1 Introduction

1.1 This Part 6 of Section A of Schedule Part 7 sets out the treatment of gas, electricity,

water and sewerage (“Utilities”) costs in respect of the Project Facilities.

2 Invoicing

2.1 The Authority shall be liable for all demands for payment in respect of Utilities’ costs

(including, for the avoidance of doubt, any standing charges in relation thereto) in

respect of the Project Facilities save only for Utilities' costs for the Works as provided

in Paragraph 8.2.

2.2 The Contractor shall check all Utilities invoices on behalf of the Authority and report

to the Authority on the accuracy of the invoices (and provide any relevant supporting

information) in relation to the usage of the relevant Utility within 5 Business Days of

receipt of such invoice.

3 Utility Contracts

3.1 The Contractor acknowledges and agrees that the Authority is entitled to enter into

contracts for the supply of the Utilities or any of them from time to time and on such

terms and conditions (including, but not limited to, for a duration and at a price) as

the Authority in its sole discretion shall think fit.

4 General

4.1 During the Services Period, both parties shall use all reasonable endeavours to

mitigate and minimise its use of Utilities at the New Project Facilities at all times but

this obligation shall not prevent:

4.1.1 the Authority and its employees carrying out the Authority’s obligations as an

educational authority or as an authority responsible for recreational and social

activities, as the case may be, in the normal course of its business; or

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5.1.3 the NPI factors for the Actual Consumption and the Adjusted Actual

Consumption derived by dividing each of the Actual Consumption and the

Adjusted Actual Consumption by TM²;

5.1.4 the results of the comparison exercises carried out pursuant to Paragraph

8.1.3 below;

5.1.5 the Unit Rates for each of gas, electricity, water and sewerage during the

relevant Contract Year; and

5.1.6 the total costs of each of gas, electricity, water and sewerage for all the New

Project Facilities for that Contract Year,

and the Contractor shall identify in the Annual Reconciliation Statement any amount

that is payable by the Authority to the Contractor or by the Contractor to the Authority

pursuant to Paragraph 8.1 below.

5.2 In the 20 Business Days following submission of the Annual Reconciliation

Statement, the Authority and the Contractor shall, acting in good faith, liaise as often

as is required so as to agree the Annual Reconciliation Statement.

5.3 If the Authority disputes in good faith any payment to be made in accordance with the

Annual Reconciliation Statement the undisputed amount shall be paid in accordance

with Paragraph 5.4 and the disputed element (or such part thereof as is agreed or

determined to be paid) shall be paid, together with interest thereon from the date on

which such payment had been due to the date of actual payment at the Prescribed

Rate, within 20 Days of the date on which the parties or the Adjudicator determines

under the Dispute Resolution Procedure that the same is payable.

5.4 Any payment due from the Contractor to the Authority or from the Authority to the

Contractor shall be included in the Monthly Invoice following the Annual

Reconciliation Statement being agreed or determined in accordance with Paragraphs

5.2 and/or 5.3.

6.

6.1 The parties acknowledge that, notwithstanding the provisions of Clause 55

(Qualifying Change in Law), the Authority is to take the price risk in the Unit Rate

(including without limitation any costs relating to climate change levy and fossil fuel

levy and any replacement thereof whether by way of fixed charge or unit price).

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6.2 NPI Factor means the factor to be set out in the appropriate cell of the following table

for each of gas, electricity, water and sewerage for all of the New Project Facilities (in

aggregate) pursuant to Paragraph 6.2.1 below.

NPI Range Gas Kwh/sq.m per annum

Electricity Kwh/sq.m per annum

Water (litres per pupil per annum)

Upper NPI Factor [] [] []

Agreed NPI Factor [] [] []

Lower NPI Factor [] [] []

The NPI Factors for sewerage are as at the Execution Date 95% of the values of the

NPI Factors for water. Such percentage is set by Scottish Water as part of its

charging structure and is subject to adjustment from time to time to reflect changes

made by Scottish Water.

6.2.1 During the period of twelve months commencing on the last Service

Availability Date to occur (the "Normalisation Period"), the consumption of

each of gas, electricity and water at each of the New Project Facilities will be

metered by the Contractor.

6.2.2 The Agreed NPI Factor shall be adjusted with effect from the first

anniversary of the end of the Normalisation Period.

6.2.3 The Agreed NPI for electricity shall be adjusted to reflect the actual

consumption of electricity for the External Works (including any floodlighting

of pitches forming part of the New Project Facility), during the period of 12

months from the last External Works Availability Date to occur.

6.2.4 The Agreed NPI Factors shall be inserted in the table above not later than

10 Business Days after the end of the Normalisation Period and where

paragraph 6.2.3 applies shall be updated not later than 10 Business Days

after the first anniversary of the last External Work Availability Date to occur.

6.2.5 The Upper NPI Factors will be the Agreed NPI Factors plus 10%, and the

Lower NPI Factors will be the Agreed NPI Factors minus 10%, such figures

to be inserted into the table above not later than 10 Business Days after the

end of the Normalisation Period, and where Paragraph 6.2.3 applies shall be

updated not later than 10 Business Days after the first anniversary of the last

External Works Availability Date to occur.

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6.3 TM2 means the total gross internal floor area in square metres for all of the New

Project Facilities (in aggregate) (excluding plant rooms) as follows:

New Project Facility TM2

Elgin Academy 14,618

Keith Primary 3410

6.4 Unit Rate means the unit rate for each of the Utilities (as appropriate) as the same

applies from time to time under the contracts for the supply of each of the Utilities

entered into by the Authority and if the Unit Rate changes during the period of 12

months commencing on each anniversary of the end of the Normalisation Period (the

“Utility Year”), the Unit Rate applicable from time to time during the Utility Year will

be pro rata to the volume of use of each Utility at each such Unit Rate during the

Utility Year to which it applied.

6.5 On the third anniversary of the last Service Availability Date to occur and every 3

years thereafter, (“NPI Review Date”) the Agreed NPI Factor for each New Project

Facility shall be reviewed jointly by the Authority and Contractor and adjusted to

reflect the Actual Consumption aggregated for the preceding 3 Contract Years,

divided by 3.

Such adjustment to the Agreed NPI Factors once agreed or determined will be

reflected in the Upper NPI Factors and Lower NPI Factors for gas, electricity and

water pro rata (the Upper NPI Factor being the Agreed NPI Factor plus 10% and the

Lower NPI Factor being minus 10% of the Agreed NPI Factor).

If within 20 Business Days after the NPI Review Date, the parties fail to agree

whether or not there should be an adjustment and/or the amount of such adjustment

then either party may refer the matter to an Adjudicator under the Dispute Resolution

Procedure.

7.

7.1 The Total Agreed Consumption for provision of Utilities to the New Project Facilities

shall be calculated as follows and shall be fixed throughout the Services Period

subject to any adjustment to the Total Agreed Consumption pursuant to Paragraphs

4.2 and/or 4.3.

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7.2 The Total Agreed Consumption of gas and electricity for the New Project Facilities

shall be calculated in accordance with the following formula subject to any

adjustments pursuant to Paragraphs 4.2 and/or 4.3:

Total Agreed Consumption = Agreed NPI Factor x TM2

7.3 The Total Upper Consumption of gas and electricity for the New Project Facilities

shall be calculated in accordance with the following formula:

Total Upper Consumption = Upper NPI Factor x TM2

7.4 The Total Lower Consumption of gas and electricity for the New Project Facilities


Total Lower Consumption = Lower NPI Factor x TM2

7.5 The Total Agreed Consumption for water and sewerage for the New Project Facilities


Total Agreed Consumption = Agreed NPI Factor x No of Pupils on School Roll

at the New Project Facilities as at the start of the relevant Utility Year x Total

School Days

7.6 The Total Upper Consumption for water and sewerage for the New Project Facilities


Total Upper Consumption = Upper NPI Factor x No of Pupils on School Roll at

the New Project Facilities as at the start of the relevant Utility Year x Total

School Days

7.7 The Total Lower Consumption for water and sewerage for the New Project Facilities


Total Lower Consumption = Lower NPI Factor x No of Pupils on School Roll at

the New Project Facilities as at the start of the relevant Utility Year x Total

School Days

7.8 The Total Upper Consumption for sewerage and the Total Lower Consumption for

sewerage are at the Execution Date 95% of the Total Upper Consumption for water

and the Total Lower Consumption for water respectively. Such percentage is subject

to adjustment in accordance with Paragraph 6.2.

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8.

8.1 Adjustments

8.1.1 On the first anniversary of the end of the Normalisation Period and each

anniversary thereafter the Contractor shall produce to the Authority by way

of meter readings and invoices a statement of the total number of kilowatt

hours consumed in all of the New Project Facilities (in aggregate) in such

period for each of gas and electricity and cubic metres for each of water and

sewerage during the preceding Utility Year (“Actual Consumption”)

8.1.2 The Actual Consumption shall be adjusted by taking into account of:

(a) additional/less Authority Equipment being used in the New Project

Facilities such that:

(i) the use of additional equipment will result in the Actual

Consumption being adjusted downwards to reflect the fact

that the consumption would have been less had the additional

equipment not been used; and

(ii) the use of less equipment will result in the Actual

Consumption being adjusted upwards to reflect the fact that

the consumption would have been greater had the equipment

been used;

(b) replacement Authority Equipment being more/less energy efficient

such that:

(i) the use of more energy efficient equipment will result in the

Actual Consumption being adjusted upwards to reflect the fact

that the consumption would have been greater had the more

energy efficient equipment not been used; and

(ii) the use of less energy efficient equipment will result in the

Actual Consumption being adjusted downwards to reflect the

fact that the consumption would have been less had the less

energy efficient equipment not been used;

(c) periods of Unavailability such that the Actual Consumption will be

adjusted upwards to reflect the fact that the consumption would have

been higher had there not been periods of Unavailability;

339


(d) use of a New Project Facility by the Authority during Additional

Hours; and

(e) Third Party Use such that the Actual Consumption will be adjusted

downwards to reflect the fact that the consumption would have been

lower had the Third Party Use not taken place.

After adjustment, agreed or determined, the Actual Consumption will become the

“Adjusted Actual Consumption”

8.1.3 For each Utility the Adjusted Actual Consumption will be compared against

the Total Agreed Consumption, Total Upper Consumption and Total Lower

Consumption figures, with variances in consumption shared as shown

below:

Consumption Bands Contractor Share Authority Share

To the extent that the Adjusted Actual Consumption is greater than Total Upper Consumption

100% 0%

To the extent that the Adjusted Actual Consumption is greater than Total Agreed Consumption but less than or equal to the Total Upper Consumption

50% 50%

To the extent that the Adjusted Actual Consumption is less than Total Agreed Consumption, but is greater than or equal to the Total Lower Consumption

50% 50%

To the extent that the Adjusted Actual Consumption is less than the Total Lower Consumption

100% 0%

For each Utility any reduced or additional consumption shall be multiplied by the

appropriate Unit Rate and the resultant amount shall be shared between the parties

in the proportions specified in the above table. The aggregate adjustment for all the

Utilities will result in either a payment to the Contractor from the Authority,

representing its share of the savings, or in a payment to the Authority from the

Contractor, representing the Contractor’s share of the additional consumption.

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8.2 Utilities required for the Works.

The Contractor shall be liable for all demands for payment in respect of Utilities’ cost:

8.2.1 in relation to each New Project Facility, prior to the Service Availability Date

for that New Project Facility;

8.2.2 in relation to External Works prior to the External Works Availability Date;

and

8.2.3 in relation to Grass Pitches prior to the Grass Pitch Availability Date.

8.3 Separate Payments Third Party Use

8.3.1 The Contractor will record separately the gas, electricity, water and

sewerage consumed as a result of Third Party Use at each New Project

Facility in each Payment Period (in aggregate, in respect of each Utility,

“Third Party Consumption”).

8.3.2 The Contractor shall prepare and send to the Authority with each Monthly

Invoice a statement setting out all Third Party Consumption in the relevant

Payment Period.

8.3.3 The Authority shall be entitled to deduct from the amount payable by it under

clause 33 (Payment) an amount equal to the sum of the costs of Third Party

Consumption for each Utility. The cost of Third Party Consumption for each

Utility shall be calculated by multiplying the Third Party Consumption for

each Utility in the relevant Payment Period by the relevant Unit Rate.

341


SCHEDULE PART 7

PAYMENT MECHANISM

SECTION A

PART 7: Not Used

342


SCHEDULE PART 7

PAYMENT MECHANISM

SECTION B: UNITARY CHARGE ADJUSTMENT

1. Definitions

In this Section B of Schedule Part 7 (Unitary Charge Adjustment):

Adjustment means an Assumption Adjustment, Input Adjustment and/or Logic

Adjustment;

Adjustment Date means the date agreed between the parties as the date that the

Adjustment should take effect pursuant to the provisions of this Agreement applicable

to the Relevant Event;

Assumption Adjustment means an adjustment to any of the assumptions contained

in the Financial Model;

Input Adjustment means any adjustment to the Financial Model other than

Assumption Adjustments and Logic Adjustments;

Key Ratios mean the following ratios:

1.1.1 the Historic Debt Service Cover Ratio (as defined in the Senior Funding

Agreements);

1.1.2 the Projected Debt Service Cover Ratio (as defined in the Senior Funding

Agreements);

1.1.3 the Loan Life Cover Ratio (as defined in the Senior Funding Agreements);

1.1.4 the Project IRR; and

1.1.5 the Junior Debt interest rate;

Logic Adjustment means an adjustment to the logic or formulae contained in the

Financial Model;

Post-Adjustment Financial Model means the Financial Model in effect immediately

following the making of the relevant Adjustments;

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Pre-Adjustment Financial Model means the Financial Model in effect immediately

prior to the making of the relevant Adjustments; and

Relevant Event means a Works Compensation Event, a Services Compensation

Event, a Qualifying Change in Law or an Authority Change as the case may be (but

not a Refinancing).

Section B means this Section B of Schedule Part 7 (Unitary Charge Adjustment);

2. Procedure

2.1 If a Relevant Event occurs, the Financial Model shall be adjusted in accordance with

this Section B, unless this Agreement provides otherwise or the parties agree

otherwise.

2.2 Subject to the provisions of this Section B, the Contractor shall be responsible for

making the Adjustments, in consultation with the Authority.

2.3 Following the making of the Adjustments, the Contractor shall deliver a copy of the

revised Financial Model to the Authority. The Authority shall review the Adjustments,

and either agree them or failing agreement, the matter may be referred to the Dispute

Resolution Procedure.

2.4 The Contractor shall prepare a copy (in electronic form) of the Financial Model

incorporating the Adjustments as agreed or determined, which copy shall be signed

by both parties, and kept by the Authority for safe-keeping. Such copy shall be the

Financial Model for the purposes of the Agreement until further adjusted in

accordance with this Agreement.

2.5 The Financial Model incorporating the Adjustments shall take effect from the

Adjustment Date, and any adjustment to the Unitary Charge shall also take effect

from the Adjustment Date.

3. Adjusting the Logic or Formulae

3.1 If it is necessary to make a Logic Adjustment to permit an Input Adjustment or

Assumption Adjustment to be made, the Contractor shall make such Logic

Adjustment only:

3.1.1 to the extent necessary;

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3.1.2 in accordance with generally accepted accounting principles in the United

Kingdom; and

3.1.3 so as to leave the Contractor in no better and no worse a position.

3.2 In order to demonstrate that the conditions in paragraph 3.1 are met, the Contractor

shall prepare a run of the Financial Model before making any Assumption Adjustment

or Input Adjustment, and immediately prior to making the Logic Adjustment, and a

run immediately following the Logic Adjustment, which shows that the Contractor is in

no worse and no better a position following the making of the Logic Adjustment.

4. Adjusting the Assumptions

4.1 Subject to paragraph 4.2, the Contractor may make an Assumption Adjustment so

that the Assumptions in the Financial Model reflect:

4.1.1 reasonable economic assumptions prevailing at the Adjustment Date; and

4.1.2 reasonably foreseeable changes in the prospective technical performance

of the Project arising as a result of the Relevant Event.

4.2 In making Assumption Adjustments, the Contractor may make such adjustments only

insofar as they relate to the Relevant Event, and such adjustments shall not have

effect in relation to any period prior to the Adjustment Date, nor in relation to any

aspect of the Project other than the Relevant Event in the period following the

Adjustment Date.

5. Adjusting the Inputs

The Contractor may make Input Adjustments to the extent required to reflect the

Estimated Change in Project Costs arising out of the Relevant Event.

6. Adjusting the Unitary Charge

6.1 In order to calculate the adjustment to be made to the Unitary Charge, the Contractor

shall run the Financial Model after making the Logic Adjustments, the Assumption

Adjustments and the Input Adjustments relating to the Relevant Event and permitted

by this Section B so that, following the Relevant Event, it is in no better and no worse

a position than it would have been if no Relevant Event had occurred.

345


6.2 The Unitary Charge shall be adjusted by such amount as leaves the Contractor,

following the Relevant Event, in no better and no worse a position than it would have

been if no Relevant Event had occurred.

7. No Better and No Worse

7.1 Any reference in this Agreement to "no better and no worse" or to leaving the

Contractor in "no better and no worse a position" shall be construed by reference to

the Contractor's:

7.1.1 rights, duties and liabilities under or arising pursuant to performance of this

Agreement, the Funding Agreements, the Building Contract and FM

Agreement; and

7.1.2 ability to perform its obligations and exercise its rights under this

Agreement, the Funding Agreements, the Building Contract and the FM

Agreement,

so as to ensure that:

7.1.3 the Contractor is left in a position in relation to the Key Ratios which is no

better and no worse in the Post-Adjustment Financial Model than it is in

the Pre-Adjustment Financial Model; and

7.1.4 following the making of the Adjustments, the ability of the Contractor to

comply with this Agreement is not adversely affected or improved as a

consequence of the Relevant Event.

8. Adjusting for Performance

8.1 The Contractor shall not make any adjustments to the Financial Model to reflect the

actual financial performance of the Contractor other than making adjustments to

those costs which are benchmarked or market tested pursuant to Clause 28

(Benchmarking and Market Testing), as permitted by Clause 28.7 (Benchmarking

and Market Testing).

8.2 Paragraph 8.1 is without prejudice to the provisions in this Agreement dealing with

the calculation of a Refinancing Gain, but any adjustments made in calculating the

Refinancing Gain shall not be made to the Financial Model for the purposes of this

Section B of Schedule Part 7.

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SCHEDULE PART 7

PAYMENT MECHANISM

SECTION C: SU TABLE

347


348


349


350


351


352


353


354


355


356


357


358


359


360


365


CONSTRUCTION DIRECT AGREEMENT

This agreement is among

(1) THE MORAY COUNCIL, a local authority constituted and incorporated under the

Local Government Etc. (Scotland) Act 1994 and having its principal offices at Council

Office, High Street, Elgin, Moray IV30 1BX acting in its capacity as both Education

Authority under the Education (Scotland) Act 1980 and as authority responsible for

recreational and social activities in terms of the Local Government and Planning

(Scotland) Act 1982 (“the Beneficiary” which expression shall include its successors

in title or permitted assignees under this Agreement and/or the Beneficiary’s

appointee)

(2) IPP (MORAY SCHOOLS) LIMITED, a company incorporated in England and Wales

under the Companies Acts (Registered Number 07163206 and having its Registered

Office at Two London Bridge, London, SE1 9RA (“the SPV” which term shall include

any successor including any parties taking over the obligations of the SPV under the

Project Agreement)

(3) STEWART MILNE GROUP LIMITED, a company incorporated in Scotland under the

Companies Acts (Registered Number SC057709 and having its Registered Office at

Peregrine House, Mosscroft Avenue, Westhill Business Park, Westhill, Aberdeen,

AB32 6TQ “the Contractor”)

WHEREAS

A The Beneficiary has entered or is about to enter into an agreement with the SPV

(“the Project Agreement”) in connection with the design, construction, fitting out,

testing and commissioning and thereafter the operation and maintenance of one

secondary school and one primary school (“the Project”) and for the provision of

certain services in relation thereto.

B The SPV has engaged or is to engage the Contractor under a design and build

contract (“the Building Contract”), which expression shall include all documents

incorporated therein and any agreed amendment thereto, to carry out design and

works more particularly described in the Building Contract (“the Contract Works”),

366


which expression shall include any additional works performed by the Contractor

under the Building Contract including in connection with any modifications or

variations made thereunder.

C It is a condition precedent of the Project Agreement that the Contractor, the SPV and

the Beneficiary enter into this Council Construction Direct Agreement (“this

Agreement”).

D The Beneficiary has relied and will continue to rely upon the Contractor’s reasonable

skill, care and diligence in respect of all matters covered by this Agreement in so far

as they relate to the performance by the Contractor of its obligations under the

Building Contract.

NOW IT IS AGREED:

1. The Contractor warrants and undertakes to the Beneficiary that it has complied and

will continue to comply with all the terms and obligations under or arising out of the

Building Contract on the Contractor’s part to be performed and observed and shall

complete the Contract Works in accordance with the Building Contract.

