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100629 | Section 106 agreement | W1/08-0613
Submitted by Cornwall Council on Mon, 31/05/2010 - 23:00.
Via OCR please check original http://docs.planning.cornwall.gov.uk/rpp/showimage.asp?j=W1/08-0613&inde...
THE CORNWALL COUNCIL and ING RED UK (HAYLE HARBOUR) LIMITED AGREEMENT UNDER SECTION 106 OF THE TOWN AND COUNTRY PLANNING ACT 1990 (AS AMENDED) relating to Hayle Harbour, Hayle, Cornwall THIS VERSION IS FOR REFERENCE PURPOSES ONLY AND THE ORIGINAL SHOULD BE VIEWED IN THE CASE OF ANY DISPUTE Contents Clause Name Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Definitions and Interpretation ......................................................................... 3 Conditions Precedent .................................................................................... 13 Statutory Provisions and Interests Bound ....................................................... 13 Covenants ................................................................................................... 14 Affordable Housing ....................................................................................... 14 Sustainable Transport ................................................................................... 17 Highway Works ............................................................................................ 19 Parking ........................................................................................................ 20 Sustainable Transport Plan ........................................................................... 20 Green Space and Public Realm ...................................................................... 20 Ecology ....................................................................................................... 25 Education .................................................................................................... 29 Sustainability ............................................................................................... 29 Primary Health Facilities ............................................................................... 30 Business Centre ........................................................................................... 30 Design Framework and Detailed Design Codes ............................................... 30 pedestrian bridge ......................................................................................... 30 carnsew sluiceS............................................................................................ 31 SLUICING IN THE HARBOUR ........................................................................ 32 Accounting procedure ................................................................................... 32 Agreements and Declarations........................................................................ 32 Schedule Name 1 1 1 Affordable Housing ....................................................................................... 37 Part 1 Definitions ......................................................................................... 37 Part 2 Shared Ownership Lease..................................................................... 42 2 Ecological Management Plan ......................................................................... 43 3 3 3 Dispute Resolution Procedure ....................................................................... 49 Part 1 Appointment of the Expert .................................................................. 49 Part 2 Procedural Rules ................................................................................ 50 4 Carnsew Sluice ............................................................................................. 55 Page DATED 29th June 2010 PARTIES (1) THE CORNWALL COUNCIL, of County Hall, Treyew Road, Truro, Cornwall, TR1 3AY (the “Council”) (2) ING RED UK (HAYLE HARBOUR) LIMITED, a company with registered number 05083024 whose registered office is at 60 London Wall, London EC2M 5TQ (the “Developer”) BACKGROUND (A) The Developer is the freehold owner of the Site and has applied for planning permission for the Development to the Council. (B) The Council is a local planning authority (for the purposes of the 1990 Act) for the Council’s Area in which the Site is situated and through its predecessor Penwith District Council has resolved to grant planning permission for the Development subject to the Developer entering into the planning obligations contained in this Agreement. (C) The Council is also the local highway authority pursuant to the Highways Act 1980 for the County of Cornwall. (D) The Council is satisfied that the planning obligations entered into by the Developer pursuant to this Agreement are necessary for the implementation and use of the Development. OPERATIVE PROVISIONS 1 DEFINITIONS AND INTERPRETATION 1.1 In this Agreement: “1990 Act” means the Town and Country Planning Act 1990 (as amended). “Account” means a designated interest-bearing account with a registered bank or deposit holder in the name of the Council and all such interest is to be credited to the Account. “Accounting Procedure” means the procedure whereby the Developer accounts to the Council for certain payments as set out in Clause 20 “Affordable Housing” means Social Rented Units and Intermediate Units, provided to Qualifying Persons in Housing Need as defined in Schedule 1. “Affordable Housing Land” means land within the Site to be identified for the provision of Affordable Housing in any Affordable Housing Scheme. “Affordable Housing Sum” means a sum which represents 25% of the price paid for a Dwelling Disposed of in accordance with Clause 5.1.13less 25% of the Affordable Housing Sum Cost. “Affordable Housing Sum Cost” means the reasonable costs to the Developer associated with the marketing and Disposing of a Dwelling in accordance with Legal.13319579.7/SBEA/21151.00019 3 25.06.10 Clause 5.1.13. For the avoidance of doubt the term includes costs expended on incentives relating to such a Disposal; “Affordable Housing Units” means those units of residential floorspace within the Development which shall be provided as Affordable Housing in accordance with Clause 5 and Schedule 1. “Affordable Housing Provider” means such company or organisation registered and/or regulated by the Tenant Services Authority and/or the Homes and Communities Agency which the Developer may propose as provider of Affordable Housing at the Development and which may include Carrick Housing, Coastline Housing, Devon and Cornwall Housing Association, Guinness Hermitage, Ocean Housing, Sanctuary Shaftesbury, Sarsen Housing Association, Tamar Housing Society or Westcountry Housing. “Affordable Housing Scheme” means a scheme for the provision Affordable Housing and forming part of the Development in accordance with each relevant Reserved Matters Application which shall include unless otherwise agreed in writing with the Council: (a) the number, unit type, mix, and unit size of the Affordable Housing Units; (b) the name of the proposed Affordable Housing Provider, if known; (c) the identification of the Affordable Housing Land ; (d) arrangements for the transfer of the Affordable Housing Units or Affordable Housing Land if known; and (e) the Phasing Schedule . "Affordable Rent Tenancy" means an assured tenancy at a rent that does not exceed the indicative target rent levels of the Homes and Communities Agency for Affordable Housing let on such tenancy within the Council’s Area. “Agreement” means this agreement, “Application” means the application for outline planning permission in respect of the Development submitted to the former Penwith District Council on 24 April 2008 and given reference number 08-0613 P. “Appropriate Scheme” means (a) In the case of the Pattern Building and, if relevant, the Cart Shed Land, a scheme for the restoration of the Pattern Building (including, if relevant, the Cart Shed Land) for use for tourism purposes or as an office/business centre and (b) In the case of the Goonvean Engine a scheme for the erection of a display for the Goonvean Engine “Appropriate Standard” means in relation to the Affordable Housing Units built in accordance with the Planning Permission and Building Regulations (in effect at the date of the approval of plans for Building Regulation purposes) but enhanced to meet the requirements of the Code for Sustainable Homes level 4 or such lesser standards which may be required by the Homes and Communities Agency if sufficient Social Housing Grant is secured by the Affordable Housing Provider and in Legal.13319579.7/SBEA/21151.00019 4 25.06.10 relation to internal fitments of comparable standard to that offered as standard fit in the Market Housing Units on the Development but excluding any improvements or enhancements offered to prospective Market Housing Unit purchasers. “Approved Scheme” means an Appropriate Scheme for the Pattern Building (including, if relevant, the Cart Shed Land) or the Goonvean Engine (as the context admits) which is approved by the Developer. “BC Index” means the Building Cost Information Service All in Tender Price Index as published by BCIS (a trading division of the Royal Institution of Chartered Surveyors Business Services Ltd) or such similar index as may from time to time be published to replace such index; “Business Centre” means a building(s) or part(s) of a building(s) with total maximum area of 4,000 square metres which is developed within Use Class B1 to provide a range of small business spaces supported by suitable centralised support facilities within a managed environment and which is referred to in Clause 15. “Cart Shed Land” means that area of land adjacent to the Pattern Building shown coloured pink and hatched red on Plan 5 “CEMP” means the Construction Environmental Management Plan to be submitted by the Developer to the Council for each Development Area of the Development and in accordance with Clause 11.20. “Character Area” means the character areas of the Site as identified in the Hayle Harbour Development Framework and Design Codes and being Riviere Fields, Hilltop, North Quay, East Quay, South Quay/Foundry as shown on Plan 1. “Cockle Bank” means the existing sand bank forming part of the harbour within the Site as shown on Plan 1. “Code for Sustainable Homes” means the National standard for the sustainable design and construction of new homes with a range of minimum and enhanced performance standards for achieving low levels of energy and water use, and reduced carbon emissions “Commencement of the Development” is the carrying out of a material operation as defined in section 56(4) of the 1990 Act save that for the avoidance of doubt the carrying out of the following shall not constitute a material operation and (for the purposes of this Agreement) shall not (individually or collectively) amount to commencement of the Development: (a) ground investigation and site survey; (b) temporary fence and hoarding; (c) archaeological investigations; (d) environmental investigations; (e) decontamination and remediation; (f) site preparation; (g) site clearance including demolition of existing buildings and structures; Legal.13319579.7/SBEA/21151.00019 5 25.06.10 (h) the laying of sewers and services including diversion of existing services; (i) the undertaking of any works pursuant to the Detailed Planning Permission; (j) maintenance dredging works within Hayle harbour; and/or (k) maintenance and repairs to harbour walls including the South Breach. Quay and “Commence” or “Commenced” in relation to the Development shall be construed accordingly. “Commencement Date” means the date of Commencement of the Development or (as the case may be) the part of the Development in connection with which the expression is used. “Condition” means a condition imposed on the Planning Permission. “Council’s Area” means the Council’s administrative area. “Council’s Nominee” means the Harvey’s Foundry Trust or if the Harveys Foundry Trust no longer exists or can no longer lawfully undertake the relevant obligations contained in this Agreement pursuant to its objects such other appropriate body or organisation as the Council may nominate and the Developer may approve for the purposes of the provisions of Clause 10 where such other body or organisation includes in its objects the promotion of cultural and historic and education purposes within Hayle Town and the surrounding area. “Default Terms” means the transfer of Affordable Housing Land at Market Value (but subject to its designation as Affordable Housing Land including the provisions of Clause 5.1.10) with full title guarantee free from any encumbrances and other obligations and such Affordable Housing Land to have the benefit of full unrestricted rights of access over any relevant access road to be built to a standard capable of adoption by the Council in its capacity as highway authority from the boundary of the Affordable Housing Land to any relevant adopted highway (and vice versa) and full unrestricted rights for all services and conducting media and drains or sewers to be laid and constructed to such Affordable Housing Land to a standard capable of adoption by the respective service providers along with completed services to the boundary of the Affordable Housing Land. “Detailed Planning Permission” means planning permission granted by the Council or the Secretary of State for Communities and Local Government pursuant to the planning application made on behalf of Camborne Pool Redruth Regeneration Limited and Hayle Harbour Management Limited on 23 December 2008 and bearing reference 08-1721 P. “Development” means the redevelopment of Hayle harbour and land to north and north east to provide a mixed use development incorporating retail space, business