Deed of Variation

Building Agreement

Significance

Purchase Price now £8,400,000 with no provision for Cinema

publicly stated £11,000,000

Where has £2.6 million gone? Is this the combined cost to MCC/HB so far, and thus deleted from the purchase price? It might have been expected to increase with the loss of the Cinema

Library 700 Sq. m. and Leased back

871 Sq. m. and owned

The significance of the Lease back arrangement needs to be researched and understood

Housing and Affordable units deleted

Resid'l Units not less than 2252 Sq. m.

Why has the commercial value of the housing not been included? Could this be the reason for reduction in the purchase price. If so at whose behest has it been taken out and why?

New Clause providing for Termination of Agreement for Lease between HB and ASDA

No Provision

Although ASDA has been given greater visibility in this Deed. They may still be unhappy and reserve the right to get out when the design solutions are chosen

the definition of “ Property” to include the “Retained Buildings” defined as “the land and buildings edged red and forming part of Land registered at the Land registry

The definition specifically excludes the “Retained buildings”

There is considerable legal verbiage dedicated to this change the significance of which I don't understand. However reference to “EU procurement rules”, “best consideration” and “ mitigate its losses as a result of varying the definition” suggest that this change is vitally important and we should go to some lengths to find out why.

Terms of Lease altered to provide for George clothing 12½% and 12½% for non convenience goods including financial and professional services. Authorised use to include other areas of the development including the car park.

The original Agreement annexed the Lease as Schedule 2 which was is not available to us for comparison.

This could be an attempt to tie down the developer to more specific allocations than provide for originally

Para 3 of Schedule 3 has been deleted and replaced with a new para 3 which sets out the process and limitations of the Architectural Competition.

The essence of this paragraph and these clauses is to ensure commercial viability as the prime criteria which is defined as not “ adversely affecting ” the “ Purchase Price ” nor the “ Developers Priority Return ” ( not so far defined in any publicly available document)

Additional clauses to the “ Purchase Conditions ” requiring the satisfaction of Variation Conditions and the completion of another Deed of Variation to amend the definition of “ Property” to include the “Retained Buildings”

This relates to variation of the Lease which we do not have sight of

Could involve some delay with clarification with land Registry

New clause allowing the Compulsory Purchase proceedings to go onto 25 th July 2010

No Provision for extension

Planning Application defined as “any Application”

Planning Application defined as “initial Application”

Designed to give greater flexibility in the interpretation of the Agreement

HB can amend or withdraw any Planning Application and “ immediately ” submit an alternative subject to prior written consent of MCC

HB is not to amend or withdraw any Planning Application without consent

Again gives HB greater flexibility to duck and dive to avoid time wasting

New clause allowing HB to submit a revised Planning Application following the withdrawal of an Appeal subject to written consent of MCC

HB to prosecute the Appeal to their conclusion

Avoidance of the present situation

New clause giving HB the right to consult Planning Council “ at any time ” to obtain an opinion as to whether they are “ no longer ” likely to be successful at Appeal in which case HB can discontinue the Appeal

Consultation with Planning Council is limited to following a Planning Refusal

Gives HB the opportunity at any time say i.e at Statement of Case time to review their position and cut their losses much sooner while at the same time allowing them to submit a new Application

Planning Period is 18months from 3 rd October (3 rd April 2009)

Can be extended in the light of Appeal, etc. to 25 th July 2010

HB to submit to MCC Specification and development plans 22 weeks from 3 rd October

Appointment of Designers, design submissions, public consultation and final selection and submission t o MCC cabinet for approval by 3 rd March 2008

The design solutions will be “ considered ” by MCC, HB and ASDA with the latter appearing to have a strong influence if not outright veto

HB can make any variations additions, or subtractions to the submitted schemes whether or not such variations comply with the Design brief before assessing the commercial viability of the designs

Why bother to have a competition?

Design solutions that emerge from this process will be submitted “ to the public for consultation ” and a panel comprising MCC HB ASDA and others agreed between these three shall identify the design solution which will be binding on all parties

This is not a panel it is a cabal

Access to the Site to be in accordance with the highways drawing

No evidence of a highways drawing justifying this arrangement is known to exist

The highways solution has been agreed with the highways authority

The highways authority for the A40 is the Welsh Assembly and they definitely have not approved the highways solution