2. Without prejudice to Clause 1 of this Agreement, the Contractor further warrants and

undertakes to the Beneficiary that:

2.1 it has exercised and will continue to exercise all the reasonable skill, care and

diligence to be expected from a competent design and build contractor experienced

in carrying out works similar in nature, size and complexity to the Contract Works in:

2.1.1 the design of the Contract Works;

2.1.2 the selection of goods and materials for the Contract Works, and in

particular in ensuring that it has not and will not specify for use in relation to

the Contract Works any products or materials not in conformity with relevant

British or European standards or Codes of Practice or which are at the time

of specification generally known within the United Kingdom to an

experienced design and build contractor of such as the Contract Works to be

deleterious to health and safety or to the durability of buildings and/or other

structures and/or finishes and/or plant and machinery in the particular

circumstances in which they are used; and

2.1.3 the performance of its duties to the SPV under the Building Contract;

367


2.2 the Contract Works will on completion satisfy all performance specifications and other

requirements contained in the Building Contract;

2.3 the Contract Works and all materials and goods comprised therein will correspond as

to description, quality and condition with the requirements of the Building Contract;

2.4 the Contract Works will on completion comply with all Legislation, Guidance and

Good Industry Practice;

2.5 it will not terminate the appointment of, or determine the employment of (as the case

may be), any of its consultants, sub-consultants or sub-contractors without the prior

written approval of the Beneficiary;

2.6 it will not seek to modify or vary any of the obligations for which it is responsible

under the Building Contract in any respect if that modification or variation will be

detrimental to the Beneficiary or affect the Beneficiary’s rights and obligations under

the Project Agreement or effect the Contractor’s obligations under this Agreement;

Provided that the obligations of the Contractor under this Agreement shall be no

greater in extent or quantity than if the Beneficiary had been named as joint employer

with the SPV under the Building Contract and the Contractor shall be entitled in any

action or proceedings by the Beneficiary to rely on any limitation in the Building

Contract and to raise the equivalent rights in defence of liability as it would have

against the SPV under the Building Contract (other than counterclaim, set-off or to

state a defence of no loss or a different loss has been suffered by the SPV).

3. The Beneficiary has no authority to issue any direction or instruction to the Contractor

in relation to the Building Contract unless and until the Beneficiary has given notice

under Clauses 4 or 5, below. The Beneficiary or its appointee has no liability to the

Contractor in relation to amounts due under the Building Contract unless and until the

Beneficiary has given notice under Clauses 4 or 5.

4. The Contractor agrees that it will, if so required by notice in writing given by the

Beneficiary, subject to Clause 6 below, accept the instructions of the Beneficiary or

its appointee, as the case may be, (which for the avoidance of doubt and without

limitation may include a third party appointed by the Beneficiary to act as “the

Employer” under the Building Contract) to the exclusion of the SPV in respect of the

Project upon the terms and conditions of the Building Contract. The SPV

acknowledges that the Contractor shall be entitled to rely on a notice given to the

Contractor by the Beneficiary under this Clause 4 and further acknowledges that

such acceptance of the instructions of the Beneficiary or its appointee, as the case

368


may be, to the exclusion of the SPV shall not constitute any breach of the

Contractor’s obligations to the SPV under the Building Contract.

5. The Contractor further agrees that it will not without first giving the Beneficiary not

less than 35 days notice in writing exercise any right or purported right it may have to

determine its employment under the Building Contract, treat the same as having

been repudiated by the SPV, or discontinue the performance of any duties or

obligations thereunder. Further, the Contractor shall within 14 days of giving the said

notice, provide statements to the Beneficiary containing the following:

5.1 all amounts properly due and payable to the Contractor under the Building Contract

on or before the date of issue of the said notice which remain unpaid;

5.2 in the reasonable estimation of the Contractor, the amount of any monetary claim (if

any) asserted by the Contractor against the SPV under the Building Contract arising

out of or in connection with the breach for which the said notice was served; and

5.3 where the Contractor intends to terminate the Building Contract due to some default

or breach of contract of a non-financial nature:

5.3.1 the provision of the Building Contract alleged to have been breached or not

fulfilled;

5.3.2 supporting information in reasonable detail to enable the Beneficiary to

identify the material facts;

5.3.3 the steps reasonably required to remedy the specified breaches or

conditions not fulfilled;

5.3.4 the time within which the specified steps can reasonably be expected to be

taken;

5.3.5 (if applicable) the amount of damages claimed and the basis of their

calculation; and

5.3.6 (if applicable) the relief to be sought.

The Contractor warrants to the Beneficiary that the statements submitted under this

Clause 5 shall be true, complete and accurate statements of the amounts to which

the Contractor considers itself entitled. In the event that the Contractor shall delay in

giving such notice and information within the said 14 days, the period of 35 days shall

be extended to correspond with the period of any such delay. The Contractor’s right

369


to determine its employment under the Building Contract or to treat the same as

having been repudiated or to discontinue performance shall cease if, within the said

35 day period (extended as appropriate) and subject to Clause 6 the Beneficiary shall

give notice in writing to the Contractor requiring the Contractor to accept the

instructions of the Beneficiary or its appointee to the exclusion of the SPV in respect

of the Project upon the terms and conditions of the Building Contract.

6. It shall be a condition of any notice given by the Beneficiary under Clauses 4 or 5

above, that the Beneficiary or its Appointee, as the case may be, accepts liability for

payment of the sums due under the Building Contract and detailed in the statements

provided under Clause 5, and for subsequent performance of the SPV’s obligations.

Upon the issue of any notice by the Beneficiary under clauses 4 or 5, the Building

Contract shall remain in full force and effect as if no right of determination of its

employment under the Building Contract, or any right of the Contractor to treat the

Building Contract as having been repudiated by the SPV had arisen and the

Contractor shall be liable to the Beneficiary and/or its Appointee, as the case may be,

under the Building Contract in lieu of its liability to the SPV. If any notice given by

Beneficiary under Clauses 4 or 5 requires the Contractor to accept the instructions of

the Beneficiary’s Appointee, the Beneficiary shall be liable to the Contractor as

Guarantor for the payment of all sums from time to time due to the Contractor from

the Beneficiary’s Appointee.

7. For the avoidance of doubt, nothing in this Agreement shall prevent the Beneficiary

issuing a notice requiring the Contractor to accept the instructions of its Appointee

following the issue by the Beneficiary of a notice requiring the Contractor to accept

instructions direct from the Beneficiary.

8. The Beneficiary or its Appointee may at any time following the issue of any notice by

the Beneficiary under Clauses 4 or 5, serve a further notice that following the expiry

of 14 days from the giving of such notice the Beneficiary or its Appointee, as the case

may be, will have no liability (save in respect of the Beneficiary’s or its Appointee’s

antecedent breach) for any sums due or to become due to the Contractor in respect

of the period following expiry of the last mentioned 14 day period. The Beneficiary

may exercise any of its rights pursuant to Clauses 4, 5 or 7 on more than one

occasion.

9. If two or more valid notices claiming rights similar to those set out in this Agreement

are received by the Contractor, the deemed order of priority of such notices shall be

that issued by any of the Finance Parties (as defined in the facility agreement dated

on or about the date hereof between the Contractor, Holdco and Aviva Commercial

370


Finance Limited as Lender and the Security Trustee) before any issued by the

Beneficiary. Only the notice deemed to have first priority, unless previously withdrawn

or if the rights thereunder are not exercised, shall take immediate effect and any

notice by the Beneficiary shall be postponed and shall not bind the Contractor until

the notice from any of the Finance Parties is withdrawn or deemed to be withdrawn or

the right to claim rights similar to those set out herein is at an end.

10. The Contractor shall maintain throughout the construction of the Project and for a

period of 12 years after the last date of Practical Completion or its equivalent under

the Building Contract, Professional Indemnity Insurance in an amount of not less than

10 million pounds (£10,000,000) sterling for any one claim or series of claims arising

out of each and every event during any one period of insurance (which shall not be

more than 12 months) with insurer of good repute carrying on business in the

European Union provided always that such insurance is available at rates which are

commercially reasonable to design and build contractors generally in the market. In

determining whether or not insurance is available as aforesaid, the financial

characteristics and claims’ record of the Contractor shall be ignored. The Contractor

shall immediately inform the Beneficiary if such insurance ceases to be available at

rates which are commercially reasonable in order that the Contractor and the

beneficiary can consider alternative means of best protecting their respective

positions in respect of the Project in the absence of such insurance provided that the

Beneficiary shall be entitled to require the contractor to maintain such lesser amount

of Professional Indemnity Insurance as is available to the Contractor at rates which

are commercially reasonable. As and when it is reasonably requested to do so by the

Beneficiary the Contractor shall produce for inspection documentary evidence

satisfactory to the Beneficiary (acting reasonably) that its Professional Indemnity

Insurance is being maintained. The Contractor confirms that this Agreement has

been disclosed to and has been approved by the Contractor’s Professional Indemnity

Insurers or Underwriters. Should the Contractor be in breach of any of its obligations

under this Clause 10, the Beneficiary may itself insure against any risk with respect to

which the breach shall have occurred and may recover such sum or sums from the

Contractor as a debt.

11. The Contractor hereby grants to the Beneficiary or its Appointee and all those

authorised by the Beneficiary an irrevocable, non-exclusive and royalty-free licence

(which shall be capable of assignation) to use and reproduce all technical information

(whether or not stored in computer systems), drawings, models, bills of quantities,

specifications, schedules, details, plans, programmes, budgets, reports, calculations

or other documents, work or things whatsoever provided or to be provided by the

371


Contractor in connection with the Project (the “Documents”) for any purpose relating

to the Project including (but without limitation) the construction, completion,

maintenance, letting, sale, promotion, advertisement, reinstatement, repair and any

extension of the Project. Such licence shall carry the right to grant sub-licences and

shall subsist notwithstanding that the Building Contract is terminated or the

obligations and duties there under have been competed. For the avoidance of doubt,

the grant of such licence or sub-licences shall not impose any additional liability on

the Contractor. The Contractor shall not assign or agree to assign the copyright in

any of the documents without the prior written consent of the Beneficiary. The

Contractor shall on reasonable demand provide to the Beneficiary or its Appointee

and those authorised by the Beneficiary additional copies of any documents on

receipt of reasonable copying costs. The Contractor will not be liable for any use by

the Beneficiary of any of the documents for any purpose other than that for which the

same were prepared and provided by the Contractor or for any improper or negligent

use by the Beneficiary.

12. This Agreement may be assigned in whole or in part by the Beneficiary to any

successor to the Beneficiary’s interest in the Project or any part thereof without the

consent of the SPV or the Contractor being required and such assignation shall be

effective upon written notice thereof being given to the SPV and to the Contractor. No

assignation of this Agreement by any other party shall be permitted.

13. The Contractor undertakes that it will not raise as a defence to any action by the

Beneficiary for alleged breach of this agreement the fact that the obligations of the

SPV to the Beneficiary in respect of the design and construction of the Contract

Works have been released as a result of the termination of the Project Agreement.

14. No failure, approval, act or forbearance on the part of the Beneficiary in respect of

any right of the Beneficiary pursuant to this Agreement shall constitute any waiver of

any right of the Beneficiary under or arising out of this agreement nor relieve the

Contractor of any of its duties or obligations under or arising out of this Agreement.

15. Any notice, consent or demand to be given or made by any party under this

Agreement (hereinafter called a “Notice”) shall only be validly served if in writing and

delivered personally or sent by pre-paid first class recorded delivery post or sent by

fax to the following address and marked for the attention of the following person in

the case of each party:

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Party: Address: Fax Number: Person:

Beneficiary The Moray Council, High Street, Elgin, IV30 1BX

01343 563 335 PPP Contract Manager

SPV IPP (Moray Schools) Limited, Two London Bridge, London, SE1 9RA

0207 403 1161 Kevin Hawkins, Moray Schools Asset Manager

Contractor Stewart Milne, Group Limited, Peregrine House Mosscroft Avenue, Westhill, Business Park, Westhill, Aberdeen, AB32 6TQ

01224 747 299 Derek Anderson, Commercial Director

Any party may by Notice to the other party/parties change its address, fax number or

the title of the person for whose attention Notices are to be given or made pursuant to

this Clause. Any such Notice shall be deemed to have been received:

15.1 if delivered personally, at the time of delivery;

15.2 in the case of pre-paid first class recorded delivery post, on the first Business Day

after the date of posting; and

15.3 in the case of a fax, at the time of transmission.

If any Notice is delivered or faxed after 5 p.m. on a Business Day, or at any time

during a day which is not a Business Day, that Notice shall be deemed to have been

received at 9 a.m. on the next Business Day. For the purposes of this Clause,

“Business Day” means any day which is not a Saturday, a Sunday or a public holiday

in Scotland. In proving service it shall be sufficient to prove that the envelope

containing such Notice was properly addressed to the relevant party and either

delivered personally to that address or delivered into the custody of the postal

authorities as a pre-paid first class recorded delivery letter, or that such Notice was

transmitted by fax to the correct fax number of the relevant party (as demonstrated by

the transmission slip). For the avoidance of doubt, Notices shall not be validly served

if sent by e-mail.

16. The Beneficiary, the SPV and the Contractor acknowledge and agree that this

Agreement is intended to be a “certified contract” in terms of the Local Government

(Contracts) Act 1997. The SPV and the Contractor hereby give their consent to this

373


Agreement being a “certified contract” in terms of the last mentioned Act. The SPV

and the Contractor acknowledge that the Beneficiary has satisfied the “certification

requirements” as set out in Section 3 of the last mentioned Act.

17. The definitions of words and phrases used in this Agreement shall be those set out in

the Building Contract except where expressly defined in this Agreement.

18. This Agreement shall be governed by and construed in accordance with Scots Law

and the parties hereto submit to the exclusive jurisdiction of the Scottish Courts.

IN WITNESS WHEREOF these presents on this page and the preceding pages are

executed as follows:

SEALED with the Common Seal of The Moray Council and SUBSCRIBED for and on its

behalf at on the day of 2010:

………………………………………………… Authorised Signatory

………………………………………………… Full Name

SUBSCRIBED for and on behalf of the said IPP (Moray Schools) Limited at

on the day of 2010 by:

………………………………………………… Director/Authorised Signatory

………………………………………………… Full Name

………………………………………………… Director/Authorised Signatory/Witness

………………………………………………… Full Name

SUBSCRIBED for and on behalf of the said STEWART MILNE GROUP LIMITED at on

the day of 2010 by:

………………………………………………… Director/Authorised Signatory

………………………………………………… Full Name


………………………………………………… Full Name

374


1.

1.1 The provisions of this Schedule Part shall apply whenever any item, documents or

course of action is required to be reviewed, approved or otherwise processed in

accordance with the Review Procedure.

1.2 Each submission under the Review Procedure shall be accompanied by 2 copies of

the document to be reviewed (including, where applicable, any Reviewable Design

Data) or a statement of the proposed course of action (the entire contents of a

submission being referred to in this Schedule Part as a “Submitted Item”). In

relation to each Submitted Item, the following procedure shall apply:

1.2.1 as soon as possible and, if the Submitted Item comprises:

(a) an item of Reviewable Design Data;

(b) a revised Construction Programme or revised Key Dates; or

(c) a document or proposed course of action submitted in terms of

Clause 7.1 (Ancillary Documents),

within 15 Business Days of the date of receipt of a submission (or re-submission, as

the case may be) of the Submitted Item to the Authority’s Representative (or such

other period as the parties may agree), the Authority’s Representative shall return

one copy of the relevant Submitted Item to the Contractor endorsed “no comment” or

subject to and in accordance with Paragraph 3 “comments” as appropriate; and

1.2.2 if the Authority’s Representative fails to return a copy of any Submitted Item

(including any re-submitted Submitted Item) as listed in Paragraphs 1.2.1(a)

and 1.2.1(b) duly endorsed in accordance with Paragraph 1.2.1, within 15

Business Days (or within such other period as the parties may agree in

writing) of the date of its submission to the Authority’s Representative, then

the Authority’s Representative shall be deemed to have returned the

Submitted Item to the Contractor endorsed “no comment” (and, in the case

of the Reviewable Design Data, endorsed “Level A – no comment”).

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1.3 If the Authority’s Representative raises comments on any Submitted Item in

accordance with Paragraph 3 he shall state the ground upon which such comments

are based and the evidence or other information necessary to substantiate that

ground. To the extent that the Authority’s Representative comments on a Submitted

Item other than on the basis set out in this Schedule Part, or fails to comply with the

provisions of this Paragraph, the Contractor may, in its discretion, either:

1.3.1 request written clarification of the basis for such comments and, if

clarification is not received within 5 Business Days of such request by the

Contractor, at its discretion refer the matter for determination in accordance

with the Dispute Resolution Procedure or proceed in accordance with

Paragraph 1.3.2 below; or

1.3.2 at its own risk, and without prejudice to Clause 10 (The Works) or 15

(Design Development), proceed with further design or construction

disregarding such comments.

1.4 In the case of any Submitted Item of the type referred to in Paragraph 1.2.1(c), a

failure by the Authority’s Representative to endorse and return such Submitted Item

within the period specified in Paragraph 1.2.1 shall be deemed to constitute an

objection by the Authority’s Representative to such Submitted Item. If the parties fail

to agree the form and content of such Submitted Item, within 10 Business Days

following the expiry of the period specified in Paragraph 1.2.1, the matter shall be

determined in accordance with the Dispute Resolution Procedure.

2.

2.1 The Contractor shall submit any further or other information, data and documents that

the Authority’s Representative reasonably requires in order to determine whether he

has a basis for raising comments or making objections to any Submitted Item in

accordance with this Schedule Part. If the Contractor does not submit any

information, data and documents specifically requested by the Authority, the

Authority’s Representative shall be entitled to:

2.1.1 comment on the Submitted Item on the basis of the information, data and

documents which have been provided in accordance with Paragraph 3

below; or

2.1.2 object to the Submitted Item on the grounds that insufficient information,

data and documents have been provided to enable the Authority’s

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(e) the Contractor’s ability to perform its obligations under the

Agreement would be adversely affected by the document or

proposed course of action;

3.1.3 in addition to the matters listed in Paragraph 3.1.1 in relation to Reviewable

Design Data submitted pursuant to Clause 10 (The Works) or 15 (Design

Development):

(a) the Submitted Item is not in accordance with the Facilities

Requirements; or

(b) the Submitted Item is not in accordance with the Contractor’s

Proposals;

3.1.4 in addition to the matters listed in Paragraph 3.1.1 in relation to any

proposed variation to the Contractor’s Proposals relating to the Works:

(a) the Submitted Item would increase the likelihood of Deductions

following the relevant Service Availability Date; or

(b) would result in a decrease or worsening of the quality of any New

Project Facility following the relevant Service Availability Date from

that which would be provided if such proposed variation was not

implemented; or

(c) involves any changes to the location of, or the exterior of the relevant

New Project Facility, including its height or projection; or

(d) involves any change in the configuration of the floor plan or

anticipated net internal area of the relevant New Project Facility; or

(e) prejudices or is likely to prejudice the occupation of the relevant

Project Facility by the Authority or the provision of the Services in

accordance with this Agreement; or

(f) involves a departure from the Authority’s Requirements

3.1.5 in addition to the matters listed in Paragraph 3.1.1 in relation to the

submission of any revised Construction Programme or in relation to revised

Key Dates on the ground that the revised Construction Programme or

revised Key Dates:

378


(a) would not (on the balance of probabilities) enable all parts of the

Works for any New Project Facility to be completed by the relevant

Target Service Availability Date; or

(b) would increase the cost or disruption to the Authority of any

decanting from or within an Existing Project Facility; or

(c) would increase the disruption to the provision of Educational

Services by the Authority; or

(d) would render the Authority unable to carry out any Joint

Commissioning without material additional expense or disruption;


submission of any proposed revision or substitution for the Operational and

Maintenance Proposals on the grounds that:

(a) the proposed revision or substitution is not in accordance with Good

Industry Practice; or

(b) the performance of the relevant Service in accordance with the

proposed revision or substitution would (on the balance of

probabilities):

(i) be less likely to achieve compliance with relevant parts of the

Authority’s Requirements; or

(ii) have an adverse effect on the provision by the Authority of the

Educational Services or on the safety of any users of the New

Project Facilities; or

(iii) would cause the Authority to incur additional expense; or

(c) the proposed revision or substitution would (on the balance of

probabilities) result in an inferior standard of performance of the

relevant Service to the standard of performance in accordance with

the Operational and Maintenance Proposals prior to such proposed

revision or substitution;


submission of any Maintenance Programme, any revision to any

Maintenance Programme on the grounds that:

379


(a) carrying out the programmed maintenance in the period or at the

times suggested would (on the balance of probabilities) interfere with

the operations of the Authority or operation of the New Project

Facilities and such interference could be avoided or mitigated by the

Contractor rescheduling the programmed maintenance; or

(b) the period for carrying out the programmed maintenance would (on

the balance of probabilities) exceed the period reasonably required

for the relevant works; or

(c) the safety of pupils or staff or other users of the New Project

Facilities would be adversely affected; or

(d) if the maintenance works are scheduled to take place within a School

Day and (i) the requirements in Clause 24.4.2.1 are not fulfilled; or (ii)

the Academic Timetable for that New Project Facility differs from the

draft academic timetable, the Authority and the Contractor shall use

their reasonable endeavours to agree necessary amendments to the

draft Maintenance Programme); or

(e) the proposed maintenance works would not achieve compliance with

the relevant parts of Authority’s Requirements; or

(f) the planned periods of Community Use would be adversely affected

and such adverse effect could be avoided by the Contractor

rescheduling the programmed maintenance;

3.1.8 in addition to the matters listed in Paragraph 3.1.1 in relation to any proposal

for Third Party Use, on the grounds that:

(a) Third Party Use would not be compatible with the use of the New

Project Facilities as determined by the Authority acting reasonably; or

(b) Third Party Use would impair the ability of the Authority to provide

Educational Services; or

(c) Third Party Use would impair Community Use; or

(d) Third Party Use would be exercised by a person or body considered

by the Authority, acting reasonably, to be unsuitable to be a user of a

New Project Facility

380


4.