space, residential, general industrial, storage and distribution, creation of marina and commercial harbour and associated access works. “Development Area(s)” means the Development Area (s) as determined in accordance with Condition 2. Legal.13319579.7/SBEA/21151.00019 6 25.06.10 “Development Area Energy Strategy” means the strategy to minimise carbon emissions from the Development to be submitted by the Developer in accordance with Clause 13. “Development Area Travel Plan” means a sustainable travel plan including a programme for implementation submitted in accordance with Clause 9.1 the objective of which is to reduce car movements on and off the Site and which shall include the measures identified in the Framework Travel Plan, and in particular:(a) The appointment of a travel plan co-ordinator. (b) The identification of an appropriate target for trip reduction and modal shift for that Development Area (c) The methods to be employed to meet these targets (d) The mechanisms for monitoring and review subject to the agreed timescale or timetable for monitoring within each Development Area Travel Plan (e) The mechanisms for reporting (f) The remedial strategy and mitigation measures to be applied as identified in the Framework Travel Plan (as the toolkit of travel planning measures) in the event that targets are not met (g) Implementation of the Development Area Travel Plan to an agreed timescale or timetable and its operation thereafter (h) Mechanisms to secure variations to the Development Area Travel Plan following monitoring and reviews “Disposed” means (unless specified otherwise) transfer of the freehold interest or the grant of a lease for a minimum period of 99 years commencing on the date of the grant of the lease and “Disposal” shall be construed accordingly. “Dispute Resolution Procedure” means the procedure set out in Schedule 3 “Dune Area” means the area shown edged blue on Figure C of Plan 3. “Dwellings” means the residential units to be provided pursuant to the Development and includes the Affordable Housing Units and “Dwelling” shall be construed accordingly. “East Quay” means that area within the Site shown hatched grey (and so labelled) on Plan 1. “EMP” means the Ecological Management Plan to be submitted in accordance with Clause 11.20. “Environmental Consultees” means representatives or consultants appointed by Natural England and the Environment Agency and the Royal Society for the Protection of Birds and Cornwall’s Living Environment Service (or their statutory successors). “Expert” has the meaning assigned in Schedule 3. Legal.13319579.7/SBEA/21151.00019 7 25.06.10 “Fishermen’s Harbour” means the new fishermen’s harbour facilities on North Quay to be provided pursuant to the Development. “Foundry Yard Car Park” means the area shown hatched dark green (and so labelled) on Plan 1. “Foundry Junction” means the junction of the B3301 with the B3302 in Hayle the location of which is indicated on Plan 1. “Framework Travel Plan” means the framework travel plan submitted in support of the Application with amendments as requested by the Council the final version of which is dated August 2009 and is annexed to this Agreement. “Goonvean Engine” means the historic engine structure known as the Goonvean Engine “Goonvean Engine Site” means the site for the display of the Goonvean Engine as identified by the Developer pursuant to Clause 10 “Harbour Arm” means the harbour arm that will extend from the end of North Quay into the harbour and will enclose the Fishermen’s Harbour “Harbour Revision Order” means any order(s) made pursuant to the Hayle Harbour Act 1989 necessary to procure the delivery of the Pedestrian Bridge “Harvey Towans Car Park” means the existing car park shown hatched yellow on Plan 1. “Hayle Harbour Development Framework and Design Codes” means the document appended to this Agreement so titled and dated September 2009. “Hayle Town” means the area shown edged black on Plan 2 “Hilltop” means that area of the Site shown hatched orange (and so labelled) on Plan 1. “Hilltop Car Park” means the car park/boat store to be constructed as part of the development and shown edged red on Plan 4 “Indexation” means the adjustment of the relevant financial sum referred to in this Agreement from the date of this Agreement to the date of payment by applying the following formula: A x B / C = D where: A = the sum specified in this Agreement in pounds sterling B = the figure shown in the BC Index for the latest period prior to the date on which the sum concerned is to be paid. C = the figure shown in the BC Index for the latest period prior to the date of this Agreement D = the recalculated sum in pounds sterling applying under this Agreement Provided that if the BC Index becomes no longer maintained the said formula shall be applied mutatis mutandis (so far as concerns periods after it ceases to be so Legal.13319579.7/SBEA/21151.00019 8 25.06.10 maintained) by reference to such other similar publication or index as may be agreed from time to time by the parties to this Agreement “Intermediate Units” means “Intermediate affordable housing” as defined in Planning Policy Statement 3 (2006) or any replacement Government guidance or legislation and includes but is not limited to, intermediate rented, discounted sale, shared equity and shared ownership. “Marina” means the marina proposed as part of the Development and referred to in the Application. “Market Housing Units” means those Dwellings to be made available for sale or leased on the open market and excludes the Affordable Housing Units and “Market Housing Unit” shall be construed accordingly. “Market Value” means the estimated amount for which the relevant land should exchange on the date of valuation (being the date of agreement of the Market Value by the parties or the date of determination by an Expert) between a willing seller and a willing buyer in an arm’s length transaction after proper marketing wherein the parties had acted knowledgeably prudently and without compulsion (and for the avoidance of doubt this definition shall not apply to the term “Open Market Value” as defined in Schedule 1). “Necessary Consents” means all consents, permissions, easements, licences and rights obtainable from the Council or any other third party, necessary and sufficient to procure the delivery and completion of the Pedestrian Bridge. “Necessary Consents Open Market Value” means the estimated value for obtaining any Necessary Consent: (a) based on existing use value, (b) on the date of valuation between a willing buyer and a willing seller in an arm's length transaction, (c) after proper marketing wherein the parties had acted knowledgeably, prudently and without compulsion, (d) in the absence of the Planning Permission and/or any other permission for similar development of the Site, and (e) disregarding any value attributable to any share of development value associated with the Planning Permission (for the avoidance of doubt, for the purposes of this Agreement, ‘Necessary Consents Open Market Value’ should disregard (amongst other things) any value or uplift which is attributable to what is known as ransom value), assuming that the buyer is granted all rights in that consent necessary for the provision of the relevant matters the subject of that consent. “North Quay” means that area within the Site shown hatched purple (and so labelled) on Plan 1. “Occupation” means the physical use of land or buildings within the Development but not including occupation of any such land or buildings for the purposes of construction or fitting out or occupation of a marketing or display suite or facility or Legal.13319579.7/SBEA/21151.00019 9 25.06.10 occupation in relation to security operations and “Occupy” “Occupants” “Occupying” and “Occupied” shall be construed accordingly. “Onerous Terms” means any term or contractual provision of a consent sought and/or completed for the provision of the Pedestrian Bridge which: (a) provides for consideration to be paid for entering into the consent, and that consideration is in excess of the Necessary Consents Open Market Value by more than a de minimis or non-material amount (as determined pursuant to clause 21.9(Dispute Resolution), or (b) purports to have Termination Rights to the party consenting with the Developer, and those rights have been exercised. “Parameter Plan” means the plan and schedule appended to this Agreement and so marked. “Pattern Building” means the former pattern shop associated with Harvey’s Foundry the location of which is shown shaded pink and edged red on Plan 5. “Pedestrian Bridge” means a pedestrian bridge to be provided from South Quay to East Quay or from South Quay to Penpol Terrace “Pedestrian Bridge Sum” means the estimated costs of the provision of the Pedestrian Bridge by the Council including the costs of acquiring any necessary rights to construct the Pedestrian Bridge and any reasonable legal costs associated with such acquisition “Permitted Closures” means temporary closure of any Public Access Area or any part thereof in the following circumstances: (a) with the prior approval of the Council where the Council is satisfied that such temporary closure is necessary in the interests of public safety or is required for the purposes of essential maintenance, repair, cleansing, renewal or resurfacing works within the Public Access Area in question or for any other reason or proper purpose; (b) with the prior approval of the Council where the Council is satisfied that such temporary closure is necessary for the purposes of carrying out works for construction (including development or redevelopment or for the placing or replacing of underground services) on the Site or adjoining land; (c) temporary closure in the case of emergency where such closure is necessary in the interests of public safety or otherwise for reasons of public safety; (d) closure for a maximum of one day per year to assert rights or proprietorship preventing public rights from coming into being by means of prescription or other process of law; and (e) where permitted or required by the Hayle Harbour Master pursuant to by any Hayle Harbour Byelaw from time to time in force. “Phase A Works” means the removal of existing materials from the top of the existing Carnsew Sluice down to the existing ground level as more particularly described at Schedule 4 to this Agreement Legal.13319579.7/SBEA/21151.00019 10 25.06.10 “Phase B Works” means the exposure of the existing timber mitre gates that are located in the second Carnsew Sluice as more particularly described at Schedule 4 to this Agreement “Phasing Schedule” means a schedule to be submitted with any Affordable Housing Scheme pursuant to Clauses 5.1.2 and 5.1.3 “Photographic Record” means the photographic record (reference number 007838 Hayle Harbour Job No. 024435 June 2010 Rev 02) of the harbour walls within the Site contained within the Quay Walls Survey Report as appended to this Agreement. “Plan 1” means the plan annexed to this Agreement and so marked. “Plan 2” means the plan annexed to this Agreement and so marked. “Plan 3” means the plan annexed to this Agreement and so marked. “Plan 4” means the plan annexed to this Agreement and so marked. “Plan 5” means the Plan annexed to this Agreement and so marked. “Planning Permission” means planning permission granted by the Council in respect of the Application “Practical Completion” means the date of issue of a Certification of Practical Completion pursuant to a building contract or contracts in respect of the relevant part of the Development and “Practically Complete” and “Practically Completed” shall be construed accordingly. “Public Access Area” means any of the areas identified as such pursuant to Clause 10.1. “Quay Walls Survey Report” means the survey of the harbour walls within the Site dated June 2010 and annexed to this Agreement. “Renewables Business Park” means the area of Class B1, B2, B8 or higher education use to be constructed upon North Quay pursuant to the Planning Permission. “Reserved Matters” means those matters to be submitted for approval by the Council pursuant to Condition 1 and “Reserved Matters Application” shall be construed accordingly. “Reserved Matters Area” means that part of the Development which is included in any Reserved Matters Application. “Riviere Fields” means that part of the Site hatched light green (and so labelled) on Plan 1. “Riviere Dune Grassland Restoration Area” means the area for dune grassland habitat restoration and/or creation in accordance with Clause 11.4 and which is shown edged red on Figure A of Plan 3. “Sea Buckthorn Area” means the area for the management of sea buckthorn in accordance with Clause 11.6 as shown edged purple on Figure B of Plan 3. Legal.13319579.7/SBEA/21151.00019 11 25.06.10 “Site” means the site of the Development as shown shaded blue on the Site Plan. “Site Plan” means the plan so marked and annexed to this Agreement. “Sluicing Report” means a report to be undertaken by the Developer in consultation with the Council which shall detail: (a) the delivery proposals and options for the reinstatement of sluicing in Hayle Harbour including the potential timescales and phasing for the reinstatement (“the Sluicing Works”) and (b) whether any funding, subsidy or grant is available to the Council or to the Developer which could be utilised to carry out the Sluicing Works “Social Rented Units” means Affordable Housing Units let on an Affordable Rent Tenancy and as defined in Planning Policy Statement 3 (2006) (or any replacement Government guidance or legislation) as “Social rented housing” “South Quay” means the area of the Site shown hatched brown (and so labelled) on Plan 1. “South Quay Breach” means the existing area of collapse of the South Quay harbour walls as shown on pages 91 to 94 of the Photographic Record. “Spalding Report” means the report by Spalding Associates and Aquatonics Ltd dated 8 December 2008 entitled “Proposals for Habitat Compensation for Hayle Harbour Development Scheme” and annexed to this Agreement. “St Erth Park and Ride” means the park and ride facility proposed to be constructed by the Council to the south of St Erth Railway Station and adjoining Treloweth Lane. “Station Access Land” means the land owned by the Developer and shown hatched dark blue (and so labelled) on Plan 1. “Strategic Housing Plan” means the Developer’s proposals for delivery of Affordable Housing Units across the whole Site to include the allocation of units by Character Area and the principles and strategy for delivery. “Termination Rights” means any term or contractual provision of a consent sought and or completed for the provision of the Pedestrian Bridge which purports to reserve to the party consenting with the Developer ‘step-in’ rights, or a ‘stop notice’ request, or other form of contractual termination or revocation, with the effect that the consenting party could permanently prevent the Developer from exercising or continuing to exercise the rights conferred by that consent. “Triangular Spit” means that part of the Site shown hatched light blue (and so labelled) on Plan 1. “Units Discounted for Sale” means Affordable Housing Units to be sold at a discount in accordance with Clause 5 and Schedule 1. “Wave Hub” means the wave power electricity generation station to be located at the date of this Agreement offshore from St. Ives Head, Cornwall Legal.13319579.7/SBEA/21151.00019 12 25.06.10 “Working Day” means any day (apart from Saturday, Sunday, Christmas Day, Good Friday and any statutory bank holiday) on which clearing banks in England are open for the transaction of ordinary business. 