4.1 Any Submitted Item which is returned or deemed to have been returned by the

Authority’s Representative endorsed “no comment” (and in the case of Reviewable

Design Data, endorsed “Level A - no comment”) may be complied with or

implemented (as the case may be) by the Contractor.

4.2 In the case of any Submitted Item other than Reviewable Design Data, if the

Authority’s Representative returns the Submitted Item to the Contractor endorsed

“comments”, the Contractor shall comply with such Submitted Item after amendment

in accordance with the comments unless the Contractor disputes that any such

comment is on grounds permitted by this Agreement, in which case the Contractor or

the Authority’s Representative may refer the matter for determination in accordance

with Clause 64 (Dispute Resolution) and the Contractor shall not act on the

Submitted Item except entirely at its own risk until such matter is so determined or

otherwise agreed.

4.3 In the case of a Submitted Item comprising Reviewable Design Data, if the

Authority’s Representative returns the Submitted Item endorsed other than “Level A –

no comment”, the Contractor shall:

4.3.1 where the Authority’s Representative has endorsed the Submitted Item

“Level B – proceed subject to amendment as noted”, either proceed to

construct or proceed to the next level of design of the part of the Works to

which the Submitted Item relates but take into account any amendments

required by the Authority’s Representative in his comments;


“Level C –subject to amendment as noted”, not act upon the Submitted Item,

amend the Submitted Item in accordance with the Authority’s

Representative’s comments and re-submit the same to the Authority’s

Representative in accordance with Paragraph 4.4; and


“Level D –rejected”, not act upon the Submitted Item, amend the Submitted

Item and re-submit the Submitted Item to the Authority’s Representative in

accordance with Paragraph 4.4;

Unless the Contractor disputes that any such comment or proposed

amendment is on grounds permitted by this Agreement, in which case the

Contractor or the Authority’s Representative may refer the matter for

381


determination in accordance with the Dispute Resolution Procedure and the

Contractor shall not act on the Submitted Item except entirely at its own risk

until such matter is so determined or otherwise agreed.

4.4 Within 10 Business Days of receiving the comments of the Authority’s Representative

on any Submitted Item comprising Reviewable Design Data, the Contractor shall

(except in the case contemplated in Paragraph 4.3.1) send a copy of the Submitted

Item as amended to the Authority’s Representative pursuant to Paragraph 4.3 and

the provisions of Paragraphs 1.2.1 (Response to Submitted Item), 4.1 and 4.3 shall

apply (changed according to context) to such re-submission.

4.5 The return or deemed return of any Submitted Item endorsed “no comment” (or in the

case of Reviewable Design Data endorsed “Level A – no comment” or otherwise

endorsed in accordance with Paragraph 4.3.1 or 4.3.2 shall mean that the relevant

Submitted Item may be used or implemented for the purposes for which it is intended

but such return or deemed return of any Submitted Item shall not relieve the

Contractor of its obligations under this Agreement nor it is an acknowledgement by

the Authority’s Representative that the Contractor has complied with such

obligations, and in particular, the obligation to satisfy the Authority’s Requirements.

5.

5.1 The Contractor shall issue 2 copies of all Submitted Items to the Authority’s

Representative and compile and maintain a register of the date and contents of the

submission of all Submitted Items.

5.2 The Contractor shall compile and maintain a register of the date or receipt and

content of all Submitted Items that are returned or deemed to be returned by the

Authority’s Representative.

5.3 No review, comment or approval by the Authority shall operate to exclude or limit the

Contractor’s obligations or liabilities under the Agreement (or the Authority’s rights

under the Agreement).

6.

6.1 No approval or comment or any failure to give or make an approval or comment

under this Schedule Part shall constitute a variation save to the extent provided in

this Schedule Part 9.

382


6.2 If, having received comments from the Authority’s Representative, the Contractor

considers that compliance with those comments would amount to a variation, the

Contractor shall, before complying with the comments, notify the Authority of the

same and, if it is agreed by the parties or determined pursuant to the Dispute

Resolution Procedure that a variation would arise if the comments were complied

with, the Authority may, if it wishes, implement the variation and it shall be dealt with

in accordance with Clause 56 (Variations). Any failure by the Contractor to notify the

Authority within 10 Business Days of receipt by it of the Authority’s comments that it

considers compliance with any comments of the Authority’s Representative would

amount to a variation shall constitute an irrevocable acceptance by the Contractor

that any compliance with the Authority comments shall be without cost to the

Authority and/or without any extension of time.

6.3 No alteration or modification to the design, quality and quantity of the Works arising

from the development of detailed design or from the co-ordination of the design shall

be construed or regarded as a variation.

383


SCHEDULE PART 9

REVIEW PROCEDURE

APPENDIX A

REVIEWABLE DESIGN DATA

RDD-01-

001

External building envelope elements & Finishes colour palette.

RDD-01-

002.

Interior finishes colour palette

RDD-01-

003

FF&E and M&E coordinated room layouts for every individual space.

RDD-01-

004

Security installation general arrangement drawings and specifications including

Access Control Strategy proposals and Lock Suiting proposal

RDD-01-

005

Internal doors and ironmongery – products, specification and details.

RDD-01-

006

Fire fighting equipment and fire signage proposals.

RDD-01-

007

M&E services general arrangement layout drawings and specifications for M&E

services installations.

RDD-01-

008

Sanitaryware - products and specification.

RDD-01-

009

External hard and soft landscaping drawings and details.

RDD-01-

010

Signage proposals (external and internal)

384


CONTRACTOR’S SHARE

385


1. The Liaison Committee shall have a Secretary, who shall be appointed by the

Committee, or failing such appointment, who shall be appointed by the Authority.

2. The Committee shall regulate its own proceedings, save in respect of the following

matters:

2.1 the representatives of the Contractor at a meeting shall have, in aggregate, the same

number of votes as, in aggregate, the representatives of the Authority.

2.2 the Chairman shall not have a casting vote;

2.3 if the Chairman is not present within 15 minutes of the start of a meeting, the

members of the Committee appointed by the Authority shall nominate a chairman of

the meeting;

2.4 members of the Committee may appoint 1 alternate (and remove and replace that

alternate) to attend and vote on their behalf;

2.5 resolutions of the Committee must have the affirmative vote of representatives of

both Parties;

2.6 the Committee shall meet at least once every month up to the first anniversary of the

last Service Availability Date and thereafter at least once every three months;

2.7 notwithstanding the foregoing, the Committee shall meet as often as may be required

to fulfil its role under Clause 53.3;

2.8 any member of the Committee may require the Secretary to convene a meeting of

the Committee, which shall be held on not less than 2 weeks’ and not more than 3

weeks’ notice, save in the case of a matter requiring urgent consideration, when such

notice as shall be reasonable in the circumstances shall be given by the Secretary;

2.9 meetings of the Committee may be held by telephone provided all participants can

hear and speak to each other at the same time.

3. Minutes of all proceedings of the Committee shall be kept by the Secretary and shall

be circulated in draft to the Authority and to the Contractor as soon as practicable

after the relevant meeting and approved at the next following meeting.

386


387


The values in the following table represent the add on costs to be applied to the base hourly rates as identified in the Warranted Data.

These rates, along with the hourly rates as shown in the Warranted Data shall be applied to the Relevant Employees and the Assigned Employees.

389


Contractor Details

1. Name: IPP (Moray Schools) Limited

2. Country of Incorporation: England and Wales

3. Registered number: 07163206

4. Registered office: Two London Bridge, London, SE1 9RA

5. Shareholders: IPP (Moray Schools) Holdings Limited

6. Directors: Execution Date: Allan Cameron Cook; Michael Gregory

Effective Date: Allan Cameron Cook; Michael Gregory

7. Auditor: Deloitte LLP, 2 New Street Square, London EC4V 3BZ

Holding Company Details

1. Name: IPP (Moray Schools) Holdings Limited

2. Country of Incorporation: England and Wales

3. Registered number: 07163240

4. Registered office: Two London Bridge, London, SE1 9RA

5. Shareholders: IPP Bond Limited

6. Directors: Execution Date: Allan Cameron Cook; Michael Gregory

Effective Date: Allan Cameron Cook; Michael Gregory

7. Auditor: Deloitte LLP, 2 New Street Square, London EC4V 3BZ

390


This Schedule Part 15 comprises four Sections:-

Section 1: Policies to be taken out by the Contractor and maintained during the Works

Period

Section 2: Policies to be taken out by the Contractor and maintained during the Services

Period

Section 3: Endorsements

Section 4: Broker's Letter of Undertaking

392


1.2 Coverage

"All risks" of physical loss or damage to the insured property unless otherwise

excluded.

1.3 Sum Insured

At all times an amount not less than the full reinstatement or replacement value of the

insured property, but not less than the value specified in the Building Contract plus

provision to include principal extensions as appropriate.

1.4 Maximum Deductible

£10,000 each and every loss with the exception of DE5 losses which will be

£150,000.

1.5 Territorial Limits

United Kingdom including offsite storage and during inland transit.

1.6 Period of Insurance

From the Effective Date until the Service Availability Date and thereafter in respect of

defects liability until expiry of the 12 months defects liability period.

1.7 Principal Extensions

1) Terrorism

2) Munitions of war clause.

3) Additional costs of completion clause.

4) Professional fees clause.

5) Debris removal clause.

6) 72 hour clause.

7) European Union local authorities clause.

8) Free issue materials clause.

9) 15% escalation clause.

394


2. the economic additional expenditure necessarily and reasonably incurred for the

purpose of avoiding or reducing the anticipated loss of Revenue of the Contractor

which without such expenditure would have taken place, during the minimum

indemnity period.

2.3 Sum Insured

An amount sufficient to cover the sums the subject of the Indemnity for the minimum

indemnity period.

2.4 Maximum Excess

45 days.

2.5 Minimum Indemnity Period

Elgin Academy 24 months

Keith Primary School 21 Months


As per the Contractors' "All Risks" Insurance, excluding the defects liability period.


1) Denial of access.

2) Utilities.

3) Terrorism

4) Automatic Reinstatement of sum insured

5) Professional Fees

2.8 Principal Exclusions

1) The exclusions under the Contractors' 'All Risks' Insurance, other than for

consequential financial losses.

2) Delayed response by a public body or state authority.

395


3.

3.1 Interest

To indemnify the insured in respect of all sums that they may become legally liable to

pay (including claimant's costs and expenses) as damages in respect of accidental:

(a) death, or bodily injury, illness, death, disease contracted by any

person;

(b) loss or damage to property;

(c) interference to property or any easement right of air, light water or

way or the enjoyment or use thereof by obstruction, trespass,

nuisance, loss of amenities, or any like cause.

happening during the period of insurance and arising out of or in connection with the

Project.

3.2 Limit of Indemnity

Not less than £50m in respect of any one occurrence, the number of occurrences

being unlimited, but in the aggregate in respect of pollution and products liability.


£10,000 for each and every occurrence of property damage. (Personal injury claims

will be paid in full).


UK and elsewhere in the world in respect of non manual visits.

3.5 Jurisdiction

Worldwide excluding US, Canada and Australia


As per the Contractors' 'All Risks' Insurance, including the defects liability period.


1) Munitions of war.

396


2) Cross liability clause.

3) Contingent motor.

4) Legal defence costs.

5) Contractual liability


1. Liability for death, illness, disease of bodily injury sustained by employees of

the insured.

2. Liability arising out of the use of mechanically propelled vehicles whilst

required to be compulsorily insured by legislation in respect of such vehicles.

3. Liability in respect of predetermined penalties or liquidated damages imposed

under any contract entered into by the insured.

4. Liability in respect of loss or damage to property in the care, custody and

control of the insured but this exclusion is not to apply to all property

belonging to the Authority which is in the care, custody and control of another

Insured.

5. Liability arising out of technical or professional advice (given for a fee) other

than in respect of death or bodily injury to persons or damage to third party

property.

6. Liability arising from the ownership, possession or use of any aircraft or

marine vessel.

7. Liability arising from seepage and pollution unless caused by a sudden,

unintended and unexpected occurrence.

8. Losses indemnified under the CAR policy or DSU policy.

9. Toxic mould

10. Asbestos

397


SCHEDULE PART 15

INSURANCES

SECTION 2

Policies to be taken out by the Contractor and maintained during the Services Period.

Common to all policies in Section 2 (unless stated otherwise):

Insureds:-

1) Authority.

2) Contractor.

3) FM Contractor.

4) Sub-Contractors to insureds 2 and 3 of any tier.

5) Lenders.

each for their respective rights and interest in the Project.

1.

1.1 Insured Property

The project assets which are the property of the Contractor or for which the

Contractor may be responsible including but not limited to the new facilities.

1.2 Coverage

"All risks" of physical loss or damage to the insured property from any cause not

excluded.

1.3 Sum Insured

At all times an amount not less than the total reinstatement or replacement value of

the insured property plus provision to include other principal extensions as

appropriate.

398



£10,000 each and every claim (Indexed)


United Kingdom plus elsewhere whilst in inland transit.


From the Service Availability Date or as otherwise specified in the Agreement until

the Expiry Date and renewable on an annual basis unless agreed otherwise by the

Parties.


1) Terrorism

2) Automatic reinstatement of sum insured.

3) Capital additions clause.

4) 72 hour clause.

5) European Union local authorities clause.

6) Professional fees.

7) Debris removal.

8) Pollution and contamination to the insured property arising from an event

which itself is not otherwise excluded.

9) Repair/reinstatement basis of claims settlement with cash option for non-

reinstatement.


1) War and related perils (UK market agreed wording).

2) Nuclear/radioactive risks (UK market agreed wording).

3) Pressure waves caused by aircraft and other aerial devices travelling at sonic

or supersonic speeds.

400


2.4 Maximum Excess

£10,000 (indexed) each and every claim.

2.5 Minimum Indemnity Period

Elgin Academy 24 months

Keith Primary School 21 Months.


From the Service Availability Date until the Expiry Date and renewable on an annual

basis unless agreed otherwise.


1) Denial of access.

2) Terrorism

3) Utilities.

4) Accountants Clause

5) Automatic reinstatement of sum insured.


1) Exclusions under the property damage insurance, other than for

consequential financial losses.

2) Delayed response by a public body or state authority.

3.

3.1 Interest

To indemnify the insured in respect of all sums that they may become legally liable to

pay (including claimant's costs and expenses) as damages in respect of accidental:

1) death, or bodily injury, illness, death, disease contracted by any person;

2) loss or damage to property;

401


3) interference to property or any easement right of air, light, water or way or the

enjoyment or use thereof by obstruction, trespass, nuisance, loss of

amenities, or any like cause.

happening during the period of insurance and arising out of or in connection with the

Project and the provision of the Services.

3.2 Limit of Indemnity

Not less than £50m (Indexed provided such limit shall only be increased on each

renewal date by increments of £5,000,000 when the limit that is indexed becomes

equal to or exceeds the next £5,000,000) in respect of any one occurrence, the

number of occurrences being unlimited, but in the aggregate in respect of pollution

and products liability.


£10,000 (Indexed) for each and every occurrence of property damage, (Personal

injury claims will be paid in full).


UK and elsewhere in the world in respect of non manual visits.

3.5 Jurisdiction

Worldwide excluding US, Canada and Australia


From the Service Availability Date or as otherwise specified in the Agreement until

the Expiry Date and renewable on an annual basis unless agreed otherwise.


1) Munitions of war.

2) Cross liability clause.

3) Contingent motor.

4) Legal defence costs.

5) Legionella

402


6) Contractual liability


1) Liability for death, illness, disease or bodily injury sustained by employees of

the insured.

2) Liability arising out of the use of mechanically propelled vehicles whilst

required to be compulsorily insured by legislation in respect of such vehicles.

3) Liability in respect of predetermined penalties or liquidated damages imposed

under any contract entered into by the insured.

4) Liability in respect of loss or damage to property in the care, custody and

control of the insured but this exclusion is not to apply to all property

belonging to the Authority which is in the care, custody and control of another

insured party.

5) Liability arising out of technical or professional advice (given for a fee) other

than in respect of death or bodily injury to persons or damage to third party

property.

6) Liability arising from the ownership, possession or use of any aircraft or

marine vessel.

7) Liability arising from seepage and pollution unless caused by a sudden,

unintended and unexpected occurrence.

8) Losses under the property damage policy or business interruption policy.

9) Toxic mould

10) Asbestos

403


SCHEDULE PART 15

INSURANCES

SECTION 3

ENDORSEMENTS

Unless the context otherwise requires defined terms set out in the following endorsements

shall have the meaning set out in the Agreement.

Endorsement 1

Cancellation

This policy shall not be cancelled or terminated before the original expiry date is to take

effect except in respect of non-payment of premium.

The insurers shall by written notice advise the Authority:

(a) at least 30 Days before any such cancellation or termination is to take effect;

(b) at least 30 Days before any reduction in limits or coverage or any increase in

deductibles is to take effect; and

(c) of any act or omission or any event of which the insurer has knowledge and which

might invalidate or render unenforceable in whole or in part this policy.

Endorsement 2

Multiple Insured/Non-Vitiation Clause

Each of the parties comprising the insured shall for the purposes of this policy be considered

a separate co-insured entity, insured on a composite basis, with the words "the insured"

applying to each as if they were separately and individually insured provided that the total

liability of the insurers under each section of this policy to the insured collectively shall not

(unless the policy specifically permits otherwise) exceed the limit of indemnity or amount

stated to be insured under that section or policy. Accordingly, the liability of the insurers

under this policy to any one insured shall not be conditional upon the due observance and

fulfilment by any other insured party of the terms and conditions of this policy or of any duties

404


imposed upon that insured party relating thereto, and shall not be affected by any failure in

such observance or fulfilment by any such other insured party.

It is understood and agreed that any payment or payments by insurers to any one or more of

the insureds shall reduce, to the extent of that payment, insurers' liability to all such parties

arising from any one event giving rise to a claim under this policy and (if applicable) in the

aggregate.

Insurers shall be entitled to avoid liability to or (as may be appropriate) claim damages from

any insured party in circumstances of fraud misrepresentation non-disclosure or material

breach of warranty or condition of this policy (each referred to in this clause as "Vitiating

Act") committed by that insured party save where such misrepresentation non-disclosure or

breach of warranty or condition was committed innocently and in good faith.

For the avoidance of doubt it is however agreed that a Vitiating Act committed by one

insured party shall not prejudice the right to indemnity of any other insured who has an

insurable interest and who has not committed the Vitiating Act.

Insurers hereby agree to waive all rights of subrogation and/or recourse which they may

have or acquire against any insured party (together with their employees and agents) except

where the rights of subrogation or recourse are acquired in consequence of a Vitiating Act in

which circumstances insurers may enforce such rights against the insured responsible for

the Vitiating Act notwithstanding the continuing or former status of the vitiating party as an

insured.

Notwithstanding any other provision of this policy or any other document or any act and/or

omission by any insured party insurers agree that:

(1) no party other than the Authority has any authority to make any warranty, disclosure

or representation in connection with this policy on behalf of the Authority;

(2) where any warranty, disclosure or representation is required from the Authority in

connection with this policy insurers will contact the Authority in writing (in accordance

with Endorsement 3 to the Agreement) and set out expressly the warranty, disclosure

and/or representation required within a reasonable period of time from the Authority

(regarding itself); and

(3) save as set out in a request from insurers to the Authority in accordance with (2)

above, the Authority shall have no duty to disclose any fact or matter to insurers in

connection with this policy save to the extent that for the Authority not to disclose a

405


fact or matter would constitute fraudulent misrepresentation and/or fraudulent non-

disclosure.

Endorsement 3

Communications

All notices or other communications under or in connection with this policy shall be given to

each insured (and the Authority) in writing or by facsimile. Any such notice will be deemed

to be given as follows:

(a) if in writing, when delivered

(b) if by facsimile, when transmitted but only if, immediately after transmission, the

sender's facsimile machine records a successful transmission has occurred.

The address and facsimile number of the Authority for all notices under or in connection with

this policy are those notified from time to time by the Authority for this purpose to the

Contractor at the relevant time. The initial address and facsimile number of the Authority are

as follows:

1. The Authority:

Address: The Moray Council, High Street, Elgin, IV30 1BX

Facsimile No: 01343 563 335

Attention: The PPP Contract Manager

It is further agreed that a notice of claim given by the Authority or any other insured shall in

the absence of any manifest error be accepted by the insurer as a valid notification of a

claim on behalf of all insureds.

Endorsement 4

Loss Payee (applicable only to the Physical Damage Policies)

All proceeds of this policy shall be payable without deduction or set-off to the Joint Insurance

Account.

406


Endorsement 5

Primary Insurance

It is expressly understood and agreed that this policy provides primary cover for the insured

parties and that in the event of loss destruction damage or liability covered by this policy

which is covered either in whole or in part under any other policy or policies of insurance

effected by or on behalf of any of the insured parties the insurers will indemnify the insured

parties as if such other policy or policies of insurance were not in force and the insurers

waive their rights of recourse if any against the insurers of such other policy or policies of

insurance.

Endorsement 6

Ringfencing

The level of any indemnity available to an insured party under this policy in relation to any

claim(s) concerning the Project shall not be affected and/or reduced by any claim(s)

unrelated to the Project.

407


SCHEDULE PART 15

INSURANCES

SECTION 4

BROKER'S LETTER OF UNDERTAKING

To: The Authority

Dear Sirs

Agreement dated [ ] entered into between [ ] Limited (the

"Contractor") and [ ] (the "Authority") (the "Agreement")

1. We refer to the Agreement. Unless the context otherwise requires, terms defined in

the Agreement shall have the same meaning in this letter.

2. We act as insurance broker to the Contractor in respect of the Required Insurances

and in that capacity we confirm that the Required Insurances which are required to

be procured pursuant to Clause 61 (Insurance) and Schedule Part 15 (Insurances) of

the Agreement:

2.1 where appropriate name you and such other persons as are required to be named

pursuant to the Agreement for their respective interests;

2.2 are, in our reasonable opinion as insurance brokers, as at today's date, in full force

and effect in respect of all the matters specified in the Agreement; and that

2.3 all premiums due to date in respect of the Required Insurances are paid and the

Required Insurances are, to the best of our knowledge and belief, placed with

insurers which, as at the time of placement, are reputable and financially sound. We

do not, however, make any representations regarding the insurers' current or future

solvency or ability to pay claims; and that

2.4 the endorsements set out in Section 3 to Schedule Part 15 ( ) of the

Agreement are as at today's date in full force and effect in respect of the Required

Insurances.

408


3. We further confirm that the attached cover notes confirm this position.

4. Pursuant to instructions received from the Contractor and in consideration of your

approving our appointment (or continuing appointment) as brokers in connection with

the Required Insurances, we hereby undertake in respect of the interests of the

Authority in relation to the Required Insurances:

4.1 Notification Obligations

4.1.1 to notify you at least 30 (thirty) days prior to the expiry of any of the Required

Insurances if we have not received instructions from the Contractor to

negotiate renewal and in the event of our receiving instructions to renew, to

advise you promptly of the details thereof;

4.1.2 to notify you at least 30 (thirty) days prior to ceasing to act as brokers to the

Contractor unless, due to circumstances beyond our control, we are unable

to do so in which case we shall notify you as soon as practicable; and

4.1.3 to pay into the Joint Insurance Account without set off or deduction of any

kind for the any reason all payments received in relation to the Required

Insurances specified at Clause 61 (Insurance) of the Agreement.

4.2 Advisory Obligations

4.2.1 to notify you forthwith of any default in the payment of any premium for any

of the Required Insurances;

4.2.2 to notify you if any insurer cancels or gives notification of cancellation of any

of the Required Insurances, at least 30 (thirty) days before such cancellation

is to take effect or as soon as reasonably practicable in the event that

notification of cancellation takes place less than 30 (thirty) days before it is

to take effect;

4.2.3 to notify you of any act or omission, breach or default of which we have

knowledge which in our reasonable opinion may either invalidate or render

unenforceable in whole or in part of any of the Required Insurances or which

may otherwise materially impact on the extent of cover provided under the

Required Insurances; and

4.2.4 to advise the Contractor of its duties of disclosure to insurers and to

specifically advise upon:

409


(a) the facts, circumstances and beliefs that should generally be

disclosed to insurers; and

(b) the obligation not to misrepresent any facts, matters or beliefs to

insurers.

4.3 Disclosure Obligations

4.3.1 to disclose to insurers all information made available to us from any source

and any fact, change of circumstances or occurrence made known to us

from any source which in our reasonable opinion is material to the risk

insured against under the Required Insurances and which properly should

be disclosed to insurers as soon as practicable after we become aware of

such information, fact, change of circumstance or occurrence whether prior

to inception or renewal or otherwise; and

4.3.2 to treat as confidential all information so marked or otherwise stated to be

confidential and supplied to us by or on behalf of the Contractor or the

Authority and not to disclose such information, without the prior written

consent of the supplier, to any third party other than those persons who, in

our reasonable opinion have a need to have access to such information from

time to time, and for the purpose of disclosure to the insurers or their agents

in respect of the Required Insurances in discharge of our obligation set out

at clause 4.3.1 of this letter. Our obligations of confidentiality shall not

conflict with our duties owed to the Contractor and shall not apply to

disclosure required by an order of a court of competent jurisdiction, or

pursuant to any applicable law, governmental or regulatory authority having

the force of law or to information which is in the public domain.

4.4 Administrative Obligations

4.4.1 to hold all copies of documents relating to or evidencing the Required

Insurances, including but without prejudice to the generality of the foregoing,

insurance slips, contracts, policies, endorsements and all documents

evidencing renewal of the Required Insurances, payment of premiums and

presentation and receipt of claims;

4.4.2 to supply to the Authority and/or its insurance advisers (or the Authority's or

its insurance advisers' authorised representatives) promptly on written

request copies of the documents set out in clause 4.4.1 of this letter, and, to

410


the extent available, to make available to such persons promptly upon the

Authority's request the originals of such documents;

4.4.3 to administer the payment of premiums due pursuant to the Required

Insurances such that, in so far as we hold appropriate funds, all such

premiums shall be paid to insurers in accordance with the terms of the

Required Insurances;

4.4.4 to administer the payment of claims from insurers in respect of the

Insurances (the "Insurance Claims") including:

4.4.4.1 negotiating settlement of Insurance Claims presented in

respect of the Required Insurances;

4.4.4.2 collating and presenting all information required by insurers in

relation to Insurance Claims presented in respect of the

Required Insurances; and

4.4.4.3 insofar as it is relevant and practicable, liaising with an

reporting to the Authority throughout the settlement, payment

and administration of such Insurance Claims.

4.4.5 to advise the Authority promptly upon receipt of notice of any material

changes which we are instructed to make in the terms of the Required

Insurances and which, if effected, in our opinion as Insurance Brokers

would result in any material reduction in limits or coverage or in any

increase in deductibles, exclusions or exceptions;

4.4.6 to advise the Authority in advance of any change to the terms of, or any

lapse, non-renewal and/or cancellation of any policy maintained in

respect of the Required Insurances; and

4.4.7 to use our reasonable endeavours to have endorsed on each and every

policy evidencing the Required Insurances (when the same is issued)

endorsements substantially in the form set out in Section 3 to

Schedule Part 15 ( ) of the Agreement.

4.5 Insurance Cost Reporting Procedures

4.5.1 to prepare following request, at the expense of the Contractor, a Joint

Insurance Cost Report on behalf of the Contractor and the Authority in

accordance with the Insurance Review Procedure as set forth in Clause 61

411


(Insurance) of the Agreement. We shall ensure that the information in the

Joint Insurance Cost Report is fairly represented, based on the information

available to us.

5.

5.1 Our obligations at clause 4 of this letter to notify or inform you shall be discharged by

providing the requisite information in hard copy to:

The Moray Council

High Street

Elgin

IV30 1BX

For the attention of: The PPP Contract Manager

6. We shall supply further letters in this form on renewal of each of the Required

Insurances and shall supply copies of such letters to those parties identified to us by

the Authority for such purposes.

Yours faithfully

………………………………

For and on behalf of [Contractor's broker]

415


Keith Primary and Grammar School, School Road, Keith, Banffshire AB55 5GS

Prescriptive Progress of Title

1. Feu Charter by the Trustees of the Rt Hon Caroline, Countess Dowager of Seafield in

favour of Norman Hay Machattie and Spouse recorded GRS Banff 26 October 1939.

2. Disposition by James Murdoch and Mrs Isabella Lobban or Murdoch in favour of Banff

County Council recorded GRS Banff 19 December 1957.

3. Minute of Waiver by Eagle Star Insurance Co Ltd in favour of the County Council of the

County of Banff recorded GRS Banff 14 May 1962.

4. Notice of Title in favour of The Moray Council recorded GRS Banff 11 January 2005.

5. Disposition by Eagle Star Insurance Co Ltd in favour of the County Council of the

County of Banff recorded GRS Banff 8 May 1961.



favour of the County Council of the County of Banff recorded GRS Banff 26 October

1939.

8. Notice of Title in favour of The Moray Council recorded GRS Banff 3 August 2000.


10. Disposition by The Rt Hon Nina Caroline Ogilvie Grant, Countess of Seafield with

consent in favour of Eagle Star Insurance Limited recorded GRS Banff 20 March 1958.

11. Conveyance by Eagle Star Insurance Co Ltd in favour of the County Council of the

County of Banff recorded GRS Banff 25 October 1971.

12. Notice of Title in favour of the Grampian Regional Council recorded GRS Banff 14

November 1991.


416


Split-Off Writs

14. Disposition by the County Council of the County of Banff in favour of North of Scotland

Hydro Electric Board recorded GRS Banff 13 June 1963 re sub-station site shown

coloured orange on the plan.

15. Statutory Conveyance by the North of Scotland Hydro Electric Board in favour of the

Grampian Regional Council recorded GRS Banff 10 August 1984 relative to above

sub-station.

16. Feu Disposition by The Moray Council in favour of John Boardman and Mrs Jennifer

Boardman recorded GRS Banff 3 August 2000 relative to the school cottage shown

coloured brown on the plan attached thereto.

Miscellaneous Deed

17. Search for Incumbrances dated 10 October 1939 to 20 December 1957.

18. Minute of Waiver by John Edward Rhind and Mrs Sheila Eileen Rhind in favour of The

Moray Council recorded GRS Banff 3 August 2000.

19. Feuduty Redemption Receipt dated 20 May 1981.

20. Registered Agreement between the North of Scotland Hydro Electric Board and the

Grampian Regional Council dated 24 April 1973.

21. Duplicate Agreement between the North of Scotland Hydro Electric Board and the

Banff County Council dated 24 July 1972.

Burden Writs


favour of Norman Hay Machattie and Spouse as aforesaid.

23. Disposition by Eagle Star Insurance Co Ltd in favour of the County Council of the

County of Banff as aforesaid.


favour of the County Council of the County of Banff as aforesaid.

417


Descriptive Writs

25. Disposition by the Rt Hon Nina Caroline Ogilvie Grant, Countess of Seafield with

consent therein-mentioned in favour of Eagle Star Insurance Company Limited as

aforesaid.

Split-Off Burdens


favour of the County Council of the County of Banff as aforesaid.

27. Feu Disposition by The Moray Council in favour of John Boardman and Mrs Jennifer

Boardman as aforesaid.

28. Minute of Waiver by John Edward Rhind and Mrs Sheila Eileen Rhind in favour of The

Moray Council as aforesaid.

29. The property questionnaire completed by the Authority and addressed to McClure

Naismith LLP, solicitors for the Contractor, dated on or around the date of this

Agreement in respect of the Site for the Works and Services in connection with the

Keith Primary School.

30. The Keith Primary School – Extent of Public Road Plan showing the extent of adopted

roads around Keith Primary School.

418


1. Feu Charter by The Right Honourable Caroline Countess Dowager of Seafield in

favour of The School Board of Keith recorded GRS Banff 27 December 1892.

2. Disposition by The Kirk Session of Keith in favour of The Keith School Board

recorded GRS Banff 24 June 1876.

3. Feu Charter by the Trustees of The Right Honourable Caroline Countess Dowager of

Seafield in favour of The County Council of the County of Banff recorded GRS Banff

30 June 1947.

4. Notice of Title in favour of The Moray Council, the terms of which have been agreed

with the Contractor, to be recorded by The Moray Council.

5. Disposition by John Edward Rhind and Mrs Sheila Eileen Rhind in favour of The

Moray Council recorded GRS Banff 20 December 1996.

420


2. disputes arising;

3. a claim under any of the insurances; and

4. extensions of time granted

422


APPOINTMENT

6. Where the Parties have agreed upon the identity of an Adjudicator who confirms his

readiness and willingness to embark upon the adjudication within 7 days of the

Adjudication Notice, then that person shall be the Adjudicator.

7. Where the parties have not so agreed upon an Adjudicator, or where such person

has not so confirmed his willingness to act, then the party who is seeking the

appointment of the Adjudicator and the referral of the Dispute to Adjudication may

apply to the Chairman, Vice-Chairman, President or Vice-President of either the

Royal Incorporation of Architects in Scotland or the Scottish Building Employers

Federation or the Royal Institution of Chartered Surveyors in Scotland or the National

Specialist Contractors Council or the Law Society of Scotland or the Institute of

Chartered Accountants of Scotland or the Institute of Chartered Accountants of

England and Wales (“Nominator”) for a nomination and the selection of the

Nominator shall be made by the said party at a time not earlier than when any

Dispute arises. The following procedure shall apply:

7.1 The application shall be in writing, accompanied by a copy of this Agreement or other

evidence of the agreement of the parties that the Rules should apply and a copy of

the Adjudication Notice; and

7.2 The Nominator shall endeavour to nominate an Adjudicator within 3 days of an

application for nomination; and

7.3 the parties agree to appoint the person nominated within six (6) days from the date of

the Adjudication Notice.

8. The Nominator may replace an Adjudicator with another nominated person as

Adjudicator if and when it appears necessary to him to do so but only after giving

written notice to the parties of his intention to make such replacement. The

Nominator shall consider whether to exercise such power if either party shall

represent to him that the Adjudicator is not acting impartially, or that the Adjudicator

is physically or mentally incapable of conducting the Adjudication, or that the

Adjudicator is failing with necessary despatch to proceed with the Adjudication or

make his decision. In the event that an Adjudicator is replaced by a Nominator in

accordance with this Rule 8, the parties agree that any directions and decisions

made by the Adjudicator shall remain in effect unless reviewed and replaced by the

new Adjudicator, and all timescales shall be re-calculated from the date of the

replacement.

423


9. Where an Adjudicator has already been appointed in relation to another dispute

arising out of this Agreement, the nominator may appoint either the same or a

different person as Adjudicator.

AGREEMENT

10. An Agreement to adjudicate in accordance with the Rules shall be treated as an offer

made by each of the parties to the Nominator and to any Adjudicator to abide by the

Rules, which offer may be accepted by conduct by appointing an Adjudicator or

embarking upon the Adjudication respectively. Without prejudice to the generality of

the foregoing, it shall be a condition of any appointment of an Adjudicator that, where

so required, the Adjudicator will act as adjudicator in a Related Dispute (as defined in

Rule 34) and shall in determining such adjudication insofar as practicable, relevant

and appropriate, come to the same conclusions as to the common facts and in so far

as practicable, relevant and appropriate apply the same reasoning and analysis in

reaching a decision on the Dispute as the adjudicator’s conclusions, reasoning and

analysis in the Related Dispute.

SCOPE OF THE ADJUDICATION

11. The scope of the Adjudication shall be the matters identified in the Adjudication

Notice, together with:

11.1 any further matters which both parties agree in writing should be within the scope of

the Adjudication; and

11.2 any further matters which the Adjudicator determines must be included in order that

the Adjudication may be effective and/or meaningful.

12. The Adjudicator may rule upon his own substantive jurisdiction, and as to the scope

of the Adjudication.

13. The underlying purpose of the Adjudication is to resolve disputes between the parties

that are within the scope of the Adjudication as rapidly and economically as is

reasonably possible.

424


14. Subject to Paragraph 49, decisions of the Adjudicator shall be binding until the

Dispute is finally determined by legal proceedings, or by agreement between the

parties.

15. The decision of the Adjudicator shall reflect the legal entitlements and obligations of

the parties.

16. The Adjudicator shall have the like power to open up and review any Certificates, or

other things issued or made pursuant to this Agreement as would a Court or Arbiter

given such powers and the power to award damages.

17. The Adjudicator shall act fairly and impartially, but shall not be obliged or empowered

to act as though he were an arbiter.

CONDUCT OF THE ADJUDICATION

18. The Adjudicator shall establish the procedure and timetable for the Adjudication.

19. Without prejudice to the generality of Rule 18, the Adjudicator may if he thinks fit:

19.1 require the delivery of written statements relating to matters in issue in the Dispute;

19.2 require either party to produce a bundle of key documents, whether helpful or

otherwise to that party’s case, and to draw such inference as may seem proper from

such bundle that may become apparent;

19.3 require the delivery to him and/or the other party of copies of any documents other

than documents that would be privileged from production to a court;

19.4 limit the length of any written or oral submission;

19.5 require the attendance before him for questioning of either party or employee or

agent of either party; provided that before any attendance with either party, employee

or agent the Adjudicator shall notify the other party and give the other party

reasonable notice of such attendance and an opportunity to attend at the same time;

19.6 make site visits;

19.7 make use of his own specialist knowledge;

19.8 obtain advice from specialist consultants, provided that at least one of the parties so

requests or consents;

425


19.9 not used;

19.10 review and revise any of his own previous directions; and

19.11 conduct the Adjudication in an inquisitorial manner, and take the initiative in

ascertaining the facts and the law.

20. The Adjudicator may reach his decision with or without the holding of an oral hearing.

21. The Adjudicator shall exercise such powers fairly and impartially, giving each party a

reasonable opportunity, in light of the timetable, of putting his case and dealing with

that of his opponent.

22. The Adjudicator may not:

22.1 require any advance payment of or security for his fees;

22.2 receive any written submissions from one party that are not also made available to

the other

22.3 refuse any party the right at any hearing or meeting to be represented by a

representative of that party’s choosing who is present;

act or continue to act in the face of a conflict of interest;

22.4 require any party to pay or make contribution to the legal costs of the other party

arising in the Adjudication.

23. The Adjudicator shall reach a decision within 28 days of referral or such longer period

as is agreed by the parties after the Dispute has been referred to him. The

Adjudicator shall be entitled to extend the said period of 28 days by up to 14 days

with the consent of the party by whom the Dispute was referred. As soon as possible

after he has reached a decision, the Adjudicator shall deliver a copy of the decision to

each of the parties. Upon becoming aware that the Dispute is the same or arises out

of substantially the same facts as a dispute which has previously been referred to

Adjudication under this Agreement, and a decision has been issued in that

Adjudication, the Adjudicator shall immediately resign.

ADJUDICATOR’S FEES AND EXPENSES

24. The parties shall be jointly responsible for the Adjudicator’s fees and expenses

including those of any specialist consultant (excluding legal) appointed under the

Rules (“Costs of Adjudication”), and the Adjudicator shall have the discretion to

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make directions regarding the apportionment of the Costs of Adjudication. If no such

directions are made, the parties shall bear the Costs of Adjudication in equal shares.

25. The Adjudicator’s fees shall not exceed the rate of £1,000 Indexed per day, plus

expenses and VAT.

DECISIONS

26. The Adjudicator may in any decision direct the payment of such compound or simple

interest as may be commercially reasonable.

27. All decisions shall be in writing. If requested by either party, not later than 7 days

from the date of delivery his decision to both parties, the Adjudicator shall provide

reasons for that decision.

ENFORCEMENT

28. Every decision of the Adjudicator shall be implemented without delay. The parties

shall be entitled to such relief and remedies as are set out in the decision, and shall

be entitled to enforcement thereof including to take further proceedings, regardless of

whether such decision is or is to be the subject of any challenge or review. Where

either party or the Adjudicator wishes to register the decision for execution in the

Books of Council and Session, the other party shall, on being requested to do so,

forthwith consent to such registration by subscribing the decision before a witness

which failing within 7 days of such request, the same may be subscribed on behalf of

the defaulting party by the Deputy Principal Clerk of the Court of Session.

IMMUNITY, CONFIDENTIALITY AND NON-COMPELLABILITY

29. Neither the Nominator, nor the Adjudicator nor any employee or agent of any of them

shall be liable for anything done or not done in the discharge or purported discharge

of their functions, whether in negligence or otherwise, unless the act or omission is in

bad faith.

30. The Adjudication and all matters arising in the course thereof are and will be kept

confidential by the parties except insofar as necessary to implement or enforce any

decision of the Adjudicator or as may be required for the purpose of any subsequent

proceedings save insofar as required by law.

31. In the event that either party seeks to challenge or review any decision of the

Adjudicator in any subsequent legal proceedings, the Adjudicator shall not be joined

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as a party to, nor shall be cited or otherwise required to give evidence or provide his

notes in such legal proceedings except where required by law.

32. Neither party shall, save in case of bad faith on the part of the Adjudicator, make any

application to the courts whatsoever in relation to the conduct of the Adjudication or

the decision of the Adjudicator until such time as the Adjudicator has made his

decision, or refused to make a decision.

33. All information, data or documentation disclosed or delivered by a party to the

Adjudicator in consequence of or in connection with his appointment hereunder shall

be treated as confidential by the Adjudicator and each party to the Adjudication (save

as otherwise agreed between the parties) and shall be returned to the owner on

completion of the Adjudication proceedings.

CONSOLIDATION OF DISPUTES

34. In the event of a Dispute arising under, out of or in connection with this Agreement

which in the opinion of the Contractor relates to a dispute or potential dispute or

difference (“Related Dispute”) arising under, out of, or in connection with any other

Agreement between the Contractor and a third party (all such Agreements being

referred to as the “Related Agreements”) and where the Related Dispute has been or

may be referred to an adjudicator for determination under an adjudication procedure

(“Related Procedure”) which meets the requirements set out in Section 108 of the

Housing Grants, Construction and Regeneration Act 1996 and is in all material

respects equivalent to the adjudication procedure in this Schedule Part 18, then the

Contractor may by written notice copied to the Authority and to the other party as

soon as the Related Dispute, request the Adjudicator to consolidate the Related

Dispute with the Dispute with a view to allowing all questions arising out of the

Dispute and the Related Dispute to be disposed of in the Adjudication.

34A If the Contractor requests the Adjudicator to consolidate the Dispute and the Related

Dispute under Rule 34 then the Contractor shall (or may procure that the other party

to the Related Dispute shall) as soon as practicable, and in any case within fourteen

(14) days of the referral of the Dispute to the Adjudicator, give to the Adjudicator

conducting the adjudication under this Agreement and also to the other parties to the

Dispute and the Related Dispute the particulars set out in Paragraph 35 below.