1.2 References to any Recital Clause Schedule Paragraph (or any part of them) shall (unless the context otherwise requires) be references to a recital clause schedule or paragraph (or any part of any of them) of this Agreement. 1.3 References to any Plan are references to a plan attached to this Agreement. 1.4 References to the masculine gender shall include the feminine gender and vice versa. 1.5 Unless the context otherwise requires references to the singular shall include the plural and vice versa. 1.6 Headings are for ease of reference only and are not intended to be construed as part of this Agreement. 1.7 References to the Developer include and (once the Developer has parted with an interest in the Application Site or any part of it constitute) references to the Developer’s successors in title to the Site or any part of it. 1.8 References to the Council include references to any statutory successor to the Council as local planning authority and as highway authority. 1.9 References to the 1990 Act and to any section of the Act include any re-enactment of it unless the context otherwise requires. 1.10 Nothing in this Agreement shall unlawfully fetter or restrict the exercise by the Council as local planning authority or as highway authority of its rights discretions duties powers or obligations under any statute orders regulations and byelaws. 1.11 No provision of this Agreement shall be interpreted so as unlawfully to fetter the Council in the exercise of its statutory duties. 1.12 No waiver whether express or implied by the Council of any breach or default in performing or observing any of the covenants terms or conditions of this Agreement shall unless evident on the facts constitute a continuing waiver. 2 CONDITIONS PRECEDENT Save for the provisions of Clauses 1, 3, 10.6 (together with the default provisions contained in Clause 10.7 to 10.11 inclusive), 10.12 to 10.17 inclusive and 21 which shall together with this Clause come into effect on the date of this Agreement the provisions of this Agreement shall be conditional upon the grant of the Planning Permission and Commencement of the Development or such later date as the provisions may prescribe 3 STATUTORY PROVISIONS AND INTERESTS BOUND 3.1 This Agreement is made pursuant to section 106 of the 1990 Act and all other powers so enabling the parties hereto to the intent that the obligations on the part of the Developer shall be binding upon its interests in the Site and those of its successors in title to the Site. Legal.13319579.7/SBEA/21151.00019 13 25.06.10 3.2 The obligations on the part of the Developer as set out in this Agreement shall be enforceable by the Council. 4 COVENANTS 4.1 The Developer hereby covenants with the Council to observe and perform the obligations imposed upon it as contained within this Agreement. 4.2 The Council hereby covenants with the Developer to observe and perform the obligations imposed upon it as contained within this Agreement and that where any sums are paid to the Council under the terms of this Agreement such sums shall not be expended otherwise than for the purpose identified in this Agreement. 5 AFFORDABLE HOUSING 5.1 The Developer hereby covenants with the Council that 5.1.1 prior to or with the first Reserved Matters Application which includes Affordable Housing Units it will submit to the Council for its approval the Strategic Housing Plan; 5.1.2 prior to or with any Reserved Matters Application which includes Affordable Housing Units it will submit to the Council for its approval an Affordable Housing Scheme for that Reserved Matters Area; 5.1.3 if any Affordable Housing Scheme fails to conform with the Strategic Housing Plan the Developer shall also submit with the Affordable Housing Scheme an explanation as to the lack of conformity and where necessary shall submit a revised Strategic Housing Plan to the Council for its approval; 5.1.4 upon submission of any Affordable Housing Scheme it will submit to the Council for its approval a Phasing Schedule which identifies the Affordable Housing Units generally in accordance with that Affordable Housing Scheme and complies with Clause 5.1.3. 5.1.5 the Developer shall ensure that all Affordable Housing Units in any Reserved Matters Area are provided in accordance with the relevant approved Affordable Housing Scheme and in accordance with the following trigger points for the Development as a whole: 5.1.6 No more than the following number of Market Housing Units To be occupied until the following number of Affordable Housing Units are completed Total Dwellings Percentage of Affordable Housing Units per total 208 units (24.4%) 42 250 17% 374 units (43.8%) 76 450 17% 540 units (63.2%) 110 650 17% 623 units (73.0%) 127 750 17% 706 units (82.7%) 144 850 17% Notwithstanding Clause 5.1.3, phases of the Development which exceed 850 Dwellings in total shall be required to include Affordable Housing Units so that the Legal.13319579.7/SBEA/21151.00019 14 25.06.10 overall provision of Affordable Housing Units is no less than 17% of the total of number of Dwellings until a total of 175 Affordable Housing Units has been provided. Thereafter no additional Affordable Housing Units will be required. 5.1.7 5.1.8 5.1.9 In the event that sufficient Social Housing Grant is secured, the tenure split for the Affordable Housing Scheme shall, unless the Council otherwise agrees, comprise the following:- Tenure % of total units 1 bed flats 2 bed flats/houses 3/4 bed flats/house s(up to 50% of these can be flats).** Social Rented Units No less than 9% of total Dwellings 5% 75% 20% Intermediate Units No less than 8% of total Dwellings 20% 70% 10% In the event that no or insufficient Social Housing Grant is secured, the tenure split for the Affordable Housing Scheme shall, unless the Council otherwise agrees comprise the following:Tenure % of total units 1 bed flats 2 bed flats/houses 3/4 bed flats/house s (up to 50% of these can be flats).** Social Rented Units No less than 4.25% of total Dwellings 5% 75% 20% Intermediate Units No less than 12.75% of total Dwellings 20% 70% 10% The Developer shall use reasonable endeavours to obtain sufficient Social Housing Grant to achieve the Affordable Housing mix set out in Clause 5.1.7 and before submitting any application for Social Housing Grant the Developer shall submit such application to the Council for its approval for the purpose of identifying the sufficiency of funding as referred to in Clauses 5.1.7 and the following provisions shall then apply: (a) The Council shall respond to such submission by the Developer within 10 Working Days and if the Council shall fail to respond within such period then the Developer’s Social Housing Grant application and its identification of sufficiency for the purposes of Clauses 5.1.7 shall be deemed to have been approved by the Council; and Legal.13319579.7/SBEA/21151.00019 15 25.06.10 (b) In the event that the Council fails to approve the Developer’s submission then the Developer may refer the matter for Expert determination pursuant to Clause 21.9 and the period for determination by the Expert pursuant to paragraph 6 of Part 2 of Schedule 3 shall be 10 Working Days from his or her appointment. 5.1.10 Subject to the provisions of Clause 5.1.13 the Developer shall not develop or permit to be developed any Affordable Housing Land identified in any Affordable Housing Scheme other than for the purposes of the provision of Affordable Housing. 5.1.11 If the Developer serves notice upon the Council that it has despite using reasonable endeavours been unable to reach agreement with an Affordable Housing Provider to either acquire the Affordable Housing Units or the Affordable Housing Land identified for that Reserved Matters Area (such notice to state the terms of offers made to Affordable Housing Providers) the Developer may (where the Default Terms have been offered to Affordable Housing Providers) or shall (where terms other than the Default Terms have been offered to Affordable Housing Providers) with any such notice offer (by notice in writing) the relevant Affordable Housing Land to the Council on the Default Terms or such other terms as the parties may agree. 5.1.12 Following the service of any offer which the Developer is obliged to make to Council pursuant to Clause 5.1.11 the Developer and the Council shall reasonable endeavours to reach agreement and complete the transfer of Affordable Housing Land within a period of 3 months from the date of Developer’s offer served pursuant to Clause 5.1.11. 5.1.13 If: the use the the (a) the Developer is not obliged to and does not make an offer to the Council pursuant to Clause 5.1.11; or (b) if the Council declines any offer made pursuant to Clause 5.1.11; or (c) if the Council accepts any such offer but the transfer of the Affordable Housing Land is not completed within the said 3 month period the Developer may develop the sites identified for Affordable Housing or Affordable Housing Land on that Reserved Matters Area for Units Discounted for Sale PROVIDED THAT (d) Units Discounted for Sale constructed on such sites or land will be marketed to Qualifying Persons for a period commencing on Commencement of construction of such Unit until one month following completion of such Unit (which procedure shall for the avoidance of doubt be in lieu of the procedure set out in Paragraph 2 of Schedule 1; (e) In the event that any such Unit Discounted for Sale is Disposed of to a Qualifying Person then the provisions of Paragraphs 2 and 4 of Schedule 1 shall thereafter apply to such Unit Discounted for Sale; (f) In the event that any such Units marketed in accordance with (d) of this Clause remain unsold after the said period referred to in Clause 5.1.13 (d) then the Developer may Dispose of such Units to persons other than Qualifying Persons without any constraint on the price to be paid for such Unit and the Developer shall within 20 Working Days of such Disposal serve notice on the Council stating the date of Disposal and the price paid Legal.13319579.7/SBEA/21151.00019 16 25.06.10 for such Unit and shall with such notice make payment to the Council of the Affordable Housing Sum and stating the Affordable Housing Sum Cost and the calculation of such sum. If the Council does not agree the Affordable Housing Sum Cost it shall within 20 Working Days serve notice on the Developer of what it considers to be the appropriate Affordable Housing Sum Cost. The Developer shall within 20 Working Days of receipt of such notice either pay the difference between the Council and Developer’s calculations of the Affordable Housing Sum Cost to the Council or refer the matter to an Expert for determination in accordance with Clause 21.9. Any Units Discounted for Sale sold in accordance with Clause 5.1.13 (f) shall upon Disposal cease to be Affordable Housing Units and shall not be required to conform with the restrictions on ownership and occupation referred to in this Agreement. (g) Any Units Discounted for Sale sold in accordance with Clause 5.1.13 (f) shall upon Disposal cease to be Affordable Housing Units and shall not be required to conform with the restrictions on ownership and occupation referred to in this Agreement. (h) In any event where this Clause 5.1.13 applies then for the purposes of Clause 5.1 the Affordable Housing Units for that Reserved Matters Area (and in respect of the overall thresholds referred to in Clause 5.1.3) shall be deemed to have been delivered. 5.2 The Developer may provide not more than 8.5% of the Affordable Housing Units as Units Discounted for Sale save where Clause 5.1.10 applies 5.3 All Affordable Housing Units will be to a constructed to the Appropriate Standard. 5.4 Without prejudice to the generality of the Affordable Housing Scheme the Council agrees with the Developer that the Developer may elect to provide no Affordable Housing Units or Affordable Housing Land on Hilltop. 5.5 The Council and the Developer covenant with each other to undertake their respective obligations for the provision of Affordable Housing as set out in Schedule 1. 