35. The particulars referred to in Paragraph 34 above are:

35.1 a copy of the Related Agreement;

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35.2 a preliminary statement from the Contractor and/or, as the case may be, the other

party to the Related Dispute setting out:

35.2.1 the basis and grounds for consolidation of the Related Dispute and the

Dispute;

35.2.2 the cases of the parties to the Related Dispute;

35.2.3 any relief sought by the parties to the Related Dispute; and

35.2.4 a list of any documents served in relation to the Related Dispute.

Any such particulars sent by the Contractor to the Adjudicator and the other parties to

the Dispute shall be sent at the same time to the other party to the Related Dispute.

36. On receiving the particulars set out in Paragraph 35 above prior to the relevant

Service Availability Date and within fourteen (14) days of the referral of the Dispute to

the Adjudicator, the Adjudicator may, at the request of the Contractor, immediately

order consolidation of the Dispute and the Related Dispute and shall have the

Authority and the power referred to in Paragraph 43 below.

37. On receiving the particulars set out in Paragraph 35 above on or after the relevant

Service Availability Date and within fourteen (14) days of the referral of the Dispute to

the Adjudicator, the Adjudicator shall immediately request that the parties to the

Dispute and the other party to the Related Dispute attend a meeting with the

Adjudicator with a view to determining whether or not the Dispute and the Related

Dispute should be consolidated. If the Adjudicator and all the relevant parties agree,

they may hold a telephone conference call instead of a meeting, and in such an event

references in Paragraphs 38 to 41 to a meeting or to attending a meeting shall mean

a telephone conference call and taking part in such a telephone conference call.

38. The Contractor shall use its reasonable endeavours to procure that an Authorised

Representative of the other party to the Related Dispute shall attend the meeting with

the Adjudicator referred to in Paragraph 37 above. The Contractor and the Authority

each agree to send an authorised representative or nominee to any meeting of this

kind under this Agreement or under a related agreement, which they may be

requested to attend the parties hereby agree that the Authority shall be entitled to

attend any meeting of the kind referred to in Paragraph 37 above, in relation to a

related agreement as the Contractor’s nominee.

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39. At the meeting referred to in Paragraph 37 above, the Authority’s Representative

shall, as a preliminary matter, either:

39.1 confirm to the Adjudicator that the Authority accepts the proposed consolidation of

the Related Dispute with the Dispute; or

39.2 inform the Adjudicator that the Authority does not accept the proposed consolidation

of the Related Dispute with the Dispute.

40. Where Paragraph 39.1 above applies, the Adjudicator shall immediately order

consolidation of the Dispute and the Related Dispute and shall have the Authority

and the power referred to in Paragraph 43 below.

41. Where Paragraph 39.2 above applies, the Adjudicator shall issue within one (1) day

of the meeting referred to in Paragraph 37 above his written decision, which shall not

include any reasons, as to whether or not there is demonstrably no basis or ground

for consolidation of the Dispute and the Related Dispute. if the Adjudicator

determines that there is demonstrably no basis or ground for consolidation of the

Dispute and the Related Dispute, the Dispute and the Related Dispute shall not be

consolidated. if the adjudicator determines otherwise, or if the Adjudicator has failed

or is unable to reach a decision within one (1) day of the meeting referred to in

Paragraph 37 above, the Adjudicator shall immediately order consolidation of the

Dispute and the Related Dispute and shall have the Authority and the power referred

to in Paragraph 43 below.

42. Notwithstanding anything to the contrary, a Related Dispute may only be

consolidated with a Dispute under this Agreement if the Adjudicator receives the

particulars set out in Paragraph 37 above within fourteen (14) days of the referral of

the Dispute under this Agreement to the Adjudicator.

43. The Adjudicator shall have the Authority and the power to consolidate the Dispute

and the Related Dispute and to direct that all procedural and/or evidential matters

arising in both the Dispute and the Related Dispute are consolidated in whatever

manner the Adjudicator considers shall lead to the fair and expeditious resolution of

both the Dispute and the Related Dispute and the parties (including the party to the

Related Dispute) shall thereafter abide by and implement such consolidation and any

such direction.

44. In the event that the Related Dispute is consolidated with the Dispute, the Adjudicator

shall reach a decision on the Dispute and the Related Dispute at the same time and

in any event within twenty eight (28) days of the earlier of the referral of the Dispute

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or the referral of the Related Dispute, or such longer period as is agreed by the

parties to the Dispute and the Related Dispute after the date that the Related Dispute

has been consolidated with the Dispute. The Adjudicator shall be entitled to extend

the said period of twenty eight (28) days by up to fourteen (14) days with the consent

of the party by whom the Dispute and the Related Dispute were referred.

45. Without fettering or restricting the Adjudicator’s power and Authority in any way, it is

the intention of the Contractor and the Authority that in the event that the related

dispute is consolidated with the Dispute, the Adjudicator shall, insofar as is relevant,

practicable and appropriate, come to the same conclusion as to the facts and apply

the same reasoning and analysis in reaching a decision on both the Dispute and the

Related Dispute.

46. In the event that an adjudicator under a Related Agreement (“Related Adjudicator”)

orders that a Dispute under this Agreement be consolidated with a Related Dispute

with which he is dealing under the Related Agreement, then:

46.1 Notwithstanding anything in the Rules with effect from the time of such order, the

Adjudicator shall cease to have authority or jurisdiction to determine the Dispute

which shall instead be determined by the Related Adjudicator and the appointment of

the Adjudicator under this Agreement shall cease; and

46.2 Such order shall be binding on the Contractor and the Authority and both of them

shall acknowledge the appointment of the Related Adjudicator as the adjudicator of

the Dispute, with the Contractor using its best endeavours to procure that the third

party who is a party to the Related Agreement shall with effect from the time of such

order comply with the requirements of the Related Agreement (including if applicable

any requirement or direction of the Related Adjudicator appointed under such

Related Agreement) as to the future conduct of the determination of the Dispute and

the Related Dispute; and

46.3 Notwithstanding Rule 24, the Contractor and the Authority shall be jointly responsible

with the third party who is a party to the Related Agreement for the Related

Adjudicator’s fees and expenses including those of any specialist consultant

appointed under the adjudication procedure in the Related Agreement, in respect of

the period in which the Dispute is consolidated with the Related Dispute pursuant to

an order of the Related Adjudicator (“Consolidated Adjudication Costs”). The

Contractor and the Authority agree that the Related Adjudicator shall have the

discretion to make directions to require the Contractor, the Authority and the third

party who is a party to the Related Agreement to pay or make contribution to the

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Consolidated Adjudication Costs in different proportions. If no such directions are

made, the Contractor, the Authority and the third party who is a party to the Related

Agreement shall bear the Consolidated Adjudication Costs in equal shares, and if the

Contractor, the Authority or the third party has paid more than such equal share, that

party or third party shall be entitled to a contribution from the other party, parties or

third party, as the case may be; and

46.4 Notwithstanding anything to the contrary a Dispute under this Agreement shall only

be consolidated with a Related Dispute, if the Related Adjudicator receives

particulars of the Dispute within fourteen (14) days of the referral of the Related

Dispute to the Related Adjudicator under the Related Agreement.

47. Notwithstanding anything to the contrary in the Rules and Paragraphs 34 to 45

above, the Contractor shall pay the Authority’s reasonable costs arising from the

consolidation of the Dispute and the Related Dispute in circumstances where the

Contractor has requested the Adjudicator to order consolidation of the Dispute and

the Related Dispute and it is subsequently determined by the Adjudicator that there

was no basis or ground for the Contractor to request the Adjudicator to order

consolidation of the Related Dispute and the Dispute.

48. If, in respect of any Dispute to which Paragraphs 34 to 46 of this Schedule Part 18

applies, any provision thereof is held to be or is rendered void or ineffective or will

otherwise be unenforceable, then the Contractor and the Authority agree that the

terms of Paragraphs 48.1 to 48.2 shall apply.

48.1 If any dispute arising under this Agreement raises issues which relate to:

48.1.1 Any dispute between the Contractor and the Building Contractor arising

under the Building Contract or otherwise affects the relationship or rights of

the Contractor and/or the Building Contractor under the Building Contract

(the “Building Contract Dispute”); or

48.1.2 Any dispute between the Contractor and the FM Contractor arising under the

FM Contract or otherwise affects the relationship or rights of the Contractor

and/or the FM Contractor under the FM Contract (the “FM Contract

Dispute”);

then the Contractor may include as part of its submissions made to the Adjudicator

submissions made by the Building Contractor or by the FM Contractor as

appropriate.

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48.2 Any submissions made by the Building Contractor or the FM Contractor shall:

48.2.1 be made within the time limits applicable to the delivery of submissions by

the Contractor; and

48.2.2 concern only those matters which relate to the dispute between the Authority

and the Contractor arising out of this Agreement or in connection therewith.

49. Notwithstanding Rules 14 and 32, neither party shall make any application

whatsoever to the Court of Session in relation to the conduct of the Adjudication or

the decision of the Adjudicator

49.1 after the date ninety (90) days from the decision of the Adjudicator; and where

requested under Paragraph 27, the date reasons are provided. Nothing in this

Paragraph 49 shall restrict the rights of either party to make application to the Court

of Session to enforce the decision of the Adjudicator.

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Contract means the Agreement between the Authority and the Contractor relative to

the design, construction, financing and operation of the Project Facilities and

associated services (including its Schedule Parts) dated on or about the date hereof;

Contractor Event of Default shall have the meaning given to it in the Contract;

Event of Default shall have the meaning given to it in the Credit Agreement;

Liquid Market shall have the meaning given to it in the Contract;

Representative means

(a) the Security Trustee, any Senior Lender and/or any of their Affiliates;

(b) an administrator administrative receiver, receiver or receiver and

manager of the Contractor appointed under the Security Documents;

(c) a person directly or indirectly owned or controlled by the Security

Trustee and/or any Senior Lender(s); or

(d) any other person approved by the Authority (such approval not to be

unreasonably withheld or delayed);

Required Period means, subject to Clause 4 of this Agreement (No Liquid Market)

the period starting on the date of a Termination Notice and;

(a) during the Works Period ending 120 days later; and

(b) during the period following the last Service Availability Date ending 90 days

later;

Security Document has the meaning ascribed to it in the Credit Agreement and

shall include any subsequent securing documents created in accordance with the

terms of the Credit Agreement and the Contract;

Senior Debt Discharge Date means the date on which all amounts owing by the

Contractor to the Senior Lenders under the Senior Funding Agreements have been

irrevocably paid in full and the Senior Lenders have no further obligations to provide

funding to the Contractor;

Step-In Date means the date on which the Security Trustee takes any action under

Clause 5.1 of this Agreement;

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Step-In Period means the period from the Step-In Date up to and including the

earlier of;

(a) the Step-Out Date;

(b) the date of any transfer under Clause 8 of this Agreement;

(c) the date of any termination for breach under Clause 6 of this Agreement; and

(d) the date of expiry of the Contract;

Step-Out Date means the date falling 30 days after the date of the notice given

under Clause 7 of this Agreement (Step-Out);

Suitable Substitute Contractor has the meaning given in the Contract;

Termination Notice means a notice given by the Authority to the Security Trustee

under Clause 3.1 of this Agreement; and

Unrestricted Assets means those Assets, excluding any revenues or cash balances

or claims outstanding at the date of transfer under any Sub-Contract, which are

required by the Authority or its nominee or any replacement of the Contractor for the

purposes of the construction, operation or maintenance of the Project Facilities

following termination assuming such construction operation or maintenance is carried

out on terms substantially the same as the terms of the Contract.

1.2 In this Agreement except where the context otherwise requires:

1.2.1 each gender includes all genders;

1.2.2 the singular includes the plural and vice versa;

1.2.3 a reference to any Clause or Sub-clause is, except where expressly stated

to the contrary, a reference to such Clause or Sub-clause of this Agreement;

1.2.4 save where stated to the contrary, any reference to this Agreement or to any

other document shall include any permitted variation, amendment or

supplement to such document but (where applicable) subject to the

provisions of the Contract and this Agreement;

1.2.5 any reference to any enactment, order, regulation or other similar

instrument, statute or statutory provision shall be construed as a reference

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to the enactment, order, regulation, instrument, statute or statutory provision

as amended, replaced, consolidated or re-enacted;

1.2.6 any reference to a person includes firms, partnerships, limited liability

partnerships and corporations and (subject to Clause 12 (Assignation)) their

successors and permitted assignees or transferees;

1.2.7 the Clause and Sub-clause headings and captions in the body of this

Agreement do not form part of this Agreement and shall not be taken into

account in its construction or interpretation;

1.2.8 words preceding “include”, “includes”, “including” and “included” shall be

construed without limitation by the words which follow those words; and

1.2.9 words in parentheses and italics appearing after a Clause reference are

inserted for ease of reference only. If there is any discrepancy between the

Clause reference and the words in parentheses and italics appearing after a

Clause reference, the Clause reference shall prevail.

1.3 Capitalised terms defined in the Contract have the same meaning in this Agreement.

2.

2.1 The Authority acknowledges notice of, and consents to, the security interest granted

over the Contractor’s rights under the Contract, the other Project Documents to which

both the Authority and the Contractor are a party and the Required Insurances

effected by the Contractor in favour of the Senior Lenders under the Security

Documents.

2.2 The Authority confirms that it has not received notice of any other security interest

granted over the Contractor’s rights under the Contract.

3.

The Authority shall not terminate or give notice terminating the Contract without

giving to the Security Trustee:

3.1 at least the Required Period of prior written notice stating:

3.1.1 the proposed Termination Date; and

3.1.2 the grounds for termination in reasonable detail; and

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3.2 not later than the date falling 30 days after the date of Termination Notice or (if

earlier) the date falling 30 days after the date on which the Security Trustee informs

the Authority that an Event of Default has occurred, a notice containing details of any

amount owed by the Contractor to the Authority, and any other existing liabilities or

unperformed obligations of which the Authority is aware (having made reasonable

enquiry):

3.2.1 at the time of the Termination Notice or the notification of an Event of

Default;

3.2.2 which will fall due on or prior to the end of the Required Period, under the

Contract; and/or

3.2.3 which involve disputes between the Authority and the Contractor and which

have been submitted but not yet determined in accordance with the Dispute

Resolution Procedure.

4.

4.1 At any time during the Required Period the Security Trustee may issue a written

notice (the “No Liquid Market Notice”) to the Authority setting out the reasons why

the Agent does not believe that a Liquid Market exists.

4.2 On or before the date falling 14 days after the date on which a No Liquid Market

Notice is received by the Authority, the Authority shall notify the Security Trustee of

its opinion as to whether or not a Liquid Market exists. Where the Authority believes

that a Liquid Market does exist, such notice shall set out the reasons for the

Authority’s belief. If the parties do not agree whether or not a Liquid Market exists,

then either party may refer the dispute to be determined in accordance with clause 64

of the Contract (Dispute Resolution) as if references therein to the Contractor were

references to the Security Trustee.

4.3 If the parties agree or it is determined in accordance with clause 64 of the Contract

(Dispute Resolution) that no Liquid Market exists, the Contract shall automatically

terminate and the provisions of Clause 45.3 of the Contract (No Retendering

Procedure) shall apply.

4.4 If any dispute relating to this Clause 4 is determined under clause 64 of the Contract

(Dispute Resolution), the Required Period shall be extended by the period of time

spent determining such dispute under clause 64 of the Contract (Dispute Resolution).

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8.

8.1 Subject to Clause 8.2 below, at any time:

8.1.1 during which an Event of Default is subsisting; or

8.1.2 during the Step-In Period,

the Security Trustee may, on 30 days’ prior written notice to the Authority and any

Appointed Representative, procure the transfer of the Contractor’s rights and

liabilities under the Contract to a Suitable Substitute Contractor.

8.2 The Authority shall notify the Security Trustee as to whether any person to whom the

Security Trustee proposes to transfer the Contractor’s rights and liabilities under the

Contract is a Suitable Substitute Contractor, on or before the date falling 30 days

after the date of receipt of all information reasonably required by the Authority to

decide whether the proposed transferee is a Suitable Substitute Contractor.

8.3 The Authority shall not unreasonably withhold or delay its decision on whether the

proposed transferee is a Suitable Substitute Contractor.

8.4 On any transfer referred to in Clause 8.1 above becoming effective:

8.4.1 the Contractor shall be released from any obligations arising under or in

connection with the Contract from that date and the new Contractor shall

become liable for obligations arising on or after that date;

8.4.2 any accrued Warning Notices, Persistent Breach Warning Notices,

Persistent Breach Final Notices, notices referred to in Clause 35.1.9 of the

Contract and/or Deductions incurred under the Contract, shall for the

purposes of termination only, and without prejudice to the rights of the

Authority to make financial deductions, be cancelled;

8.4.3 any then subsisting ground for termination of the Contract by the Authority

shall be deemed to have no effect and any subsisting Termination Notice

shall be automatically revoked; and

8.4.4 the Authority shall enter into a direct agreement with the Senior Lenders

lending to the new Contractor on substantially the same terms as this

Agreement.

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8.5 If the Authority decides that any person proposed by the Security Trustee is not a

Suitable Substitute Contractor then:

8.5.1 the Security Trustee may refer the matter for dispute resolution in

accordance with Clause 64 of the Contract (Dispute Resolution) as if

references therein to the Contractor were references to the Security Trustee;

and/or

8.5.2 the Security Trustee may, acting reasonably, at any time make further

proposals in relation to a Suitable Substitute Contractor, whether by

providing further information in relation to that person which the Security

Trustee reasonably believes would satisfy the criteria for a Suitable

Substitute Contractor or by providing the information in relation to a different

person, provided that the Security Trustee shall not be entitled to propose

that any person be appointed a Suitable Substitute Contractor in

circumstances in which any other such proposal made by the Security

Trustee remains outstanding.

9.

Notwithstanding the other provisions of this Agreement and the terms and conditions

of the Senior Funding Agreements, the Security Trustee shall only permit amounts to

be released from the Joint Insurance Account in accordance with the requirements of

Clause 62 (Reinstatement) of the Contract and shall not exercise any rights under the

Senior Funding Agreements or take any other steps to prevent amounts being

released from the Joint Insurance Account in accordance with Clause 62.3.2

(Reinstatement Obligations) of the Contract.

10.

10.1 Notwithstanding any provision in the Authority Direct Agreements to the contrary, the

Authority agrees that, subject to Clauses 10.2 and 10.3, it will not, in respect of any

particular Authority Direct Agreement, exercise or seek to exercise any of its step-in

rights or other rights under such agreement until the earlier of:

10.1.1 the Senior Debt Discharge Date; or

10.1.2 the date on which the Security Trustee has given its written consent to such

exercise, or

10.1.3 the time when in respect of any such Authority Direct Agreement either:

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(a) the Senior Lenders have failed to exercise any corresponding right to

such Authority Direct Agreement under their own Security

Documents and the time for exercising such right has ended in

accordance with the terms thereof;

(b) the Security Trustee has confirmed in writing to the Authority

(following any request from the Authority for such confirmation, to

which the Security Trustee shall be obliged to respond promptly) that

it does not intend to exercise any of its rights under the relevant

Security Document or that it has no further claim thereunder; or

(c) the Senior Lenders have stepped in to, or otherwise, directly or

indirectly, taken control over the rights of the Contractor under, such

agreement (in accordance with their rights under their Security

Documents) and then stepped out from, or otherwise relinquished

control of such rights under or in connection with such agreement.

10.2 In addition to its rights under Clause 10.1, where the Contract has not been

terminated but a counterparty has a right to terminate its sub-contract for breach by

the Contractor of the terms of such sub-contract, the Authority may pay directly, or

undertake to make payment directly to the counterparty concerned, amounts due

pursuant to the sub-contract and may set off any such sums against any payments

payable by the Authority to the Contractor under the Contract, so as to satisfy them

pro tanto, provided always that the Authority shall not exercise its rights under this

Clause 10.2 in respect of any particular such sub-contract;

10.2.1 in circumstances where the Senior Lenders have stepped in to, or

otherwise, directly or indirectly, taken control over, the relevant sub-contract

and not stepped out of it or otherwise relinquished such control; or

10.2.2 unless the Authority reasonably believes that the Senior Lenders are not

seeking to preserve continuity of service or build obligation (as relevant)

under the relevant sub-contract with reasonable diligence (or under any

equivalent service or build obligation under the Contract).

10.3 In addition to its rights under Clause 10.1, where the Contract has been terminated,

the Authority shall from the Termination Date be able to exercise any of its step-in

rights or other rights under or in respect of the Authority Direct Agreements; however,

notwithstanding the terms of the Authority Direct Agreements or any other provisions

of this Clause 10.3, each of the relevant sub-contractors (or any guarantors thereof

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as relevant) shall remain responsible, and be liable, to the Contractor in respect of all

costs, claims, damages, losses and liabilities that have arisen out of or in connection

with the relevant sub-contracts in respect of the period prior to the Termination Date

in relation to which the Security Trustee acting on behalf of the Contractor or the

Senior Lenders shall retain the benefit of all and any rights to all such costs, claims,

damage, losses and liabilities.

10.4 Except in accordance with the provisions of Clause 10.1 to 10.3 (inclusive) and 10.6,

the Authority shall not, prior to the Senior Debt Discharge Date:

10.4.1 claim, recover, retain or receive (or seek to claim, recover, retain or receive)

any amount under the Authority Direct Agreements in respect of a loss for

which a sub-contractor or relevant counterparty is also liable to the Senior

Lenders;

10.4.2 take any action to wind-up, appoint an administrator, seek an interim order

appointee (under paragraph 3(b) Schedule B1 of the Insolvency Act 1986

(as amended)), or sanction a voluntary arrangement (or similar) in relation to

the Contractor; or

10.4.3 save with the prior written consent of the Security Trustee, compete on

grounds (whether in whole or in part) relating to the Project (by virtue of a

claim under any of the Authority Direct Agreements, the Contract or any

other Project Document or otherwise) with the rights of the Senior Lenders

on any formal insolvency of any sub-contractor or the Contractor, nor claim

to be subrogated to any rights of any Senior Lenders.

10.5 The Authority agrees and undertakes that if it receives any amount in contravention

of the provisions of Clause 10.4 above, it will promptly turn the same over to the

Security Trustee and, pending such payment, hold the same on trust for the Security

Trustee and the Senior Lenders.

10.6 Notwithstanding the terms of the Contract and the Security Documents, the Security

Trustee agrees that the Authority may exercise its rights to have transferred to it or its

nominee any Unrestricted Assets following the Termination Date and the Security

Trustee will not exercise or seek to exercise any enforcement rights, and shall, on or

before the date any Unrestricted Assets are transferred to the Authority or its

nominee, as the case may be, release its security over them.

10.7 Notwithstanding the terms of the Funding Agreements, the parties agree and shall, to

the extent it is within their power, direct that all insurance proceeds receivable or

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received by the Contractor under the insurances referred to in Clause 61 (Insurance)

of the Contract shall be paid directly into the Joint Insurance Account and applied in

accordance with the Contract.

11.

11.1 The Authority shall at the Contractor’s expense, take whatever action the Security

Trustee, an Appointed Representative or a Representative taking a transfer in

accordance with Clause 8.1 above may require for perfecting any transfer or release

under Clauses 5 (Representative), 7 (Step-out) and 8 (Novation) of this Agreement,

including the execution of any transfer or assignation and the giving of any notice,

order or direction and the making of any registration which, in each case, the Security

Trustee, Appointed Representative or Representative reasonably requires.

11.2 The Authority shall not take any action to wind up, appoint an administrator or

sanction a voluntary arrangement (or similar) in relation to the Contractor.

11.3 This Agreement shall remain in effect until the date on which all amounts which may

be or become owing by the Authority to the Contractor under Part 7 of the Contract

(Compensation on Termination) have been irrevocably paid in full, whereupon the

Security Trustee agrees on behalf of itself and the Senior Lenders to release any

security granted in their favour over the Assets which has not previously been

assigned to the Authority.

11.4 The Security Trustee, in respect of Clauses 11.4.1, 11.4.2 and 11.4.3, and the

Contractor in respect of Clause 11.4.4, shall promptly notify the Authority of:

11.4.1 any decisions to accelerate the maturity of any amounts owing by the

Contractor to the Senior Lenders under the Credit Agreement and/or

demand repayment;

11.4.2 the date referred to in Clause 11.3 above on or before the date falling 30

days after its occurrence;

11.4.3 the details and amount of any proposed Additional Permitted Borrowing,

including:

(a) the circumstances giving rise to it and reasons for it; and

(b) the terms on which it will be borrowed; and

445


11.4.4 on the first Business Day of each calendar month during which any

Additional Permitted Borrowing is, or may be, subsisting, the amount

outstanding under the Senior Funding Agreements (as the same may be

amended (whether or not with the approval of the Authority)), and, to the

extent it is aware (having made reasonable and proper enquiry):

(a) the amount of any Distribution made by the Contractor; and

(b) the amount of any credit balance on any account of the Contractor.

11.5 The Contractor joins in this Agreement to acknowledge and consent to the

arrangements set out and agrees not knowingly to do or omit to do anything that may

prevent any party from enforcing its rights under this Agreement.

11.6 For the avoidance of doubt, if there is any conflict or inconsistency between the

provisions of this Agreement and the Contract, the provisions of this Agreement shall

prevail.

11.7 Save to the extent expressly provided in this Agreement it is expressly declared that

no rights shall be conferred under and arising out of this Agreement upon any person

other than the parties hereto and without prejudice to the generality of the foregoing,

there shall not be created by this Agreement a jus quaesitum tertio in favour of any

person whatsoever.

11.8 This Agreement may not be varied or amended unless in a document expressed to

be supplemental to this Agreement and signed by a duly authorised director of the

Contractor and by a duly authorised signatory of each of the Authority and the

Security Trustee.

11.9 If any term, condition or provision of this Agreement shall be held to be invalid,

unlawful or unenforceable to any extent, such term, condition or provision shall not

affect the validity, legality and enforceability of the other provisions of or any other

documents referred to in this Agreement.

11.10 No term or provision of this Agreement shall be considered as waived by any party to

this Agreement unless a waiver is given in writing by that party.

12.

12.1 No party to this Agreement may assign or transfer any part of its rights or obligations

under this Agreement, save that:

446


12.1.1 the Security Trustee may assign or transfer its rights and obligations under

this Agreement to a successor Security Trustee in accordance with the

Senior Funding Agreements without the consent of the Authority;

12.1.2 any Senior Lender may assign or transfer its rights under the Senior Funding

Agreements in accordance with the terms of the Senior Funding

Agreements; and

12.1.3 the Authority may assign, novate or otherwise transfer its rights and/or

obligations under this Agreement to any person that the Authority assigns,

novates or otherwise transfer its rights and/or obligations under the Contract

in accordance with Clause 67.1 (Assignation and Sub-contracting) of the

Contract.

12.2 If Clause 12.1.1, above, applies then the Authority shall enter into a direct agreement

with the new Security Trustee on substantially the same terms as this Agreement.

13.

13.1 All notices under this Agreement shall be in writing and shall be served by sending

the same by first class post, facsimile or by hand, leaving the same at:

If to the Contractor IPP (Moray Schools) Limited, Two London

Bridge, London, SE1 9RA

Fax No: 0207 403 1161

For the attention of: Kevin Hawkins, Moray

Schools Asset Manager

If to the Authority The Moray Council, High Street, Elgin, IV30

1BX

Fax No: 01343 563 335

For the attention of: PPP Contract Manager

If to the Security Trustee Aviva Commercial Finance Limited, Sentinel

House, 37 Surrey Street, Norwich, Norfolk,

NR1 3UY

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Fax No: 01603 683608

For the attention of: Underwriting and New

Business Team

13.2 Any party to this Agreement may change its nominated address or facsimile number

by prior notice to the other parties.

13.3 Notices given by post shall be effective upon the earlier of (i) actual receipt, and (ii) 2

Business Days after mailing. Notices delivered by hand shall be effective upon

delivery. Notices given by facsimile shall be deemed to have been received when

there is confirmation of uninterrupted transmission by a transmission report and

where there has been no telephonic communication by the recipient to the senders

(to be confirmed in writing) that the facsimile has not been received in legible form:

13.3.1 within 2 hours after sending, if sent on a Business Day between the hours of

9am and 4pm; or

13.3.2 by 11am on the next following Business Day, if sent after 4pm, on a

Business Day but before 9am on that next following Business Day.

14.

14.1 The Authority, the Security Trustee and the Contractor acknowledge and agree that

this Agreement is intended to be a certified contract in terms of the Local

Government (Contracts) Act 1997 (“the 1997 Act”). The Contractor and the Security

Trustee each hereby gives its consent to this Agreement being a “certified contract”

in terms of the 1997 Act.

14.2 The relevant discharge terms within the meaning of Section 6 of the 1997 Act are set

out in Schedule Part 13 (Relevant Discharge Terms) of the Contract.

448


15.

This Agreement is governed by the laws of Scotland.

IN WITNESS WHEREOF these present on this page and the preceding [] pages are


SEALED with the Common Seal of The Moray Council and SUBSCRIBED for and

on its behalf at on the day of 2010:

………………………………………………… Authorised Signatory

………………………………………………… Full Name




………………………………………………… Full Name

………………………………………………… Director

………………………………………………… Full Name

SUBSCRIBED for and on behalf of the said Aviva Commercial Finance Limited at


………………………………………………… Director /Authorised Signatory

………………………………………………… Full Name


………………………………………………… Full Name

457


relating to third party contractors and the Contractor’s Sub-

Contractors;

Financial term sheets and related funding information

including any funder pricing.

Information contained within or relating to the financial sections of

the Contractor’s Bid submissions (except as otherwise listed in this

Schedule).

Five (5) years from the

date of the relevant

submission

Information relating to benchmarking to the extent that it relates to

information obtained by the Contractor from third parties which it is

reasonable to conclude would be commercially sensitive.

Three (3) years from

the date the

information was

supplied

Minutes of board meetings and supporting information issued to

the Authority Observer Stakeholder Representative pursuant to

Clause 69.4.1.

Six (6) years from the

date the information

was supplied.

459


C It is a condition precedent of the Project Agreement that the FM Contractor, the SPV

and the Beneficiary enter into this agreement (“this Agreement”).

D The Beneficiary has relied and will continue to rely upon the FM Contractor’s

reasonable skill, care and diligence in respect of all matters covered by this Agreement

in so far as they relate to the performance by the FM Contractor of its obligations under

the FM Agreement.

NOW IT IS AGREED:

1. The FM Contractor warrants and undertakes to the Beneficiary that it has complied

and will continue to comply with all the terms and obligations under or arising out of

the FM Agreement on the FM Contractor’s part to be performed and observed and

shall perform and continue to perform the Contract Services in accordance with the

FM Agreement.

2. Without prejudice to Clause 1 of this Agreement, the FM Contractor further warrants

and undertakes to the Beneficiary that:

2.1 it has exercised and will continue to exercise all the reasonable skill, care and

diligence to be expected from a competent facilities management contractor

experienced in carrying out services similar in nature, size and complexity to

the Contract Services in the performance of its duties to the SPV under the

FM Agreement;

2.2 the Contract Services will satisfy all performance specifications and other

requirements contained in the FM Agreement;

2.3 the Contract Services will correspond as to description, quality and condition

with the requirements of the FM Agreement;

2.4 the Contract Services will comply with all Legislation, Guidance and Good

Industry Practice;

2.5 it will not terminate the appointment of, or determine the employment of (as

the case may be), any of its sub-contractors providing cleaning, building

maintenance, janitorial or landscaping/grounds maintenance services without

the prior written approval of the Authority;

460


2.6 it will not seek to modify or vary any of the obligations for which it is

responsible under the FM Agreement in any respect if that modification or

variation will be detrimental to the Beneficiary or affect the Beneficiary’s rights

and obligations under the Project Agreement (save to the extent such

modification or variation has been approved under the Review Procedure of

the Project Agreement) or affect the FM Contractor’s obligations under this

Agreement;

provided that the obligations of the FM Contractor under this Agreement shall be no

greater in extent or quantity than if the Beneficiary had been named as joint employer

with the SPV under the FM Agreement and the FM Contractor shall be entitled in any

action or proceedings by the Beneficiary to rely on any limitation in the FM

Agreement and to raise the equivalent rights in defence of liability as it would have

against the SPV under the FM Agreement (other than counterclaim, set-off or to state

a defence of no loss or a different loss has been suffered by the SPV).

The provisions of Clauses 1, 2.1, 2.2, 2.3 and 2.4 shall not be enforceable by the

Beneficiary prior to termination of the Project Agreement.

3. The Beneficiary has no authority to issue any direction or instruction to the FM

Contractor in relation to the FM Agreement unless and until the Beneficiary has given

notice under Clauses 4 or 5 below. The Beneficiary or its appointee has no liability to

the FM Contractor in relation to amounts due under the FM Agreement unless and

until the Beneficiary has given a notice under Clauses 4 or 5.

4. If the Beneficiary has terminated the Project Agreement in accordance with the terms

of the Project Agreement, the FM Contractor agrees that it will, if so required by notice

in writing given by the Beneficiary, subject to Clause 6 below, accept the instructions of

the Beneficiary or its appointee, as the case may be, (which for the avoidance of doubt

and without limitation may include a third party appointed by the Beneficiary to act as

the “Employer” under the FM Agreement) to the exclusion of the SPV in respect of the

Project upon the terms and conditions of the FM Agreement. The SPV acknowledges

that the FM Contractor shall be entitled to rely on such a notice given to the FM

Contractor by the Beneficiary under this Clause 4 and further acknowledges that such

acceptance of the instructions of the Beneficiary or its appointee, as the case may be,

461


to the exclusion of the SPV shall not constitute any breach of the FM Contractor’s

obligations to the SPV under the FM Agreement.

5. The FM Contractor further agrees that it will not without first giving the Beneficiary not

less than 35 days notice in writing exercise any right or purported right it may have to

determine its employment under the FM Agreement, treat the same as having been

repudiated by the SPV, or discontinue the performance of any duties or obligations

thereunder. Further, the FM Contractor shall within 14 days of giving the said notice,

provide statements to the Beneficiary containing the following:

5.1 all amounts properly due and payable to the FM Contractor under the FM

Agreement on or before the date of issue of the said notice which remain

unpaid;

5.2 in the reasonable estimation of the FM Contractor, the amount of any

monetary claim (if any) asserted by the FM Contractor against the SPV under

the FM Agreement arising out of or in connection with the breach for which

the said notice was served; and

5.3 where the FM Contractor intends to terminate the FM Agreement due to some

default or breach of contract of a non-financial nature:

5.3.1 the provision of the FM Agreement alleged to have been breached or

not fulfilled;

5.3.2 supporting information in reasonable detail to enable the Beneficiary

to identify the material facts;

5.3.3 the steps reasonably required to remedy the specified breaches or

conditions not fulfilled;

5.3.4 the time within which the specified steps can reasonably be expected

to be taken;

5.3.5 (if applicable) the amount of damages claimed and the basis of their

calculation; and

5.3.6 (if applicable) the relief to be sought.

The FM Contractor warrants to the Beneficiary that the statements submitted under

this Clause 5 shall be true, complete and accurate statements of the amounts to

which the FM Contractor considers itself entitled. In the event that the FM Contractor

462


shall delay in giving such notice and information within the said 14 days, the period of

35 days shall be extended to correspond with the period of any such delay.

The FM Contractor’s right to determine its employment under the FM Agreement or

to treat the same as having been repudiated or to discontinue performance shall

cease if, within the said 35 day period (extended as appropriate) and subject to

Clauses 6 and 6A the Beneficiary shall give notice in writing to the FM Contractor

requiring the FM Contractor to accept the instructions of the Beneficiary or its

appointee to the exclusion of the SPV in respect of the Project upon the terms and

conditions of the FM Agreement.

6. It shall be a condition of any notice given by the Beneficiary under Clauses 4 or 5 that

the Beneficiary or its appointee, as the case may be, accepts liability for payment to

the FM Contractor of the sums due under the FM Agreement and detailed in the

statements provided under Clause 5, and for sums that subsequently become due

under the FM Agreement for work done during the period up to 14 days after the

notice given under Clause 8 and for subsequent performance of the SPV’s

obligations. Upon the issue of any notice by the Beneficiary under Clauses 4 or 5

above, the FM Agreement shall remain in full force and effect as if no right of

determination of its employment under the FM Agreement, or any right of the FM

Contractor to treat the FM Agreement as having been repudiated by the SPV had

arisen and the FM Contractor shall be liable to the Beneficiary and/or its appointee,

as the case may be, under the FM Agreement in lieu of its liability to the SPV. If any

notice given by the Beneficiary under Clauses 4 or 5 requires the FM Contractor to

accept the instructions of the Beneficiary’s appointee, the Beneficiary shall be liable

to the FM Contractor as guarantor for the payment of all sums from time to time due

to the FM Contractor from the Beneficiary’s appointee under the FM Agreement.

6A Where the Beneficiary or its appointee, as the case may be, fails to pay sums due

pursuant to Clause 5.1 and/or Clause 5.2 and/or fails to remedy remediable breaches

notified under Clause 5.3 within 28 days of receipt of a notice served by the FM

Contractor under Clause 5, the FM Contractor shall be entitled to terminate the FM

Agreement in accordance with its terms having first given the Beneficiary not less

than 20 Business Days notice of its intention to take such action, provided that the

right to terminate shall cease if such non-payment and/or such failure to remedy

remediable breaches, as the case may be, is remedied within such 20 Business Day

period.

463


7. For the avoidance of doubt, nothing in this Agreement shall prevent the Beneficiary

issuing a notice requiring the FM Contractor to accept the instructions of its

appointee following the issue by the Beneficiary of a notice requiring the FM

Contractor to accept instructions direct from the Beneficiary.

8. The Beneficiary or its appointee may at any time following the issue of any notice by

the Beneficiary under Clauses 4 or 5, serve a further notice that following the expiry

of 14 days from the giving of such notice the Beneficiary or its appointee, as the case

may be, will have no liability (save in respect of the Beneficiary’s or its appointee’s

antecedent breach) for any sums due or to become due to the FM Contractor for

services performed in respect of the period following expiry of the last mentioned 14

day period. The Beneficiary may exercise any of its rights pursuant to Clauses 4, 5

or 7 on more than one occasion.

9. If two or more valid notices claiming rights similar to those set out in this Agreement

are received by the FM Contractor, the deemed order of priority of such notices shall

be that issued by any of the Finance Parties (as defined in the facility agreement

dated on or about the date hereof between the Contractor, Holdco and Aviva

Commercial Finance Limited as Lender and the Security Trustee) pursuant to the

Lender's FM Direct Agreement before any issued by the Beneficiary. Only the notice

deemed to have first priority, unless previously withdrawn or if the rights thereunder

are not exercised, shall take immediate effect and any notice by the Beneficiary shall

be postponed and shall not bind the FM Contractor until the notice issued pursuant to

the Lender's FM Direct Agreement by any of the Finance Parties is withdrawn or

deemed to be withdrawn or the right to claim rights similar to those set out herein is

at an end.

10. Save where, pursuant to Clause 10A, the FM Contractor having used all reasonable

endeavours to procure an irrevocable, non-exclusive and royalty-free licence (which

shall be capable of assignation) has failure to procure such a licence, the FM

Contractor hereby grants to the Beneficiary or its appointee and all those authorised

by the Beneficiary an irrevocable, non-exclusive and royalty-free licence (which shall

be capable of assignation) to use and reproduce all technical information (whether or

not stored in computer systems), drawings, models, bills of quantities, specifications,

schedules, details, plans, programmes, budgets, reports, calculations or other

documents, work or things of a similar nature provided or to be provided by the FM

464


Contractor in connection with the Project (the “Documents”) for any purpose relating

to the Project including (but without limitation) the construction, completion,

maintenance, letting, sale, promotion, advertisement, reinstatement, repair and any

extension of the Project. Such licence shall carry the right to grant sub-licences and

shall subsist notwithstanding that the FM Agreement is terminated or the obligations

and duties thereunder have been completed. For the avoidance of doubt, the grant

of such licence or sub-licences shall not impose any additional liability on the FM

Contractor. The FM Contractor shall not assign or agree to assign the copyright in

any of the Documents without the prior written consent of the Beneficiary such

consent not to be unreasonably withheld or delayed. The FM Contractor shall on

reasonable demand provide to the Beneficiary or its appointee and those authorised

by the Beneficiary additional copies of any Documents on receipt of reasonable

copying costs. The FM Contractor shall not be liable for any use by the Beneficiary

of any of the Documents for any purpose other than that for which the same were

prepared and provided by the FM Contractor or for any improper or negligent use by

the Beneficiary or its appointee.

10A In respect of any Documents to which the FM Contractor does not have a right to

grant a licence on the terms set out in Clause 10 to the Beneficiary or its appointee

and all those authorised by the Beneficiary, the FM Contractor shall use all

reasonable endeavours to procure a right to licence (which licence shall be capable

of assignation) such Documents on an irrevocable, non-exclusive, royalty-free basis

and which licence shall be capable of assignation.

11. This Agreement may be assigned in whole or in part by the Beneficiary to any

successor to the Beneficiary’s interest in the Project or any part thereof without the

consent of the SPV or the FM Contractor being required and such assignation shall

be effective upon written notice thereof being given to the SPV and to the FM

Contractor. No assignation of this Agreement by any other party shall be permitted

other than with the prior written consent of the other parties hereto, and such

assignation shall only be to any person taking over the obligations of the FM

Contractor and/or the SPV under the FM Agreement and/or Project Agreement (as

the case may be).

12. The FM Contractor undertakes that it will not raise as a defence to any action by the

Beneficiary for alleged breach of this Agreement the fact that the obligations of the

SPV to the Beneficiary in respect of the Contract Services have been released as a

result of the termination of the Project Agreement.

465


13. No failure, approval, act or forbearance on the part of the Beneficiary in respect of

any right of the Beneficiary pursuant to this Agreement shall constitute any waiver of

any right of the Beneficiary under or arising out of this Agreement nor relieve the FM

Contractor of any of its duties or obligations under or arising out of this Agreement.

14. Any notice, consent or demand to be given or made by any party under this

Agreement (hereinafter called a “Notice”) shall only be validly served if in writing

and delivered personally or sent by pre-paid first class recorded delivery post or sent

by fax to the following address and marked for the attention of the following person in

the case of each party:

Party: Address: Fax Number: Person

The Beneficiary The Moray Council,

High Street, Elgin,

IV30 1BX

01343 563 335 PPP Contract

Manager

SPV IPP (Moray

Schools) Limited,

Two London Bridge,

London, SE1 9RA

0207 403 1161 Kevin Hawkins,

Moray Schools

Asset Manager

Contractor FES FM Ltd, Forth

House, Pirnhall

Business Park,

Stirling, FK7 8HW

01786 458 889 The Managing

Director

Any party may by Notice to the other party/parties change its address, fax number or

the title of the person for whose attention Notices are to be given or made pursuant

to this Clause. Any such Notice shall be deemed to have been received:

14.1 if delivered personally, at the time of delivery;

14.2 in the case of pre-paid first class recorded delivery post, on the first Business

Day after the date of posting; and

466


14.3 in the case of a fax, at the time of transmission.