5.6 The Council covenants with the Developer that it shall not expend any sums paid by the Developer pursuant to Clause 5.1.13 (f) save for the purposes of providing Affordable Housing in the Primary Area or the Secondary Area (as those terms are defined in Schedule 1) and in the event that such sums or any part of them are unexpended by the fifth anniversary of payment then the Council will repay any such unexpended sum to the Developer (meaning in this case the party who made payment) upon the fifth anniversary of payment. 6 SUSTAINABLE TRANSPORT 6.1 The Developer will pay the following contributions (subject to Indexation) to the Council as follows: 6.1.1 £15,000 for improvements to walking routes within Hayle Town prior to the Occupation of any building permitted by the Planning Permission; 6.1.2 £20,000 for improvements to cycle infrastructure within Hayle Town prior to the Occupation of any building permitted by the Planning Permission; and Legal.13319579.7/SBEA/21151.00019 17 25.06.10 6.1.3 £40,000 for improved platform accessibility and Station facilities at Hayle Railway Station prior to the Occupation of any building permitted by the Planning Permission. 6.2 The Developer will pay the following contributions to the Council prior to the Occupation of the 51st Dwelling or 1000 square metres of non-residential gross floor space (whichever occurs first) or at some date or threshold of Development which may be proposed by the Council (which shall be no earlier than the Occupation of the 51st Dwelling or 1000 square metres of non-residential gross floor space whichever occurs first): 6.2.1 £25,000 for bus stop infrastructure improvements in Hayle Town; and 6.2.2 £50,000 for St Erth Park and Ride or towards other sustainable transport measures which the Council considers (in consultation with the Developer) to be reasonably related to the Development and which would achieve the same or similar purpose 6.3 The Developer will pay to the Council the reasonable costs of further transport improvements up to and not exceeding £50,000 as may be identified in the surveys pursuant to the Development Area Travel Plans following Occupation of 95% of the Development such payment or payments to be paid following receipt of a notice in writing from the Council identifying such further improvements and their estimated costs. 6.4 The Developer will pay to the Council a contribution to a “Hopper” bus service (or towards other sustainable transport measures which the Council considers (in consultation with the Developer) to be reasonably related to the Development and which would achieve the same or similar purpose) of £600,000 by way of five annual instalments of £120,000 commencing either: 6.4.1 On the second anniversary of the Occupation of the first Dwelling; or 6.4.2 Within 20 Working Days of the receipt of a notice from the Council requiring the payment of such sum, which notice shall not be served by the Council before: (a) first Occupation of Dwellings on Hilltop or Riviere Fields; or (b) the Practical Completion and opening to all traffic of the proposed road and junctions from North Quay to Riviere Fields and on to Phillack, whichever is the earlier event. 6.5 Following payment of the first instalment of the above the Council will within 20 Working Days of the end of each calendar year submit to the Developer details of the expenditure and usage of the sums referred to in Clause 6.4 6.6 The Developer will reserve the Station Access Land and will not for a period of fifteen years from the date the Development is Commenced develop or permit the Station Access Land to be developed save in accordance with Clause 6.7. 6.7 If the Developer receives notice from the Council, such notice to be served within the fifteen year period referred to in Clause 6.6 and accompanied by evidence of a scheme and scheme funding for a new access to Hayle Station (which may include landscape and/or public open space proposals) on the Station Access Land, then upon approval of such scheme by the Developer it will transfer the Station Access Land (or such part of it that shall be required for the said scheme) to the Council at nil consideration. Legal.13319579.7/SBEA/21151.00019 18 25.06.10 6.8 The Council covenants with the Developer that if any of the sums paid by the Developer as referred to in this Clause 6 or any part of them shall remain unexpended by the fifth anniversary of each respective payment then the Council will repay any such unexpended sum to the Developer (meaning in this case the party who made payment) upon the fifth anniversary of the relevant payment and each of them. 7 HIGHWAY WORKS Footway to Phillack 7.1 The Developer shall not open or permit to be opened the proposed road from Riviere Fields through to Phillack to any traffic (except emergency vehicles as referred to in Condition 29) until a footway giving access from Riviere Fields to the junction at Churchtown Road/Phillack has been Practically Completed and is available for public use. Foundry Junction 7.2 The Developer will monitor background traffic flows and traffic flows which arise from the Development at the Foundry Junction in accordance with a methodology agreed with the Council. 7.3 Upon the count of motor vehicles arriving at and departing from the Development exceeding 500 trips in any hour the Developer will undertake a review of traffic at the Foundry Junction and submit details of such review to the Council such review to be undertaken within any timeframe set by the methodology proposed by the Developer and agreed by the Council. 7.4 If following any review referred to in Clause 7.3 the Council reasonably decides that the impact on the Foundry Junction of traffic arising from the Development is causing an unacceptable impact (in terms of safety or congestion or impact on amenity of residents of Hayle) then the Council may propose to the Developer for its approval restrictions on the Occupation of such parts of the Development which have not at the review date been commenced and mitigation measures to address such unacceptable impact in lieu of restrictions on Occupation. 7.5 If the Developer so elects it will pay to the Council (in lieu of any proposed restrictions on the Occupation of such parts of the Development which have not at the review date been commenced) either: 7.5.1 the reasonable cost of implementation of such agreed mitigation measures (such sum not to exceed £75,000 subject to Indexation);or 7.5.2 such reasonable contribution towards the implementation of a wider strategic traffic scheme which includes directly or indirectly objectives which will reduce unacceptable impact at the Foundry Junction such reasonable contribution to be proportionate to the impact of traffic arising from the Development on the Foundry Junction and shall not in any event exceed £70,000 subject to Indexation; and upon payment of such sum the further Occupation of the Development will not be restricted pursuant to the provisions of Clause 7.4. Repayment 7.6 The Council covenants with the Developer that if the sum paid by the Developer for mitigation measures at the Foundry Junction or any part of it shall remain Legal.13319579.7/SBEA/21151.00019 19 25.06.10 unexpended by the fifth anniversary of such payment then the Council will repay any such unexpended sum to the Developer (meaning in this case the party who made payment) upon the fifth anniversary of such payment. 8 PARKING 8.1 Until the use of car parking spaces is permitted in accordance with the provisions of this Clause the Hilltop Car Park shall be restricted to use as a construction compound and boat storage area. The car parking spaces shall be phased in as follows: 8.1.1 100 spaces upon the removal of the Harvey Towans Car Park; 8.1.2 25 spaces on completion of the Renewables Business Park; 8.1.3 20 spaces on first Occupation of Dwellings on Hilltop; 8.1.4 100 spaces on first Occupation of Dwellings on North Quay; 8.1.5 180 spaces on completion of the Marina or if the Marina is constructed in phases upon completion of the first phase of the Marina; and 8.1.6 31 spaces on first Occupation of commercial/recreational space on North Quay (excluding residential use). 8.2 The management of any public car parking provided within the Development pursuant to the Planning Permission shall be undertaken so as not to conflict with any Council planning policy in force at the relevant time which has as its objective the management and use of public car parking within Hayle Town. 8.3 Upon or prior to the submission of Reserved Matters for any development on South Quay the Developer will submit to the Council a re-assessment of the parking need associated with the South Quay development. This re-assessment will be based on reasonable commercial need but in the context of a requirement upon the Developer to use reasonable endeavours to keep parking for the Development to a level which is consistent with current policy and practice and compatible with public transport provision in Hayle Town. 9 SUSTAINABLE TRANSPORT PLAN 9.1 Upon submission of Reserved Matters for any Development Area the Developer will submit for approval by the Council in consultation with the Highways Agency a Development Area Travel Plan for that Development Area including construction of it in accordance with the Framework Travel Plan. 9.2 No Development shall take place in that Development Area until such time as the Development Area Travel Plan has been approved by the Council and each Development Area shall be constructed and operated in accordance with the relevant Development Area Travel Plan. 10 GREEN SPACE AND PUBLIC REALM Submission of Plans/Details 10.1 Prior to Commencement of each Development Area, the Developer shall submit to the Council for approval details of the public realm/green space (if any) as a Public Access Area or Areas to be provided within that Development Area including details Legal.13319579.7/SBEA/21151.00019 20 25.06.10 of the equipment/facilities (if any) to be provided within such Development Area. Such details shall include triggers and thresholds of development to secure delivery of the Public Access Area or Areas within that Development Area. For the avoidance of doubt the Public Access Area or Areas shall exclude private gardens or spaces where it is intended that use is restricted to residents or employees of premises within the Development. 10.2 No Development shall take place in that Development Area until such time as the details submitted pursuant to Clause 10.1 have been approved by the Council and each Development Area shall be constructed and operated in accordance with the details approved pursuant to Clause 10.1. Physical Works 10.3 The Developer shall not Occupy or permit to be Occupied more than 100 Dwellings or 1,000 square metres of any non-residential building or buildings constructed pursuant to the Development on North Quay and/or Hilltop and/or Riviere Fields until the repairs to the harbour walls of North Quay and East Quay as permitted by the Detailed Planning Permission and any listed building consent which may be required have been completed as certified by the employer’s agent pursuant to the contract for repairs. 10.4 Subject to the provisions of Clause 10.5 the Developer shall not Occupy or permit to be Occupied more than 350 Dwellings on North Quay, Hilltop or Riviere Fields collectively until it has undertaken and completed works to repair the South Quay Breach in accordance with the requirements of any necessary Listed Building Consent and as certified by the employer’s agent pursuant to the contract for repairs PROVIDED ALWAYS THAT not more than 150 Dwellings on Riviere Fields may be Occupied until this obligation has been complied with. 10.5 The Developer shall not Occupy or permit to be Occupied any building or buildings constructed pursuant to the Development on South Quay or any part of it until the repairs to the harbour walls of South Quay as set out in the Quay Walls Survey Report (which for the avoidance of doubt includes the South Quay Breach) have been completed as certified by the employer’s agent pursuant to the contract for repairs. 10.6 Until completion of repairs to the harbour walls referred to in Clauses 10.3 and 10.5 the Developer shall maintain them in the condition as shown on the Photographic Record and will take all reasonable steps to prevent further deterioration. 10.7 In the event of breach of the obligation set out in Clause 10.6 the Council may execute any repairs or other works to maintain the condition of the harbour walls or any part of them by its own employees or contractors and recover its reasonable and proper costs as reasonably and properly certified by the Head of Planning and Regeneration. 10.8 Before starting any works under Clause 10.7 the Council shall first give to the Developer 20 Working Days’ written notice or (in the event of there being a significant danger to the public) such lesser period as may in the circumstances be reasonable of its intention so to do. 10.9 Any notice served under Clause 10.8 shall specify the period of the notice (“the notice period”) the extent of the work which the Council proposes to carry out and full details of all matters in respect of which it is alleged the Developer’s obligations under Clause 10.6 have not been carried out in accordance with the terms of this Agreement. Legal.13319579.7/SBEA/21151.00019 21 25.06.10 10.10 If before the expiry of the notice period the Developer serves written notice upon the Council either: 10.10.1 that the Developer intends diligently to execute the works specified in the Council’s notice served in accordance with Clauses 10.8 and 10.9; or 10.10.2 that the Developer disputes obligations under Clause 10.6 not reasonable in the context such breach is to be remedied the existence of any breach of the Developer’s and/or that the works proposed by the Council are of any such breach and/or that the period in which is not reasonable. then the Council shall not be entitled to execute such works as specified in that notice unless in the case of a notice served under Clause 10.10.1 the Developer then fails to execute those works or in the case of a notice served under Clause 10.10.2 the Developer withdraws its notice or the Expert decides pursuant to the Dispute Resolution Procedure that there has been a breach of the Developer’s obligations pursuant to Clause 10.6 and that the works specified in the Council’s notice served pursuant to Clauses 10.8 and 10.9 and the period allowed for compliance are reasonable in the context of that breach. 