If any Notice is delivered or faxed after 5 p.m. on a Business Day, or at any time

during a day which is not a Business Day, that Notice shall be deemed to have been

received at 9 a.m. on the next Business Day. For the purposes of this Clause,

“Business Day” means any day which is not a Saturday, a Sunday or a public

holiday in Scotland. In proving service it shall be sufficient to prove that the envelope

containing such Notice was properly addressed to the relevant party and either

delivered personally to that address or delivered into the custody of the postal

authorities as a pre-paid first class recorded delivery letter, or that such Notice was

transmitted by fax to the correct fax number of the relevant party (as demonstrated

by the transmission slip). For the avoidance of doubt, Notices shall not be validly

served if sent by e-mail.

15. The Beneficiary, the SPV and the FM Contractor acknowledge and agree that this

Agreement is intended to be a “certified contract” in terms of the Local Government

(Contracts) Act 1997. The SPV and the FM Contractor hereby give their consent to

this Agreement being a “certified contract” in terms of the last mentioned Act. The

SPV and the FM Contractor acknowledge that the Beneficiary has satisfied the

“certification requirements” as set out in Section 3 of the last mentioned Act.

16. The definitions of words and phrases used in this Agreement shall be those set out in

the FM Agreement except where expressly defined in this Agreement.

467


17. This Agreement shall be governed by and construed in accordance with Scots Law

and the parties hereto submit to the exclusive jurisdiction of the Scottish Courts.

IN WITNESS WHEREOF these presents on this page and the preceding pages are


SEALED with the Common Seal of the said The Moray Council and SUBSCRIBED for and

on its behalf at on the day of 2010

………………………………………. Authorised Signatory

………………………………………. Full Name



………………………………………. Director/Authorised Signatory

………………………………………. Full Name

………………………………………. Director/Authorised Signatory/Witness

………………………………………. Full Name

SUBSCRIBED for and on behalf of the said FES FM Limited at



………………………………………. Full Name


………………………………………. Full Name

469


(d) the Senior Lender Collateral Warranties;

(e) the Building Contractor Guarantee;

(f) the FM Contractor Guarantee;

(g) Interface Agreement;

(h) any other agreement that the Parties agree to be material to the

implementation of the Project (other than the Key Funding Documents);

"New Compensation Amount Estimate" as defined in Paragraph 6.1 of this Part 23

of the Schedule;

"Non-Compliant Quotation" means any Quotation which:

(a) could result in a Compensation Amount in excess of the New Compensation

Amount Estimate; and/or

(b) requires the material amendment to or variation of any Key Project Document

or any waiver of any material term of any Key Project Document (save to the

extent detailed in the Information Memorandum);

"Optimal Compliant Refinancing" means the Optimal Refinancing excluding any

Structured Refinancing proposed in terms of Non-Compliant Quotations;

"Optimal Refinancing" means the Structured Refinancing proposed in terms of a

Quotation which gives rise to the largest Refinancing Gain;

"Original Compensation Amount Estimate" as defined in Paragraph 7.2 of this

Part 23 of the Schedule;

"Qualifying Tenderer" means:

(a) in relation to the Senior Debt:

(i) one or more Qualifying Banks;

(ii) the Senior Lenders (or one or any of them); and/or

(iii) any other person or persons approved by the Authority (acting

reasonably);

470


and/or

(b) in relation to the Junior Debt:

(i) one or more Qualifying Banks;

(ii) the Junior Lenders (or one or any of them); and/or

(iii) any other person or persons approved by the Authority (acting

reasonably);

"Quotation" means, in respect of a prospective Structured Refinancing, an offer from

a Qualifying Tenderer or Qualifying Tenderers in response to the Information

Memorandum setting out all information relative to that Qualifying Tenderer’s

proposed involvement in the Structured Refinancing, including (without limitation):

(a) the proposed amount of senior debt and/or junior debt to be advanced;

(b) the proposed margin, and fees payable in relation to the senior debt to be

advanced and/or the proposed rate of interest applicable to, and fees payable

in relation to, the junior debt to be advanced;

(c) any commitment, arrangement or other fees payable as a result of effecting

the Structured Refinancing;

(d) any reserving requirements under the proposed new funding documentation;

(e) the proposed repayment profile of the senior debt and/or the junior debt;

(f) hedging arrangements;

(g) unless the Authority has previously indicated in writing that it does not require

this information or where the Structured Refinancing proposed does not give

rise to a Refinancing Gain in a lump sum, details of the level of the Unitary

Charge that would be payable following the proposed Structured Refinancing

if the Authority’s share of the prospective Refinancing Gain arising as a result

of the proposed Structured Refinancing were to be applied in reduction of the

level of Unitary Charge payable;

"Response Period" as defined in Clause 9 of this Part 23 of the Schedule;

"Selected Refinancing" as defined in Clause 12 of this Part 23 of the Schedule;

471


"Senior Lender Collateral Warranties" means the documents numbered 1 and 2 in

Section B of Schedule Part 6.

2. In relation to any Structured Refinancing the Contractor shall follow the procedure set

out in this Part 23 of the Schedule.

3. Not used.

4. In advance of commencing the process to implement a Structured Refinancing, the

Parties shall agree a budget to cover the proper and reasonable costs of such

Structured Refinancing. If no agreement is reached regarding a budget for the

proper and reasonable costs of such Structured Refinancing, the budget shall be

determined through the Dispute Resolution Procedure. If the Authority does not

agree to meet, and the Surpluses that have been generated (but not yet paid to a

Qualifying Charity) by the Contractor are insufficient to meet, the costs of the

proposed Structured Refinancing then the Structured Refinancing shall not proceed.

If the Authority has agreed to meet the costs of the Structured Refinancing and such

Structured Refinancing is not implemented the costs and expenses reasonably and

properly incurred in connection with such proposed Structured Refinancing (the

"Refinancing Costs") shall first (subject to a maximum of the amount set out in the

agreed budget) be satisfied out of any Surpluses that have been generated (but not

yet paid to the Qualifying Charity) by the Contractor. To the extent that such

Surpluses are not sufficient to satisfy the Refinancing Costs in full, the balance of the

Refinancing Costs (subject to a maximum of the amount set out in the agreed

budget) which have been borne by the Contractor shall be reimbursed by the

Authority to the Contractor within 20 Business Days of a written demand therefore by

the Contractor, supported by all such information as is reasonable to evidence the

amount of such Refinancing Costs; provided that, in the event that there is a

subsequent successful Qualifying Refinancing, any such Refinancing Costs will be

repaid to the Authority prior to calculating any Refinancing Gain from such

subsequent Qualifying Refinancing.

5. The Contractor shall agree with the Authority the basis and methodology upon which

it will calculate its estimate of the maximum Compensation Amount that could arise if

the proposed Structured Refinancing were to take place and the maximum

Compensation Amount that could arise if the proposed Structured Refinancing does

not take place (the "Compensation Calculations").

472


6. Following agreement of the Compensation Calculations, the Contractor shall prepare

an information memorandum in respect of any proposed Structured Refinancing

setting out the following information:

6.1 an executive summary of the structure of the Project;

6.2 a detailed summary of each Key Project Document and each Key Funding

Document;

6.3 details of the ownership, organisation and management of the Contractor;

6.4 financial information regarding the Contractor, the FM Contractor, the Building

Contractor (but only to the extent such information memorandum is being

prepared prior to the second anniversary of the occurrence of the Service

Availability Date for the last New Project Facility to which the Building

Contract entered into by such Building Contractor relates) the Junior Lenders

including details of experience in projects procured under the PFI, the nature

and extent of involvement in the Project and any parent company or other

credit support of their respective obligations under the relevant Key Project

Document;

6.5 a detailed Project description;

6.6 a risk matrix showing the risk allocation between the Contractor, the Authority,

the Building Contractor and the FM Contractor in relation to the major risks

involved in the Project;

6.7 an indicative term sheet in relation to the senior debt terms and the junior

debt terms sought to be achieved as a result of the proposed Structured

Refinancing to be effected;

6.8 any amendments required to the terms of the Key Project Documents; and

6.9 if the Authority has made that decision at the time of the preparation of such

information memorandum, whether or not the Authority intends to take its

share of the Refinancing Gain arising from the proposed Structured

Refinancing as a lump sum or as a reduction in the Unitary Charge over the

remaining term of the Agreement (or as a combination of both options)

(the "Information Memorandum").

473


7. Following preparation of the Information Memorandum the Contractor shall issue the

Information Memorandum to the Authority for consideration together with the

Contractor’s estimate (based, in the case of Paragraphs 7.1 and 7.2, upon the

Compensation Calculations) of the following:

7.1 the maximum Compensation Amount that could arise if the proposed

Structured Refinancing were to take place to which the Information

Memorandum relates based upon the indicative term sheets referred to in

Paragraph 6.7 (the "New Compensation Amount Estimate");

7.2 the maximum Compensation Amount that could arise if the proposed

Structured Refinancing does not take place (the "Original Compensation

Amount Estimate");

7.3 the Refinancing Gain that would arise if the proposed Structured Refinancing

were to take place; and

7.4 unless the Authority has previously indicated in writing that it does not require

this information or where the proposed Structured Refinancing does not give

rise to a Refinancing Gain in a lump sum, the level of the Unitary Charge that

would be payable if the Authority’s share of the prospective Refinancing Gain

referred to at Paragraph 7.3 were to be applied in reducing the Unitary

Charge.

8. Within 20 Business Days of receipt of the Information Memorandum and the

Compensation Estimates, the Authority shall notify the Contractor whether or not it

agrees to those terms of the Information Memorandum listed in Paragraphs 6.7 and

6.8 and the New Compensation Amount Estimate. If the Authority does not so agree

the Authority and the Contractor shall within 10 Business Days of the Authority’s

notification to that effect meet with a view to discussing and agreeing those terms of

the Information Memorandum listed in Paragraphs 6.7 and 6.8 and the New

Compensation Amount Estimate.

9. Following agreement of the Information Memorandum and the New Compensation

Amount Estimate, the Contractor shall seek to obtain Quotations from Qualifying

Tenderers in relation to the proposed Structured Refinancing based upon the terms

of the Information Memorandum and shall stipulate a date by which such Quotations

must be returned to the Contractor, being no earlier than 20 Business Days and no

later than 40 Business Days, following the issue of the Information Memorandum (the

474


"Response Period"). The Contractor shall use reasonable endeavours to obtain not

less than 3 Quotations from such persons from whom it would be reasonable to

obtain Quotations (having regard to the terms of the Funding Agreements, the

proposed term sheets for the Structured Refinancing set out in the Information

Memorandum, the financial markets relevant to the proposed Structured Refinancing

and any other relevant factors affecting the Project at that time).

10. At the end of the Response Period if the Contractor has received Quotations, the

Contractor shall evaluate each such Quotation to determine which of the Quotations

will result in the Optimal Refinancing and which will result in the Optimal Compliant

Refinancing.

11. Within 5 Business Days of determination by the Contractor as to which Quotation will

result in the Optimal Refinancing and which will result in the Optimal Compliant

Refinancing, the Contractor shall provide to the Authority copies of each of the

Quotations which have been received by the Contractor together with a report

identifying the Optimal Refinancing and the Optimal Compliant Refinancing. If the

Authority does not agree with the Contractor’s calculation of the Optimal Refinancing,

the Contractor’s calculation of the Optimal Compliant Refinancing or the Contractor’s

opinion as to whether a Quotation is a Compliant Quotation or a Non-Compliant

Quotation, such matter shall be referred to the Dispute Resolution Procedure.

12. Within 20 Business Days of agreement or determination of the Optimal Refinancing

and the Optimal Compliant Refinancing, the Authority shall notify in writing to

Contractor which, if any, of the Quotations should be selected provided that the

Authority shall only be entitled to select:

12.1 without the consent of the Contractor either:

12.1.1 the Optimal Compliant Refinancing; or

12.1.2 any Non-Compliant Refinancing that (i) results in a larger Refinancing

Gain than the Optimal Compliant Refinancing and (ii) the

implementation of which would not require the agreement of any

person other than the Authority or the Contractor;

12.2 with the consent of the Contractor, any Compliant or Non-Compliant

Quotation; and/or

475


12.3 any Quotation refinancing the Junior Debt only, where the consent of the

Senior Lenders can be obtained;

(the Quotation so selected being the "Selected Refinancing") and the Authority’s

consent in terms of Clause 85.1 of this Agreement shall be deemed to be given in so

doing.

13. The Contractor shall take all steps required to carry out the Selected Refinancing.

477


refurbishment/construction, financing and operation of one secondary school and one

primary school and associated services in Moray for the Authority

“Project Co Articles” means the articles of association of the Contractor adopted on

or about the date hereof

"Refinancing Provisions" means Clause 85 (Refinancing Provisions) of the Project

Agreement

"Relevant Structured Refinancing" means a Structured Refinancing under the

provisions of Part 23 (Structured Refinancing Protocol) of the Schedule to the Project

Agreement involving the refinancing of Loan Stock;

1.2 Interpretation

1.2.1 Capitalised terms defined in the Project Agreement shall have the same

meaning in this Agreement.

1.2.2 The clause headings in this Agreement are for ease of reference only and

are not to be taken into account in the construction or interpretation of any

provision to which they refer.

1.2.3 Unless the context otherwise requires:

(1) a reference in this Agreement to any clause or sub-clause, is, except where it is expressly stated to the contrary, a reference to such clause or sub-clause of this Agreement;

(2) references to this Agreement or to any other such document shall

include any permitted variation, amendment or supplements to such document;

(3) references to any enactment, order, regulation or other similar

instrument shall be construed as a reference to the enactment, order, regulation or instrument (including any EU instrument) as amended or re-enacted;

(4) references to a person includes firms and corporations and their

successors and permitted assignees or transferees;

(5) words in this Agreement importing any one gender include both other genders and may be used interchangeably;

(6) words in this Agreement importing the singular meaning, include the

plural meaning and vice versa;

1.2.4 Undertakings given by the Junior Lender under this Agreement are given

severally and not jointly.

479


5.

5.1 If, at any time whilst Loan Stock remains in issue, the Junior Lender transfers or

disposes (whether for consideration or not) of its legal or beneficial interest in any

HoldCo Shares to any person, it undertakes on the same day to transfer to that

person a similar interest in some or all of the Loan Stock held by it, such that the ratio

of HoldCo Shares to Loan Stock held by that Junior Lender is (so far as practicable)

the same before and after such transfers.

5.2 If, at any time whilst Loan Stock remains in issue, the Contractor redeems some or all

of that Loan Stock and at or around the same time, or as part of a series of

connected transactions, the Contractor issues Loan Stock to another person, the

Junior Lender holding the redeemed Loan Stock undertakes on the same day (or as

soon as practicable thereafter) to transfer its legal and beneficial interest in some or

all of the HoldCo Shares held by it, such that the ratio of HoldCo Shares to Loan

Stock held by that Junior Lender is (so far as practicable) the same before and after

such transfers.

6.

At the same time as the A Shares (as defined in the Project Co Articles) are

transferred to the Qualifying Charity pursuant to article 4.10 of the Project Co Articles,

the Junior Lender undertakes to procure the transfer of all their shares in Holdco to

the Qualifying Charity, unless at that time there is no Qualifying Charity for the

purposes of the Project Agreement in which case the Junior Lender shall procure the

transfer of all its shares in Holdco as soon as reasonably practicable following

notification by the Authority that there is a Qualifying Charity for the purposes of the

Project Agreement.

7.

This Agreement may not be varied, amended or supplemented unless expressly

recorded in writing by a document expressed to be supplemental to this Agreement

and signed by or on behalf of the Parties.

8.

8.1 No Party to this Agreement shall be entitled to assign, charge or transfer its interest,

or any part thereof, in this Agreement without the prior consent of the other Party

hereto.

480


8.2 The Authority shall assign or transfer its interest in and to the Agreement to any party

to whom it assigns or transfers its interests in and to the Project Agreement in

accordance with Clause 67 (Assignation and Sub-Contracting) of the Project

Agreement.

8.3 The Junior Lender shall procure that any party to whom all or any of the Loan Stock

is transferred shall enter into a new direct agreement with the Authority on

substantially the same terms as this Agreement.

9.

Unless otherwise stated in this Agreement, this Agreement constitutes the entire

agreement between the parties in connection with its subject matter and supersedes

all prior representations, communications, negotiations and understandings

concerning the subject matter of this Agreement. No party has relied on any

representation except as expressly set out in this Agreement.

10.

10.1 The failure of any party to exercise any contractual right or remedy shall not

constitute a waiver thereof until communicated in writing under Clause 10.2.

10.2 No waiver shall be effective unless it is communicated in writing to the other party.

10.3 A waiver of any right or remedy arising from a breach of contract shall not constitute

a waiver of any right or remedy arising from any other breach of this Agreement.

11.

If any term, condition or provision contained in this Agreement shall be held to be

invalid, unlawful or unenforceable to any extent, such term, condition or provision

shall not affect the validity, legality or enforceability of the remaining parts of this

Agreement.

12.

The Junior Lender shall be bound to comply with the obligations on the part of

Contractor contained in Clause 59 (Information and Confidentiality) of the Project

Agreement in relation to all information and matters obtained from any other party

under or in connection with the Project.

481


13.

13.1 Any notice served under or in connection with this Agreement is to be in writing and

shall be deemed to have been served:

13.1.1 if delivered at the time of delivery; or

13.1.2 if posted at noon (Greenwich mean time) one Business Day after posting; or

13.1.3 if set by fax at the time shown in the relevant transmission report for the

complete fax.

provided that a notice or other communication received on a non-Business Day or

after 5p.m. in the place of receipt shall be deemed to be received at 9a.m. on the

next following Business Day in such place.

13.2 Any notice to be given to the Authority should be marked for the attention of PPP

Contract Manager and delivered to The Moray Council, High Street, Elgin, IV30 1BX

or faxed to 01343 563 335 or such other party or address or fax number as notified in

writing to the Junior Lender by the Authority.

13.3 Any notice to be given to the Junior Lender should be marked for the attention of

Cameron Cook and delivered to IPP Bond Limited, Two London Bridge, London, SE1

9RA or faxed to 0207 403 1161 or such other party address or fax number as notified

in writing to the Authority by the Junior Lender.

13.4 Any consent or approval under this Agreement is required to be obtained before the

act or event to which it applies is carried out or done and is to be treated as effective

only if the consent or approval is given in writing.

482


14.

14.1 This Agreement is governed by the laws of England and Wales.

14.2 The parties agree that the courts of England and Wales shall have exclusive

jurisdiction to hear and settle any action, suit, proceeding or dispute in connection

with this Agreement and irrevocably submit to the jurisdiction of those courts.

IN WITNESS WHEREOF these presents are executed on the date first above written:

Are SEALED with the Common Seal of The Moray Council and SUBSCRIBED for and on

its behalf at on the day of 2010:

………………………………………. Authorised Signatory

………………………………………. Full Name

SIGNED for and on behalf of IPP Bond Limited at on the day of

2010 by:


………………………………………. Full Name


………………………………………. Full Name

489


1. In relation to those Relevant Employees who are active members of the Local

Government Scheme and transfer at a Relevant Transfer, the Authority agrees and

accepts the responsibility to ensure that all their past service liabilities accrued within

the Local Government Scheme at the date of the applicable Relevant Transfer are

treated as funded to a funding level of 100% (in accordance with the actuarial

assumptions used in the most recent actuarial valuation of the Local Government

Scheme) as at such Relevant Transfer and as updated to reflect current investment

market conditions (i.e. appropriate bond yields) at that time.

2. The Authority shall indemnify and keep the Contractor indemnified on demand

against all claims, costs, liabilities and expenses (including reasonable legal and

actuarial expenses) reasonably and properly incurred which relate to paragraph 1

above.