10.11 If the parties cannot agree on the existence of the breach and/or the steps to remedy it and/or the period within which any necessary works are to be undertaken either party may refer the matter to the Dispute Resolution procedure. Pattern Building 10.12 At any time prior to the expiry of three years from the date of this Agreement the Council may serve notice on the Developer: (a) accompanied by building consent Pattern Building Shed Land and Scheme; and evidence that it has detailed planning permission/listed and a detailed design for an Appropriate Scheme for the to include, if the Council’s notice so requires, the Cart funding to Commence and complete that Appropriate (b) requiring the Developer to transfer the Pattern Building and, if the Council’s notice so requires, the Cart Shed Land to the Council or the Council’s Nominee; and (c) in the event that the Council’s notice served pursuant to this clause includes the Cart Shed Land the Council’s estimate of the Market Value of the Cart Shed Land. 10.13 Within 21 days of receipt of such notice, the Developer may require the Council to provide further information in connection with the Appropriate Scheme, the Council’s Nominee and the funding of the Appropriate Scheme, in order to enable the Developer to consider the Council’s proposals and to make a decision under Clause 10.15. 10.14 In the event that the Council’s notice pursuant to Clause 10.12 includes the Cart Shed Land the Developer shall within 21 days of receipt of such notice confirm its agreement of the Council’s estimate of the Market Value of the Cart Shed Land or alternatively indicate its disagreement of such estimate and shall set out the Developer’s own estimate of such Market Value 10.15 Within 21 days of receipt of the Council’s notice under Clause 10.12 or, if the Developer shall exercise its rights under Clause 10.13, 21 days after the provision Legal.13319579.7/SBEA/21151.00019 22 25.06.10 of information satisfactory to the Developer, acting reasonably or, if the Council’s notice served pursuant to Clause 10.12 includes the Cart Shed Land within 21 days of agreement of the Market Value of the Cart Shed Land or determination of its Market Value by an expert pursuant to Clause 21.9 (whichever is the last event), the Developer will confirm whether or not it approves the proposed Appropriate Scheme, the Council’s Nominee, the funding and the arrangements for its provision. Any such approval may be granted subject to reasonable conditions. 10.16 Upon the grant of the Developer’s approval under Clause 10.15, the Developer will transfer and the Council or the Council’s Nominee will accept a transfer of the Pattern Building and, if required, the Cart Shed Land, on such terms as the Developer shall reasonably require. Those terms will include the following: (a) completion shall occur as soon as reasonably practicable after the terms have been agreed; (b) the Transfer will be for nil consideration in respect of the Pattern Building; (c) the Transfer will be for the agreed or Expert-determined Market Value of the Cart Shed Land, if relevant; (d) the Council or the Council’s Nominee will be obliged to carry out the Approved Scheme in a good and workmanlike manner with good and proper materials and in accordance with a good design, and in accordance with such other obligations as the Developer shall reasonably require, and to complete the Approved Scheme within four years from the date of transfer of the Pattern Building and, if relevant, the Cart Shed Land; (e) if the Approved Scheme has not been Commenced, with a demonstrable intention to proceed continuously therewith until its completion, within three years from the date of transfer of the Pattern Building and, if relevant, the Cart Shed Land, the Developer will have an option, at any time thereafter but before the Approved Scheme has been Commenced, to reacquire the land transferred pursuant to Clause 10.16 on 14 days’ notice at nil consideration in respect of the Pattern Building and for the price paid by the Council or the Council’s Nominee on acquisition in respect of the Cart Shed Land; (f) the transfer of the Pattern Building and, if relevant, the Cart Shed Land, will contain a restrictive covenant prohibiting the use of the Pattern Building and, if relevant the Cart Shed Land otherwise than for purposes associated with tourism or as an office/business centre. (g) if the Council or the Council’s Nominee acquire the Pattern Building and, if required, the Cart Shed Land pursuant to this clause and wishes to dispose of all or any of the land so transferred , whether by way of transfer, lease or otherwise, before completion of the Approved Scheme, then the Council or the Council’s Nominee shall serve notice of such intended disposal and Developer shall have a right of pre-emption, exercisable within 21 days of receipt of notice by the Developer of the proposed disposal, for nil consideration in respect of the Pattern Building and for the price paid by the Council or the Council’s Nominee on acquisition in respect of the Cart Shed Land with completion to occur within 21 days after the exercise of the right of pre-emption PROVIDED ALWAYS and for the avoidance of doubt that this right of pre-emption shall not apply to any agreements for lease of individual units within the Pattern Building and, if relevant, affecting the Cart Shed Land which may be entered into by the Council or Legal.13319579.7/SBEA/21151.00019 23 25.06.10 the Council’s Nominee before completion of the Approved Scheme which agreements are to take effect once the Approved Scheme has been completed. 10.17 Any dispute or difference between the parties as to the terms under Clause 10.12 to 10.16 shall be referred to an Expert for determination in accordance with Clause 21.9. Goonvean Engine 10.18 Prior to Commencement of Development the Developer will identify to the Council by written notice a site not exceeding 207 square metres on South Quay or Foundry Car Park for the display of the Goonvean Engine with associated artefacts. 10.19 At any time prior to the expiry of three years from the date of service of the Developer’s notice pursuant to Clause 10.18 the Council or the Council’s Nominee may serve notice on the Developer: (a) accompanied by evidence that it has detailed planning permission, listed building consent (if required) and detailed design (including quality of materials) for an Appropriate Scheme for the Goonvean Engine display and funding to Commence and complete that Appropriate Scheme; and (b) requiring the Developer to grant a lease or licence of the Goonvean Engine Site to the Council or the Council’s Nominee. 10.20 Within 21 days of receipt of such notice, the Developer may require the Council to provide further information in connection with the Appropriate Scheme, the Council’s Nominee and the funding of the Appropriate Scheme, in order to enable the Developer to consider the Council’s proposals and to make a decision under Clause 10.21. 10.21 Within 21 days of receipt of the Council’s notice under Clause 10.19 or, if the Developer shall exercise its rights under Clause 10.20, 21 days after the provision of information satisfactory to the Developer, acting reasonably, the Developer will confirm whether or not it approves the proposed Appropriate Scheme, the Council’s Nominee, the funding and the arrangements for its provision. Any such approval may be granted subject to reasonable conditions. 10.22 Upon the grant of the Developer’s approval under Clause 10.21, the Developer will grant and the Council or the Council’s Nominee will accept a lease or licence (at the Developer’s discretion but where the proposed term is 50 years or less the Developer shall not withhold approval on that issue alone) of the Goonvean Engine Site on such terms as the Developer shall reasonably require. Those terms will include the following: (a) completion shall occur as soon as reasonably practicable after the terms have been agreed; (b) the lease or licence will be for nil consideration; (c) if required by the Developer, any lease to be granted shall be a lease in relation to which the landlord and the tenant agree to exclude the provisions of sections 24 to 28 of the Landlord and Tenant Act 1954 and, if the Developer does so require then before completion of such lease or, if earlier, the proposed tenant’s contractual obligation to enter into such lease the parties shall duly carry out the requirements of schedules 1 and 2 Legal.13319579.7/SBEA/21151.00019 24 25.06.10 of the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 to render their agreement valid; (d) the Council or the Council’s Nominee will be obliged to carry out the Approved Scheme in a good and workmanlike manner with good and proper materials and in accordance with a good design, and in accordance with such other obligations as the Developer shall reasonably require, and to complete the Approved Scheme within twenty-four months from the date of lease or licence of the Goonvean Engine Site; (d) if the Approved Scheme has not been Commenced, with a demonstrable intention to proceed continuously therewith until its completion, within the said twenty four month period the Developer will have an option, at any time thereafter but before the Approved Scheme has been Commenced, to reacquire the Goonvean Engine Site on 14 days’ notice at nil consideration; (e) the lessee or licensee shall be responsible for maintaining the Goonvean Engine display and the Goonvean Engine Site in good condition and the Developer will have the right to terminate the lease or licence and remove the Goonvean Engine display if the Council or the Council’s Nominee is in breach of that requirement; Management 10.23 With the first Reserved Matters Application for any Development Area of the Development which includes public realm/green space the Developer will submit a long term stewardship/management plan for the public realm/green space including details as to how and by what type of organisation such management and maintenance will be undertaken and how it is to be funded. 10.24 Where the Developer has identified areas of public realm/green space in accordance with Clause 10.1 then unless otherwise agreed with the Council the Developer will permit the general public to have access over such areas subject only to the Permitted Closures. 10.25 No Occupation shall take place in the relevant Development Area until such time as the details submitted pursuant to Clause 10.23 have been approved by the Council and each Development Area shall be operated in accordance with the details approved pursuant to Clause 10.23. 11 ECOLOGY Dune Mitigation 11.1 Following Commencement of the Development the Developer will manage the Dune Area with a view to responding with appropriate management measures to deal with the impact of increased visitors to the Dune Area which is reasonably attributable to the Development and will in so doing consult with the Towans Partnership, or any successor or other organisations with interests in and responsibilities for dune management in the Hayle area. 11.2 The Developer will serve notice on the Council as to the intended date of Commencement of development of the Hilltop Car Park not later than 6 months prior to that intended Commencement date and shall not Commence that development until 6 months has passed since the service of that notice and the approval by the Council of the method statement proposals referred to in Clause 11.4 and Clause 11.6 whichever is the latest event. Legal.13319579.7/SBEA/21151.00019 25 25.06.10 11.3 The Developer will pay to the Council. 11.3.1 the sum of £60,000 subject to Indexation prior to Commencement of the Hilltop Car Park to be held by the Council for measures to address indirect and future impacts of the Development on the dunes system in the Hayle area; and 11.3.2 the sum of £60,000 subject to Indexation to be paid prior to Occupation of the 101st Dwelling constructed on North Quay and Hilltop and Riviere Fields (or any combination of the above) to the Council as a contribution to the costs of providing a dunes officer with responsibility for managing the impact of visitors on the dunes system in the Hayle area. 11.4 At least 6 months prior to Commencement of construction of the Hilltop Car Park the Developer will submit method statement proposals including a programme for the creation and restoration of the dune habitat on the Harveys Towans Car Park for approval by the Council in consultation with the Environmental Consultees and upon approval the Developer will implement the approved scheme in accordance with the approved programme. The details to be submitted will also include proposals for monitoring and management of the dune habitat on the Harveys Towans Car Park and the Developer will undertake the monitoring and management of that area for a period of 5 years following completion of the creation and restoration works referred to in this Clause 11.4. 11.5 The Parties hereby agree that the Developer shall not be obliged to expend more than £231,650 in discharging its obligations (other than monitoring) pursuant to Clause 11.4 subject to Indexation. 11.6 At least 6 months prior to Commencement of construction of the Hilltop Car Park the Developer will submit method statement proposals including a programme for implementation for the clearance and management of sea buckthorn on the Sea Buckthorn Area for approval by the Council in consultation with the Environmental Consultees and upon approval the Developer will implement the approved scheme in accordance with the approved programme. The details to be submitted will also include proposals for monitoring and management of the Sea Buckthorn Area and the Developer will undertake the monitoring and management of that area for a period of 5 years following completion of the creation and restoration works referred to in this Clause 11.6. 11.7 The Parties hereby agree;- 11.7.1 that the Developer shall not be obliged to expend more than £10,160 in discharging its obligations pursuant to Clause 11.6 subject to Indexation; and 11.7.2 for the purposes of Clause 11 commencement of construction of the Hilltop Car Park shall not be deemed to have taken place by reference to commencement of the construction of roads and paths shown shaded grey on Plan 4. 11.8 Prior to or with the submission of Reserved Matters (or the first such submission) for Hilltop (other than Reserved Matters relating to roads paths or the installation of service media within the area of Hilltop) the Developer will submit method statement proposals including a programme for implementation, for the creation/restoration of dune grassland habitat on the Riviere Dune Grassland Restoration Area for approval by the Council in consultation with the Environmental Consultees and upon approval will implement the scheme in accordance with the approved programme. The details to be submitted will also include proposals for monitoring and management of the new/restored area and the Developer will be responsible for undertaking monitoring and management of that area for a period Legal.13319579.7/SBEA/21151.00019 26 25.06.10 of 5 years following completion of the creation/restoration works referred to in this Clause 11.8. 11.9 The Parties hereby agree that the Developer shall not be obliged to expend more than £426,692 in discharging its obligations (other than monitoring) pursuant to Clause 11.8 subject to Indexation. 11.10 The Parties hereby agree that the Developer shall not be obliged to expend more than £43,200 in discharging its monitoring obligations pursuant to Clauses 11.4 and 11.8 subject to Indexation. Inter Tidal Mitigation 11.11 The Developer will serve notice on the Council as to the intended date of commencement of works for the removal of Cockle Bank not later than 2 months prior to that intended commencement date and shall not commence those works until 2 months has expired since service of that notice. 11.12 No later than 2 months prior to the commencement of works for the removal of the Cockle Bank the Developer will submit to the Council for approval in consultation with the Environmental Consultees by way of mitigation or compensation for all Development-related losses of inter-tidal and sub-tidal habitats its proposals for the acquisition of land for the creation of new wetland habitat to be located at any of three sites short-listed in the Spalding Report. 11.13 The Developer shall not commence any works to remove the Cockle Bank until the Developer has transferred to the Council or its nominee (at no cost to the Council) the site or sites identified and approved by the Council pursuant to Clause 11.12 and the transfer of such site or sites shall include a restriction of use on the land transferred to that of the creation and maintenance of a wetland habitat and associated purposes. 11.14 The Developer shall not be obliged in discharging the obligations contained in Clauses 11.12 and 11.13 to expend more that £212,000 subject to Indexation and upon the transfer of the site or sites pursuant to Clause 11.13 the Developer shall serve upon the Council an account indicating the costs so expended and in the event that the said costs are less than the sum of £212,000 the Developer will make the balance of the said sum of £212,000 subject to Indexation available to the Council for the implementation and monitoring of a scheme or schemes for the creation, maintenance and monitoring of the said new wetland habitat. 11.15 The Developer shall make payments to the Council of such sums as the Council may demand in writing (such demand or demands to be served no earlier than transfer of the site or sites pursuant to Clause 11.13) up to the remaining balance of the said sum of £212,000 subject to Indexation less the costs identified in the Developer’s account submitted in accordance with Clause 11.14. Fishermen’s Harbour 11.16 The new harbour arm to be constructed for the new Fishermen’s Harbour as part of the Development will be provided with timber fendering and other surface treatments as appropriate to encourage colonisation in inter- and sub-tidal species PROVIDED ALWAYS THAT this obligation shall not require the Developer to expend more than £10,000 subject to Indexation in respect of this obligation and such treatments shall not prevent or obstruct the use of the quay wall for mooring and associated purposes. Legal.13319579.7/SBEA/21151.00019 27 25.06.10 Marina 11.17 The Developer shall use all reasonable endeavours including the insertion of appropriate provisions in any proposed lease of the Marina to require the Marina berth holders to undergo WiSe training or similar instructive programme for the protection of the environment by boat users. 11.18 Upon receipt of a notice from the Council so requiring (such notice to be served no earlier than the submission of the Reserved Matters Application for the Marina or the first such Reserved Matters Application) the Developer will provide a further assessment to the Council (in consultation with the Environmental Consultees) of the impact (if any) of increased waterborne activities on water birds and other marine wildlife on the Hayle Estuary and Carrack Gladden SSSI and RSPB Nature Reserve arising from the use of the Marina and generally from water sports activities from Hayle Harbour generated by the Development PROVIDED ALWAYS that where any Reserved Matters Application is submitted which includes the details of the ramp and pontoon which are proposed for the Fishermen’s Harbour without reference to the Marina then such Reserved Matters Application will not enable the Council to serve the notice referred to in this Clause 11.18. 11.19 Where the assessment referred to in Clause 11.18 indicates that mitigation may be required for any impact identified by such assessment the Developer shall with such assessment also submit proposals for mitigation including a programme for implementation for approval by the Council in consultation with the Environmental Consultees. The Developer will implement any such mitigation in accordance with the approved programme but shall not be required to implement mitigation proposals the costs of which exceeds £10,000 subject to Indexation. Ecological Management Plan 11.20 Prior to or with the first Reserved Matters Application for each Development Area the Developer will submit to the Council for approval in consultation with the Environmental Consultees an ecological management plan including a CEMP to deal with the management mitigation and monitoring of the impact of that Development Area upon ecology within the Site and no Development shall take place in that Development Area until such time as the relevant ecological management plan has been approved by the Council and each Development Area shall be constructed and operated in accordance with the relevant approved ecological management plan. 11.21 The ecological management plan to be submitted by the Developer shall conform with the requirements of Schedule 2 insofar as relevant to the particular Development Area. 11.22 Following the submission of the first ecological management plan in accordance with Clause 11.20 submissions of ecological management plans for subsequent Development Areas shall include proposals for interruption or change of any ongoing ecological monitoring regimes as may be required by the construction and operational requirements of such subsequent Development Area or Development Areas. 11.23 The Parties hereby agree that the Developer shall not be obliged to implement monitoring or mitigation for any element of the CEMP or other ecological management plan the cost of which exceeds the relevant estimate set out in Tables 1 and 2 of Schedule 2 subject to Indexation. Legal.13319579.7/SBEA/21151.00019 28 25.06.10 11.24 Unless otherwise agreed with the Council no development shall be permitted on the Triangular Spit other than in accordance with any management regime for protection of petalwort and for the management of operational disturbance to birds at Carnsew Pool and Lelant Water which may be agreed with the Council in consultation with the Environmental Consultees. Repayment 11.25 The Council covenants with the Developer that if the sums paid by the Developer to the Council pursuant to Clauses 11.3.1 and/or 11.3.2 and/or 11.25 or any part of them shall remain unexpended by the fifth anniversary of each respective payment then the Council will repay any such unexpended sum to the Developer (meaning in this case the party who made payment) upon the fifth anniversary of the relevant payment and each of them. 12 EDUCATION 12.1 The Developer shall following the sale of each Market Housing Unit provide details in writing to the Council identifying the address of the Unit the number of bedrooms within it and whether or not the terms of the sale allow for permanent and continuous occupation and shall submit such details in accordance with the Accounting Procedure. 12.2 The Developer will pay to the Council the sum of £1500 (subject to Indexation) upon the Occupation of every Market Housing Unit of 2 or more bedrooms such payment to be made in accordance with the Accounting Procedure PROVIDED ALWAYS that no such payment shall be payable for any Market Housing Unit which is Disposed of subject to a planning restriction on occupancy which prevents such Market Housing Unit being occupied throughout the year. 13 SUSTAINABILITY 13.1 Unless otherwise agreed in writing by the Council, with each Reserved Matters Application the Developer will submit to the Council for approval a Development Area Energy Strategy for that Development Area or Development Areas to which such Reserved Matters Applications relates to demonstrate how the required 10% reduction in CO2 emissions in that Development Area will be achieved measured against the Building Regulations standards in place as at the date of the Application. No Development shall take place in that Development Area until the Development Area Energy Strategy is approved by the Council and each Development Area shall be constructed in accordance with the relevant Development Area Energy Strategy. 13.2 The Development Area Energy Strategy will include details of the Developer’s commitment: 13.2.1 to incorporating on-site renewable energy generation; and 13.2.2 to achieving BREEAM ‘Very Good’ ratings or equivalent for the office and commercial areas of the Development; and 13.2.3 to achieving Code for Sustainable Homes Level 4 for Dwellings or such less onerous requirement which may be required by Government guidance or Building Regulations at the time of construction. Legal.13319579.7/SBEA/21151.00019 29 25.06.10 13.3 The Developer will use reasonable endeavours to access energy from the Wave Hub (if possible and permitted) to achieve the objectives of the Development Area Energy Strategy requirements. 14 PRIMARY HEALTH FACILITIES 14.1 The Developer shall pay to the Council the sum of £180 subject to Indexation upon the Occupation of each Market Housing Unit comprised within the Development such payment to be made in accordance with the Accounting Procedure. 14.2 The Developer will make a site or space available at Market Value within the Development for the relocation of or facilities for the existing Hayle general practitioners’ medical practice. 14.3 If no agreement has been reached for the transfer of such site identified in accordance with Clause 14.2 within 1 year of the commencement of marketing of the Development Area within which such site falls then the use of such site shall cease to be restricted under the terms of this Agreement and shall be available for alternative uses by the Developer subject to the grant of planning permission. 15 BUSINESS CENTRE 15.1 The Developer will make a site or space available at Development for a Business Centre or Business Centres. 15.2 If no agreement has been reached for the transfer or lease of such site or sites within 18 months of the commencement of marketing of the Development Area within which such site falls then the use of such site shall cease to be restricted under the terms of this Agreement and shall be available for alternative uses by the Developer subject to the grant of planning permission. 16 DESIGN FRAMEWORK AND DETAILED DESIGN CODES 16.1 Unless otherwise permitted by the Council no Development Area of the Development shall be constructed other than in accordance with the Parameter Plan and the principles set out in Hayle Harbour Development Framework and Design Codes PROVIDED THAT any permitted variation must accord with the description of the development in the Planning Permission and the Council is satisfied: 16.1.1 that any permitted variation will have no significant adverse environmental effects; or 16.2 the application for variation is accompanied by an environmental statement assessing the likely significant environmental effects of the variation. 