3. The payment of employer contributions to the Local Government Scheme in terms of

Regulation 35 of the Administration Regulations in respect of all Relevant Employees

and Assigned Employees (not being Relevant Employees) who are or become

members of the Local Government Scheme shall, subject to the provisions of the

following paragraphs, be the Contractor's responsibility and, for the avoidance of

doubt, the employer contributions made shall be calculated on the basis of paragraph

1 above.

a. However, notwithstanding and without prejudice to the Contractor's obligation

to make the required payments under Regulation 35 of the Administration

Regulations, the responsibilities for funding those contributions in respect of

Relevant Employees (including where such employees are admitted to the

Local Government Scheme after an applicable Relevant Transfer) and

Assigned Employees (not being Relevant Employees) who become members

of the Local Government Scheme, as between the Contractor and the

Authority, shall be as follows:

i. where the rate of such employer contributions is up to and including a

rate which is 3 percentage points above the lnitial Employer

Contribution Rate, solely the responsibility of the Contractor; and

ii. where the rate of such employer contributions is in excess of a rate

which is 3 percentage points above the lnitial Employer Contribution

490


Rate, that part of such employer contributions at a rate of up to and

including 3 percentage points above the lnitial Employer Contribution

Rate shall be the responsibility of the Contractor and that part of such

employer contributions at a rate of more than 3 percentage points

above the lnitial Employer Contribution Rate shall be the responsibility

of the Authority; and

iii. where the rate of employer contributions is less than the lnitial

Employer Contribution Rate, that part of such employer contributions

at a rate of up to and including 3 percentage points less than the lnitial

Employer Contribution Rate shall be for the benefit of the Contractor

and that part of such employer contributions at a rate of more than 3

percentage points below the Initial Employer Contribution Rate shall

be for the benefit of the Authority.

b. provided that:

i. employer contributions for the above purposes shall be exclusive of

any additional contributions which may be required to be paid by the

Contractor to the Local Government Scheme by reason of early

retirement, early payment of benefits, augmentation or the exercise of

a discretion by or on behalf of the Contractor (but excluding the award

of salary increases in line with national pay awards or settlements for

equivalent local government workers in Scotland to the Relevant

Employees and increased hours of employment granted to carry out

the provision of the Services); and

ii. employer contributions for the above purposes shall for the avoidance

of doubt also exclude any contribution which is required in connection

with the termination of the Contractor's participation in the Local

Government Scheme; and

iii. any responsibility of the Authority to fund contributions shall not

extend to any part of employer contributions which relates to an

increase in pay which is in excess of the increases in pay awards or

settlements for equivalent local government workers in Scotland.

c. for the purposes of this paragraph 3, "pay" means the aggregate pensionable

pay (in terms of Regulation 5 of the Benefits Regulations) for those Relevant

Employees.

491


4. Any payment due to the Contractor by the Authority or due to the Authority by the

Contractor under paragraph 3 of this Schedule Part 26 (Pensions) shall, where

possible, be made by adjusting the Unitary Charge appropriately, in accordance with

Section B of Schedule Part 7 (Payment Mechanism), to reflect the monetary payment

required, or, where the Authority and the Contractor agree, promptly by way of lump

sum payments and/or instalments.

5. During the course of this Agreement, the Local Government Scheme shall be valued

as normal, on a triennial basis, or such other basis as may be prescribed. During the

final three years of this Agreement, the section of the Local Government Scheme

which relates to the Contractor or any other Employer's participation in a Local

Government Scheme in respect of the Relevant Employees and/or Assigned

Employees (not being Relevant Employees) who become members of the Local

Government Scheme, shall be valued annually with the aim of ensuring that at the

end of the Agreement there is no surplus or deficit in the appropriate section of the

Local Government Scheme. Appropriate adjustments will be made to the Contractor

and/or Employer's contribution rates during the final years of their participation to

ensure that on termination of the Agreement, no such surplus or deficit has arisen.

Valuations of the Local Government Scheme for this purpose shall be carried out by

an Actuary appointed by the Authority acting reasonably and using the actuarial

assumptions then applicable.

6. In this Schedule Part 26 (Pensions):

a. references to "the Contractor" shall mean the Contractor or other Employer of

the Relevant Employee concerned; and

b. subject to (i) above, defined terms used in Clause 30.2 (Contractor

Responsibilities) shall (for the avoidance of doubt) have the same meaning as

in Clause 30.2;

c. references to "the Administration Regulations" shall mean the Local

Government Pension Scheme (Administration) (Scotland) Regulations 2008,

as amended;

d. references to "the Benefits Regulations" shall mean The Local Government

Pension Scheme (Benefits, Membership and Contributions) (Scotland)

(Regulations) 2008, as amended; and

e. "Initial Employer Contribution Rate" shall mean not more than 19.3% of pay

(as defined in paragraph 3(c) above.

492


493


UK Government Format

1 HM Treasury

1.1 The Green Book

Appraisal and Evaluation in Central Government

http://greenbook.treasury.gov.uk/

Pdf

Ipronet

1.2 Supplementary Green Book Guidance

http://www.hm-treasury.gov.uk/economic data and tools/greenbook/data greenbook index.cfm

Pdf

Ipronet

1.3 The Green Book – Optimism Bias

http://www.hm-treasury.gov.uk./media/D/B/GreenBook optimism bias.pdf

Pdf

Ipronet

1.4 PFI Contract Guidance

Standardisation of PFI Contracts Version 4

http://www.hm-treasury.gov.uk./media/3/5/pfi sopc4pu101 210307.pdf

Pdf

Ipronet

2 Department for Children, Schools and Families

2.1 Building Bulletins

http://www.teachernet.gov.uk/docbank/index.cfm?id=12521

BB101 - Ventilation of school buildings

BB100 - Design for Fire Safety in Schools

BB99 - Briefing Framework for Primary School Projects

BB98 - Briefing Framework for Secondary School Projects

BB96 - Meeting the educational needs of children and young people in hospital

BB94 - Inclusive School Design

BB93 - Acoustic Design of Schools

BB92 - Modern Foreign Languages Accommodation: A Design Guide

BB91 - Access for disabled People to School Buildings: Management and Design Guide

BB90 - Lighting Design for Schools

BB89 - Art Accommodation in Secondary Schools

BB88 - Fume Cupboards in Schools

BB87 - Guidelines for Environmental Design

Web Page

Word

Ipronet

494


BB86 - Music Accommodation in Secondary Schools

BB85 - School Grounds: A Guide to Good Practice

BB84 - School Boarding Accommodation: A Design Guide

BB83 - Schools' Environmental Assessment Method (SEAM)

BB82 - Area Guidelines for Schools - revised 2002

BB81 - Design and Technology Accommodation in Schools: A Design Guide

BB80 - Science Accommodation in Secondary Schools: A Design Guide

BB79 - Passive Solar Schools: A Design Guide

BB78 - Security Lighting Crime Prevention on Schools Series

BB77 - Designing for Pupils with Special Educational Needs: Special Schools

BB76 - Maintenance of Electrical Services Maintenance and Renewal in Educational Buildings Series

BB75 - Closed Circuit TV Surveillance Systems in Educational Buildings Crime Prevention in Schools Series

BB73 - A Guide to Energy Efficient Refurbishment Maintenance and Renewal in Educational Buildings Series

BB72 - Educational Design Initiatives in City Technology Colleges

BB71 - The Outdoor Classroom Second Edition

BB70 - Maintenance of Mechanical Services Maintenance and Renewal in Educational Buildings Series

BB69 - Crime Prevention in Schools: Specification, Installation and Maintenance of Intruder Alarm Systems

BB67 - Crime Prevention in Schools: Practical Guidance

2.2 DfES Schools Building and Design Unit “Key Design Guidance for Schools 2004”

http://www.teachernet.gov.uk/ doc/4063/Key%20Design%20Guidance%202004%20.doc

Web

Word

Ipronet

3 Scottish Government

3.1.1

3.1.2

3.1.3

Scottish Schools Standard PPP Contract Version 3

http://www.scotland.gov.uk/Topics/Government/Finance/18232/19138

Scottish School Standard PPP Contract Version 3 - Schedules


Scottish School Standard PPP Contract Version 3 – Addendum Sheet


Word

Ipronet

Word

Ipronet

Word

Ipronet

495


3.2

3.2.1

3.2.2

3.2.3

Schools Key Stage Reviews

Competitive Dialogue Procedure

Pre- ITPD

http://www.scotland.gov.uk/Topics/Government/Finance/18232/CD2

Pre-Preferred Bidder


Pre-Financial Close


Word

Ipronet

Word

Ipronet

Word

Ipronet

3.3 The Scottish Government – Infrastructure Investment – Publications


Web Page

Ipronet

3.4 The Private Finance Initiative and the Planning Process

Planning Advice Note PAN 55

http://www.scotland.gov.uk/Publications/1999/03/pan55

Web Page

Ipronet

3.5 Development Department

Planning and Building Standards Advice on Flooding August 2004


http://www.scotland.gov.uk/Publications/2004/08/19805/41609

Web Page

Ipronet

3.6 Designing Safer Places



Web Page

Pdf

Ipronet

3.7 Safely to School: A Study of Safer Routes to School in the Classroom

Transport Research Planning Group – Scottish Government 2003


Pdf

Ipronet

3.8 The Environmental Impact Assessment (Scotland) Regulations 1999

Circular 15/1999

http://www.scotland.gov.uk/library2/doc04/eia-00.htm

Web Page

Ipronet

3.9 Draft Children’s Services (Scotland) Bill Consultation

Getting it Right for Every Child


Pdf

Ipronet

496


3.10 National Care Standards

Early Education and Childcare up to the age of 16 (revised March 2005)

http://www.scotland.gov.uk/Resource/Doc/37432/0010250.pdf

Pdf

Ipronet

3.11 Environmental Protection Act 1990 Part IIA

Contaminated Land Statutory Guidance: Edition 2 (May 2006)

http://www.scotland.gov.uk/Resource/Doc/127825/0030600.pdf

pdf

4 Scottish Government and other Agencies

4.1

4.1.1

4.1.2

4.1.3

4.1.4

4.1.5

Sportscotland

http://www.sportscotland.org.uk/

School Playing Fields – Planning and Design Guidance January 2007

http://www.sportscotland.org.uk/ChannelNavigation/Resource+Library/Publications/School+Playing+Fields+Planning+and+Design+Guidance.htm

Design Guidance for Primary School Sports Facilities 2004

http://www.sportscotland.org.uk/ChannelNavigation/Resource+Library/Publications/Design+Guidance+for+Primary+School+Sports+Facilities.htm

Design Guidance for Secondary School Sports Facilities 2004

http://www.sportscotland.org.uk/ChannelNavigation/Resource+Library/Publications/Design+Guidance+for+Secondary+School+Sports+Facilities.htm

Design Approach: Notes for school and community use

References and Further Reading

Ipronet

HC pdf

Ipronet

Pdf

Ipronet

Pdf

Ipronet

Pdf

Ipronet

Pdf

Ipronet

4.2

4.2.1

4.2.2

The Royal Incorporation of Architects in Scotland

Quality Indicators in the Design of Schools (QIDS)

http://www.rias.org.uk/content/default.asp?page=s6 6 2

QIDS Guidance Notes

QIDS Framework Document

Ipronet

pdf

pdf

4.3 HMSO (Her Majesty’s Stationery Office)

http://www.opsi.gov.uk/

Web Page

Ipronet

4.3.1 The Cullen Report: The Public Inquiry into the Shootings at Dunblane Primary School Stationery Office 1996.

http://www.archive.official-documents.co.uk/document/scottish/dunblane/dunblane.htm

Web Page

Ipronet

497


4.3.2 The Government Response to the Cullen Report 1996

http://www.archive.official-documents.co.uk/document/scottish/dunreply/response.htm

Web page

Ipronet

4.4

4.4.1

OPSI (Office of Public Sector Information)

http://www.opsi.gov.uk/

The Construction (Design and Management) Regulations 2007

http://www.opsi.gov.uk/si/si2007/pdf/uksi 20070320 en.pdf

Pdf

Ipronet

4.4.2

4.4.2.1

Environmental Protection

The Landfill (Scotland) Regulations 2003

http://www.opsi.gov.uk/legislation/scotland/ssi2003/ssi 20030235 en.pdf

Environmental Protection

The Landfill (Scotland) Regulations 2003 (as amended)


Pdf

Ipronet

Pdf

Ipronet

4.4.3 Environmental Protection

Contaminated Land (Scotland) Regulations 2005


Pdf

Ipronet

4.4.4 Disability Discrimination Act 1995

http://www.opsi.gov.uk/acts/acts2005/pdf/ukpga 20050013 en.pdf

Pdf

Ipronet

4.4.5 Health and Safety

The Gas Safety (Installation and Use) Regulations 1998

http://www.opsi.gov.uk/si/si1998/19982451.htm

HTML

Ipronet

4.4.6 Health and Safety

The Control of Asbestos Regulations 2006

http://www.opsi.gov.uk/si/si2006/20062739.htm

HTML

Ipronet

4.4.7 Public Health

The Control of Noise (Codes of Practice for Construction and Open Sites) (Scotland) Order 2002


Pdf

Ipronet

4.5 Building Research Establishment Ltd Web link

498


BREEAM Schools

BREEAM Schools Manual

http://www.breeam.org/page.jsp?id=20

Pdf

Ipronet

4.6 Scottish Water

Scottish Water Byelaws 2004

http://www.scottishwater.co.uk/portal/page/portal/SWE PGP COMMERCIAL/SWE PGE COMMERCIAL/SWE PGE BUSBYELAWS

Web link

Ipronet

4.7

4.7.1

Scottish Qualifications Authority

Examination Timetable 2010 – Wednesday 28 April – Friday 11 June

http://www.sqa.org.uk/files ccc/NQExamTimetable2010.pdf

HC, pdf Ipronet Web link

5 Moray Council

Moray Council Schools Index

http://www.moray.gov.uk/moray standard/page 39857.html

Elgin Academy Web Page

http://www.moray.gov.uk/moray schools/page 747.html

Keith Primary Web Page

http://www.moray.gov.uk/moray schools/page 2211.html

Moray Schools Building for Learning PPP Project

http://www.moray.gov.uk/moray standard/page 47395.html

Web links

5.1 Financial Regulations – March 2009 HC, pdf Ipronet

5.2 Moray Council Standing Orders – 20 January 2010 HC, pdf Ipronet

5.3 Moray Development Plan – includes Moray Structure Plan and Moray Local

Plan 2000 –

http://www.moray.gov.uk/devplan2000/New/Dev plan/index.html

The Council has agreed, as from 1 September 2008, to start using the Emerging Moray Local Plan 2008 as a “material consideration” to be taken into account in the assessment of planning applications.

http://www.moray.gov.uk/moray standard/page 43376.html#Moray Local Plan

Web-link

Ipronet

5.4 Moray Structure Plan – April 2007 HC pdf Ipronet

5.5 Moray Council Personnel and Human Resources Policies

http://intranet.moray.gov.uk/PersonnelServices/a -z index.htm#PERSONNEL

Pdf list

Ipronet

499


Copies of documents available on request.

5.5.1 Equal Opportunity Policy HC Word Ipronet

5.5.2 Equal Pay Statement – September 2007 HC

Word

Ipronet

5.5.3 Disability Equality Scheme HC

Pdf

Ipronet

5.5.4 Gender Equality Scheme Hc

Pdf

Ipronet

5.5.5

5.5.6 Pensions

5.5.6.1 Employer Rates for next 3 years

5.5.6.2 FRS17 Assumptions from Actuary 2007-08

5.5.6.3 FRS17 Data from Actuary Non Teachers 2007-08

5.5.6.4 Pension Discretions Report

5.5.6.5 Pension Employee Contribution Rates from 1 April 2009

5.5.6.6 Pension Scheme 2009 Appendix

5.5.6.7 Pensions Annual Review 2007-08

5.5.6.8 Pensions Discretionary Report Appendix

5.5.6.9 Report on Pension Scheme 2009

5.5.6.10 Extract from Councils Audited Accounts 2007-08 re Pensions

Ipronet

Pdf

5.6 School Estate Strategy and Asset Management Plan – November 2004 Pdf Ipronet

5.7 Educational Services Improvement Plan 2008-2009 HC pdf Ipronet

5.8 Corporate Development Plan 2004 – 2007 HC pdf Ipronet

5.9 Living an Active Life

Physical Activity, Sport and Health Strategy for Moray 2007 – 2012

HC pdf Ipronet

5.10 Retention & Disposal Schedule for documents and records (paper and electronic). Version 14.4 October 2008

Pdf Ipronet

5.11 The Moray Council Administrative Scheme – 20 January 2010 HC pdf Ipronet

5.12 The Moray Council Scheme of Delegation – May 2007 Pdf

500


Ipronet

6. Schools Data

6.1 Catchment Areas – Maps - Elgin Academy and Keith Primary HC pdf Ipronet

6.2 School Term Dates – 2008-2011 HC pdf Ipronet

6.3 School Opening and Closing Times – 2008-2009 HC pdf Ipronet

6.4 School Roll – September 2007 HC pdf Ipronet

6.5 School Roll Forecast – 2007-2014 HC pdf Ipronet

6.6 Staff Roll 2006 HC pdf Ipronet

6.7 School Meal Survey – 2007 – 2008 HC pdf Ipronet

6.8 SPI – Occupancy – Primary and Secondary Schools 2006/2007 HC pdf Ipronet

6.9 Provision of Physical Education – Primary – May 2005 HC pdf Ipronet

6.10 Provision of Physical Education – Secondary – May 2005 HC pdf Ipronet

6.11 Community Use – School Prices 2008-2009 HC pdf Ipronet

6.12 Elgin Academy

6.12.1 Elgin Academy Handbook HC pdf Ipronet

6.13 Keith Primary School

6.13.1 Keith Primary School Handbook HC pdf Ipronet

6.13.2 Keith Nursery Handbook HC pdf Ipronet

7 Sites

7.1 School Location Plans

7.1.1 Elgin Academy HC pdf

Ipronet

7.1.2 Keith Primary HC pdf

Ipronet

7.2 Title Issues

7.2.1 Copy title deeds and search report – Elgin Academy HC

7.2.2 Copy title deeds and search report – Keith Primary HC

7.2.3 Existing Title Reports – 11.09.2003 HC

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7.2.4 Notice of Title – Elgin Academy HC

7.2.5 First Scottish Searching Services – Elgin Academy – Search Report to 15.07.2008

HC pdf Ipronet

7.2.6 First Scottish Searching Services – Keith Primary – Search Report to 15.07.2008

HC pdf

Ipronet

7.2.7 Elgin Academy - Inventory of Writs HC pdf

Ipronet

7.2.8 Keith Primary School - Inventory of Writs HC pdf

Ipronet

7.3 Planning

7.3.1 Elgin Academy Outline Planning Permission HC pdf

Ipronet

7.3.2 Keith Primary Outline Planning Permission HC pdf

Ipronet

7.4 Ground Investigation Surveys

7.4.1 Elgin Academy HC pdf

Ipronet

7.4.2 Keith Primary HC pdf

Ipronet

7.4.3 Keith Primary – Ground Investigation – August 2009 Ipronet pdf

7.4.4 Elgin Academy – Ground Investigation – August 2009 Ipronet pdf

7.5 Topographical Surveys

7.5.1 Moray Primary Schools HC

Ipronet

7.5.2 Moray Secondary Schools HC Ipronet

7.6 Contaminated Land Reports

7.6.1 Elgin Academy HC pdf Ipronet

7.6.2 Keith Primary HC pdf Ipronet

7.6.3 Recommendations – Potential Contamination HC pdf Ipronet

7.7 Asbestos Register

7.7.1 Elgin Academy Asbestos Register and Certificate HC pdf Ipronet

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7.7.2 Keith Primary – Junior – Asbestos Register and Certificate

Keith Primary – Junior – Drawings

HC pdf Ipronet

7.7.3 Keith Primary – Senior

Keith Primary – Senior – Drawings

HC pdf Ipronet

7.7.4 Elgin Academy Asbestos Report 06/05/2009 Pdf Ipronet

7.8 Elgin Academy Service Plans

7.8.1 Electricity – Scottish and Southern Power HC pdf Ipronet

7.8.2 Gas – Transco HC pdf Ipronet

7.8.3 Telecommunications – BT HC pdf Ipronet

7.8.4 Water Mains & Legend HC pdf Ipronet

7.8.5 Water – Drainage & Legend HC pdf Ipronet

7.9 Keith Primary Service Plans

7.9.1 Electricity – Scottish and Southern Power HC pdf Ipronet

7.9.2 Gas – Transco HC pdf Ipronet

7.9.3 Telecommunications – BT HC pdf Ipronet

7.9.4 Water Mains & Legend HC pdf Ipronet

7.9.5 Water – Drainage & Legend HC pdf Ipronet

7.9.6 Keith Grammar – Fibre Cable Excel

Ipronet

7.9.7 Keith Primary – Secondary – Fibre Cable Excel

Ipronet

7.10 Flood Assessments – Elgin Academy HC pdf Ipronet

7.10.1 1 in 5 year event HC pdf Ipronet




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7.11 Ecological Surveys – Bat HC pdf Ipronet

7.12 Maintenance Items –Unplanned

7.12.1 Elgin Academy 2003 – 2008 HC pdf Ipronet

7.12.2 Keith Primary 2003 – 2008 HC pdf Ipronet

7.13 Vandalism Costs

7.13.1 School Vandalism Costs 2000 – 2006 HC pdf Ipronet

7.13.2 School Vandalism Costs 2006 – 2007 HC pdf Ipronet

7.14 Insurance – losses within excess HC pdf Ipronet

7.15 Construction Drawings – Elgin Academy – List HC Ipronet

7.16 Construction Drawings – Keith Primary – List HC Ipronet

7.17 Construction Drawings – Keith Grammar – List HC Ipronet

7.18 Traffic Assessment – Elgin Excel pdf

Ipronet

7.19 Traffic Assessment - Keith Pdf

Ipronet

7.20 Traffic Assessment – Keith Primary - July 2009 Pdf

Ipronet

7.21 Archaeology – Elgin and Keith – September 2006 HC Pdf

Ipronet

8 Draft Technical Submission Ipronet

Schedule 5 – Accommodation Schedules

Schedule 6 – Room Data Sheets – Elgin Academy

Schedule 6 – Room Data Sheets – Keith Primary

Schedule 7a – List of Contractor Equipment – Elgin and Keith

Schedule 7b – List of Retained Equipment – Elgin and Keith

Schedule 7c – Transfer Equipment – Elgin and Keith

Ipronet

THE SCHEDULE TO THE AGREEMENT - Moray · Northwest Wing Bush House, Aldwych London WC2B 4EZ...

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Transcript of THE SCHEDULE TO THE AGREEMENT - Moray · Northwest Wing Bush House, Aldwych London WC2B 4EZ...