17 PEDESTRIAN BRIDGE 17.1 The Developer shall (having regard to the provisions of this Agreement) use reasonable endeavours from the date of the first Reserved Matters Application which includes land on South Quay to secure: 17.1.1 the Harbour Revision Order; and 17.1.2 the Necessary Consents free from Onerous Terms for the Pedestrian Bridge Legal.13319579.7/SBEA/21151.00019 30 Market Value within the 25.06.10 17.2 If the Developer is able to secure the Harbour Revision Order and the Necessary Consents free from Onerous Terms for the Pedestrian Bridge, it shall procure the delivery of the Pedestrian Bridge prior to Occupation of more than 8,000 square metres (gross) of the non-residential floorspace to be constructed on South Quay as part of the Development PROVIDED THAT it shall not be required to expend more than the sum of £466,200 plus VAT (subject to Indexation) upon securing the provision of the Pedestrian Bridge 17.3 If the Developer, having used reasonable endeavours, has not been able to secure the Harbour Revision Order and/or the Necessary Consents free from Onerous Terms within 3 years from Commencement of the Development on South Quay it shall serve a written notice upon the Council confirming that it has not been able to secure the Necessary Consents free from Onerous Terms and/or the Harbour Revision Order and is unable to procure the delivery of the Pedestrian Bridge 17.4 The Developer shall pay to the Council the Pedestrian Bridge Sum within 10 Working Days of receipt of the Developer’s notice served in accordance with Clause 17.3 17.5 The Pedestrian Bridge Sum shall not exceed £466,200 plus VAT subject to Indexation 17.6 The Developer shall not Occupy more than 8,000 square metres (gross) of the nonresidential floorspace to be constructed as part of the Development on South Quay unless either: 17.7 (a) the Pedestrian Bridge has been provided; or (b) the Pedestrian Bridge Sum has been paid to the Council. In the event that the Pedestrian Bridge Sum is paid to the Council it shall spend the Pedestrian Bridge Sum only upon the provision of the Pedestrian Bridge or such other measures which the Council considers will improve connectivity between South Quay and Hayle and which measures shall be approved by the Developer (meaning in this case the party who made payment) (such consent not to be unreasonably withheld or delayed) Repayment 17.8 The Council covenants with the Developer that if the Pedestrian Bridge Sum or any part of it shall remain unexpended by the third anniversary of payment then the Council will repay any unexpended sum to the Developer (meaning in this case the party who made payment) upon the third anniversary of the payment of the Pedestrian Bridge Sum. For the avoidance of doubt it is hereby agreed that if the Council is unable to provide the Pedestrian Bridge or such other measures in accordance with Clause 17.7 then the Council may withhold from repayment its reasonable costs incurred in pursuing the Pedestrian Bridge or such other measures, subject to a limit of £80,000 subject to Indexation. 18 CARNSEW SLUICES 18.1 Prior to first Occupation of any part of the Development on South Quay the Developer shall: 18.2 submit to the Council a listed building application in respect of all parts of the Phase A Works which require listed building consent; Legal.13319579.7/SBEA/21151.00019 31 25.06.10 18.3 subject to the necessary listed building consent first being granted carry out and complete the Phase A Works PROVIDED THAT the Developer shall not be required by this Agreement to spend more than £17,000 (subject to Indexation) upon the carrying out of the Phase A Works 18.4 Prior to first Occupation of any part of the residential Development on South Quay the Developer shall: 18.5 submit to the Council a listed building application in respect of all parts of the Phase B Works which require listed building consent; 18.6 subject to the necessary listed building consent first being granted carry out and complete the Phase B Works PROVIDED THAT the Developer shall not be required by this Agreement to spend more than £11,000 (subject to Indexation) upon the carrying out of the Phase B Works 19 SLUICING IN THE HARBOUR 19.1 Prior to first operational use of any part of the Fishermen’s Harbour or the Harbour Arm the Developer shall submit the Sluicing Report to the Council for approval 19.2 The Council may within 30 Working Days of receipt of the Sluicing Report submit to the Developer in writing any representations in respect of the Sluicing Report and the Developer shall take into account all reasonable representations made by the Council and if necessary the Developer shall amend the Sluicing Report to reflect any such representations 19.3 The Sluicing Report shall consider funding options for the Sluicing Works and establish the availability at the time of funding, subsidy or grant available to either fully or partially fund the carrying out of the Sluicing Works and shall conclude the extent and timing of the Sluicing Works to be undertaken by the Developer in light of the available funding, subsidy or grant 20 ACCOUNTING PROCEDURE 20.1 On or before the 31st January in each year the Developer will submit to the Council for the 12 month period ending on the preceding 31 December: 20.1.1 the details required pursuant to Clause 12.1 of all Market Housing Units Occupied in that preceding 12 month period; and 20.1.2 the corresponding payment pursuant to Clause 12.2; and 20.1.3 the number of Dwellings Occupied during the preceding 12 month period; and 20.1.4 The corresponding payment pursuant to Clause 14.1. 21 AGREEMENTS AND DECLARATIONS 21.1 Lapse Revocation or Modification of the Permission The obligations in this Agreement shall lapse and all entries on the Register of Local Land Charges and the Register of Title of the Site relating to it shall be deleted if the Planning Permission. 21.1.1 lapses without having been Commenced; or Legal.13319579.7/SBEA/21151.00019 32 25.06.10 21.1.2 is revoked; or 21.1.3 is modified other than at the request of the Developer; or 21.1.4 is quashed. 21.2 Other Planning Permissions 21.2.1 This Agreement and the obligations imposed herein on the Developer shall not in any way constrain the development or use of the Site (or any part or parts of it) in accordance with any planning permission (other than the Planning Permission) granted by the Council or the Secretary of State for Communities and Local Government. 21.2.2 Insofar as the obligations on the part of the Developer contained in this Agreement are discharged in whole or in part pursuant to the implementation of the Detailed Planning Permission or any other planning permission which may be implemented on the Site then the Developer shall be relieved of such obligation to the extent of that discharge under this Agreement. 21.3 Notices Any notice or other written communication to be served or given under the terms of this Agreement shall be deemed to have been validly served or given if transmitted by facsimile, delivered by hand or sent by registered or recorded delivery post to the party upon whom it is to be served or to whom it is to be given at the address as specified above and: 21.3.1 in respect of the Council it shall be marked for the attention of the “Head of Planning and Regeneration”; and 21.3.2 In respect of the Developer it shall be marked for the attention of the “Company Secretary”. 21.4 Parting with Interests in the Application Site and Successors in Title 21.4.1 The Developer shall upon parting: (a) with the fee simple in any part of the Site be released from all obligations and duties under the terms of this Agreement insofar as they relate to or are binding on that part of the Site; and (b) with the entirety of its interest in the Site as a whole be released from all liabilities whatsoever under the terms of this Agreement. 21.4.2 The releases provided for in Clause 21.4.1 shall not apply to any prior or existing breach as at the date of disposal. 21.4.3 Any obligation under the terms of this Agreement which is expressed to be binding on a particular area of land shall be binding on the Developer’s successors in title but only insofar as they are successors in title to that area of land or relevant part of it and on the basis that such successors benefit from Clause 21.4.1 in (mutatis mutandis) the same way as the Developer. 21.5 Liability of Successors Legal.13319579.7/SBEA/21151.00019 33 25.06.10 21.5.1 No successor in title to the Developer shall be liable for any breach of any obligation which occurs in relation to any area of the Site which that successor does not own or control or which is carried out by any person other than that successor. 21.5.2 This Agreement will not be binding or enforceable against the following:(a) lessees or purchasers who Occupy or are entitled to Occupy any Dwelling except where the obligation restricts of prohibits Occupation or use of the Dwelling; and/or (b) lessees or purchasers who Occupy non-residential floorspace within the Development except where the obligation restricts or prohibits occupation or use of such non-residential floorspace. 21.5.3 No obligation under this Agreement shall be enforceable against any mortgagee or receiver unless such mortgagee or receiver shall have taken possession of the relevant part of the Site in exercise of its power of sale but no successor in title to any such mortgagee or receiver shall (without prejudice to this Clause 21.5.3) take free of any obligation which binds that part of the Site to which it or they are a successor in title. 21.6 Discharge by Performance Upon the performance discharge or other fulfilment of the covenant obligations (or any of them) by the Developer, any successor in title, or the Council under the terms of this Agreement such covenant obligation or obligations shall absolutely cease and determine save in respect of any antecedent breach. 21.7 Registration 21.7.1 This Agreement may be registered by the Council as a local land charge in compliance with section 1 Local Land Charges Act 1975 and the Council agrees that when any obligation under this Agreement is performed that information on performance and the extent of such performance will be made available to applicants for land charges searches if requested. 21.7.2 The Developer shall register this Deed on the Charges Register of the Title Numbers of the properties forming part of the Site at the Land Registry and provide Office Copies of entries to the Council as evidence of the same within one month of the date of this Agreement. 21.8 Contracts (Rights of Third Parties) Act 1999 21.8.1 This Agreement does not and is not (save where this Clause is in any other Clause expressly (by express reference) excluded) intended to confer any rights whatsoever on any person who is not a party to this Agreement pursuant to Contracts (Rights of Third Parties) Act 1999. 21.8.2 (Without prejudice to Clause 21.8.1 this Agreement may be varied revoked or supplemented without the consent of any third party. 21.9 Dispute Resolution 21.9.1 Save where expressly excluded any difference disagreement or question which arises between the parties under the terms of this Agreement may be referred to an Expert under the Dispute Resolution Procedure. Legal.13319579.7/SBEA/21151.00019 34 25.06.10 21.9.2 The decision of the Expert under the Dispute Resolution Procedure shall (save in the case of manifest error or in relation to a point of law) be final and binding on all of the parties to the dispute but shall not preclude the Developer from recommencing any approval procedure under the terms of this Agreement with revised proposals. 21.9.3 The Dispute Resolution Procedure shall apply to any reference to the Expert. 21.9.4 Each party shall bear their own costs in relation to preparing and submitting evidence to the Expert save that the Expert shall have the power to determine how costs are to be awarded. 21.10 Planning Gain Supplement Tax and Community Infrastructure Levy 21.10.1 If there is levied on the Developer in addition to the requirements of this Agreement any requirement to make any payment by way of planning gain supplement tax planning charge or community infrastructure levy or any other requirement that the Developer pay to the Council and/or to HM Revenue and Customs or to any other revenue collecting body designed to fund benefits such as those toward which the Developer is making any payment under this Agreement: (a) the Developer may require of the Council that as a precondition to making any such payment under this Agreement the Council first undertakes that if any of the above eventualities arises it shall repay to the Developer whichever is the lesser of the amount of planning gains supplement community infrastructure levy and planning charge due from the Developer and the amount payable under this Agreement in connection with which the Developer seeks such repayment undertaking; and (b) any unmet obligation of the Developer to make any such payment under this Agreement shall be reduced commensurately with the amount of any amount it is required to pay by way of planning gain supplement tax planning charge or community infrastructure levy. 21.11 Void Agreement 21.11.1 If any provision of this Agreement is declared by any Court to be void voidable illegal or otherwise unenforceable the remaining provisions of this Agreement shall continue in full force and effect and the parties shall if required amend that provision in accordance with or to give effect to the decision of the Court 21.12 Approvals and Consents 21.12.1 Where this Agreement: 21.12.2 (a) requires any matter to be agreed approved certified consented to or determined by any party or any person on behalf of any party hereto under this Agreement such agreement approval certification consent or determination shall not be unreasonably withheld or delayed and shall be given in writing; and (b) requires any report review strategy study or other document to be prepared and/or submitted to another party such report review strategy study or other document shall be prepared and submitted in writing. The parties agree with one another to act reasonably and in good faith in the fulfilment of the objectives of this Agreement. Legal.13319579.7/SBEA/21151.00019 35 25.06.10 21.12.3 Where it is provided in this Agreement that a matter is to be agreed by any of the parties or is to be agreed or approved by any of the parties and a timescale for such agreement being reached or agreement or approval or deemed approval being given is not provided then (without prejudice to Clause 21.12.1) the relevant provision shall be deemed to be subject to a proviso that: (a) the party in receipt of the submission of the matter to be approved or agreed shall respond in writing within 15 Working Days of receipt of such submission (or a reasonable extension of this time as necessary and to be agreed by the parties) either indicating approval or setting out details of disagreement; and (b) the party in receipt of any amended submission following the exchange referred to in Clause 21.12.3(a) shall respond in writing within 15 Working Days of receipt of such amended submission (or a reasonable extension of this time as necessary and to be agreed by the parties) either indicating approval or setting out details of disagreement; and (c) if agreement is not reached or the matter is not agreed or approved within a period of 40 Working Days (or a reasonable extension of this time as necessary and to be agreed by the parties) then the matter may be referred to the Expert pursuant to Clause 21.9 PROVIDED THAT this provision shall not prevent a dispute from being referred to the Expert earlier than the expiry of such period by any party to this Agreement where that party is of the view that agreement will not be reached or the matter will not be agreed or approved within the said period. Legal.13319579.7/SBEA/21151.00019 36 25.06.10 Schedule 1 Affordable Housing Part 1 Definitions 1 Definitions In this Schedule: "Allocation" means the process by which the Affordable Housing Provider selects a Qualifying Person for an Affordable Housing Unit upon it becoming available for occupation "Approved Lender" means a Bank or Building Society registered in the UK “Area Local Connection” means a connection with the Primary Area or the Secondary Area and demonstrated by that person or a member of their household to the reasonable satisfaction of the Council: (a) Being permanently resident therein for a continuous period of at least 3 years immediately prior to the offer of the relevant Affordable Housing Unit; or (b) Being permanently resident therein for a continuous period of 5 years; or (c) Having his or her place of permanent work (not including seasonal employment) therein for a continuous period of 3 years immediately prior to the offer of the relevant Affordable Housing Unit; or (d) Having a connection through a close family member (as determined by the Council but not limited to a resident parent, child, brother or sister) who meets the criteria (a) of this definition. “County Local Connection” means a connection with the Council’s Area as appropriate and demonstrated by that person or a member of their household to the reasonable satisfaction of the Council: (a) Being permanently resident therein for a continuous period of at least 12 months immediately prior to the offer of the relevant Affordable Housing Unit and that residence is of their own choice: or (b) Being permanently resident therein for a continuous period of 3 years; or (c) Having his or her place of permanent work (not including seasonal employment) therein immediately prior to the offer of the relevant Affordable Housing Unit; or (d) Having a connection through a close family member (as determined by the Council but not limited to a resident parent, child, brother or sister) who meets the criteria (a) of this definition; or (e) Such other special circumstances which the Council considers require the applicant to reside in the Council’s Area and are consistent with the Council’s Homechoice policy as amended from time to time "Homes and Communities Agency" means the body which funds Affordable Housing Providers or its successors in title Legal.13319579.7/SBEA/21151.00019 37 25.06.10 "Homeseekers Register" means the Council’s Homeseekers Register or such other register or list that the Council may in future hold identifying a Qualifying Person where those persons are considered to be in Housing Need "Housing Need" means being homeless or threatened with homelessness or living in accommodation which is insecure or unsuitable and in the reasonable determination of the Council unable to purchase or otherwise secure reasonably suitable accommodation in the normal open market for property in the Primary Locality or the Council’s Area as the case may be taking into account the person's income and capital and such other matters as the Council shall consider to be relevant to such determination save that accommodation may be unsuitable on the grounds of cost overcrowding unfitness or lack of basic amenities or because of a person's infirmity physical disability mental disability or specific social or care needs "Initial Qualifying Person" means: (a) a person who is on the Homeseekers Register and/or is considered in the reasonable opinion of the Council to be in Housing Need and has an Area Local Connection, or (b) a Key Worker "Key Worker" means any person primarily employed in the Council’s Area who is unable to afford suitable accommodation in the private housing market unassisted and fulfils a role in a universally accessible essential local service which if not performed would be detrimental to the well-being of the community which shall include for the time being and at the Council's absolute discretion persons employed in: (a) a school or other further education establishment (for example - teacher classroom assistant lecturer and essential ancillary/auxiliary support staff) (b) a hospital or other health establishment (for example - clinical staff nurse doctor medical administrators essential support staff) (c) the police fire ambulance or rescue services (including lifeboat crew) (d) the armed forces (e) national public services or local public services (f) public transport services (g) community and voluntary sector or such other persons which the Council may from time to time consider to be employed in a universally accessible essential local (h) any other employment as agreed by the Council. “Maximum Price" means the maximum price at which each Unit Discounted for Sale may be sold at any time and being an amount not exceeding 75% of the Open Market Value of that Unit Discounted for Sale "Nomination Agreement " means an agreement providing for the process by which the Council selects a Qualifying Person from the Homeseekers Register for Allocation by the Developer or the Affordable Housing Provider "Open Market Value" means the value an Affordable Housing Unit would have if this Agreement did not restrict the manner in which the Affordable Housing Unit could be let or Legal.13319579.7/SBEA/21151.00019 38 25.06.10 sold to the persons who occupy it which shall be determined by averaging the valuations of two independent local valuers (being Members of the Royal Institute of Chartered Surveyors) appointed by express agreement between the parties to this Agreement and the Developer shall be solely liable for the costs of the independent local valuers "Primary Area" means the administrative area of Hayle Town Council "Purchaser" means a person or persons who has/have the interest which carries the right to occupy an Affordable Housing Unit and/or an equity sharing lease as an Affordable Housing Unit and unless the context indicates otherwise their successors in title assigns and any person deriving title under them "Qualifying Person" means an Initial Qualifying Person or a Secondary Qualifying Person or a tenant or lessee of a mortgagee of an Affordable Housing Unit "Ready For Occupation" means substantially complete and ready for first occupation as a dwelling including all internal partitions fixtures and fittings but excluding internal decoration “Relevant Disposal" means the grant or transfer of any interest in an Affordable Housing Unit that carries with it the right to occupy an Affordable Dwelling and any grant or transfer of any interest to a person who already has such a right ""Secondary Area" means the administrative area of the Hayle and St Ives Community Network Area comprising Hayle, Gwinear-Gwithian, St Erth, St Ives and Towednack “Secondary Qualifying Person" means: (a) a person who is on the Homeseekers Register and/or is considered in the reasonable opinion of the Council to be in Housing Need and has a County Local Connection or (b) a Key Worker "Shared Ownership Lease" means a lease by which the tenant being also the occupier (then or on completion): (a) obtains and retains a minimum 25% and maximum 75% initial share of the freehold or long leasehold (as the case may be) of the value of the Affordable Housing Unit with the balance of the equity held by an Affordable Housing Provider; and (b) has a right at any time to purchase the whole (up to 100% or up to 80% where staircasing is restricted by virtue of the provisions of the Housing (Shared Ownership Leases (Exclusion from Leasehold Reform Act 1967) (England) Regulations 2009 or any part of the balance of such value substantially in accordance with the terms of the Homes and Communities Agency Model Form of Lease; and (c) pays rent on the unpurchased share on the equity such rent not to exceed the amount or percentage as accords with guidance issued by the Homes and Communities Agency from time to time “Shared Ownership Unit” means an Affordable Housing Unit let on a Shared Ownership Lease “Tenant Services Authority” means the body which regulates Affordable Housing Providers in England or its successors in title. Legal.13319579.7/SBEA/21151.00019 39 25.06.10 1 THE DEVELOPER’S COVENANT 1.1 The Developer hereby covenants with the Council that it will abide by the provisions of this Schedule in respect of the Affordable Housing and will ensure that any Disposal of Affordable Housing Units and/or Affordable Housing Land to any Affordable Housing Provider shall include a requirement for the Affordable Housing Provider to comply with these provisions. 1.2 For the avoidance of doubt the Developer will cease to have any further liability under the terms of this Schedule for any Affordable Housing Units or Affordable Housing Land once these are Disposed of to an Affordable Housing Provider or in the case of any Unit Discounted for Sale to any Purchaser of such Unit. 2 UNITS DISCOUNTED FOR SALE 2.1 Any Disposal of any Unit Discounted for Sale shall be for no more than the Maximum Price. 2.2 There shall be included in any lease or transfer document the price paid for the Unit Discounted for Sale expressed as a percentage when compared to the Open Market Value 2.3 The Developer will contact the Council when any of the Units Discounted for Sale are ready for marketing and will provide to the Council the necessary information to allow the Units Discounted for Sale to be marketed to a Qualifying Person. 2.4 If after a period of eight weeks (from the initial date of marketing which may commence at any time after the submission of a Reserved Matters Application which includes the relevant Unit) of any Unit Discounted for Sale which is Ready for Occupation having been made available for sale or letting and advertised as such locally no Initial Qualifying Person or Secondary Qualifying Person has agreed terms to purchase or take a tenancy or lease of the Unit Discounted for Sale the Developer may either:(a) sell his interest in the Unit Discounted for Sale to the Council or an Affordable Housing Provider at the Maximum Price and the Unit Discounted for Sale will continue to be bound by the terms of this Agreement and will continue to be designated as a Unit Discounted for Sale; or (b) sell his interest in the Unit Discounted for Sale on the open market and in this event the provisions of this Schedule shall no longer apply to the Unit Discounted for Sale and it shall henceforth become free of any restrictions and capable of being sold at Open Market Value 2.5 The lease or transfer of any Unit Discounted for Sale shall include the following provisions subject to paragraph 4.3 of this Schedule: 2.5.1 That they may be sold subsequently only to Qualifying Persons and pursuant to the procedure set out in paragraph 3 of this Schedule and 2.5.2 All Disposals of any Unit Discounted for Sale shall be for the Maximum Price. 3 SALES AND LETTINGS 3.1 The Developer shall not Dispose of any Affordable Housing Unit other than a Unit Discounted for Sale to anyone other than an Affordable Housing Provider Legal.13319579.7/SBEA/21151.00019 40 25.06.10 3.2 Subject to the provisions on paragraph 4 of this Schedule no Affordable Housing Unit other than a Unit Discounted for Sale; 3.2.1 may be Occupied until the relevant Affordable Housing Provider has entered into a Nominations Agreement with the Council; or 3.2.2 may be leased or sold to anyone other than a Qualifying Person. 3.3 Where any leaseholder wishes to sell his equity share in a Shared Ownership Unit the leaseholder shall comply with the relevant provisions contained in its lease which shall include a provision that the leaseholder must notify the Affordable Housing Provider of his wish to sell the Shared Ownership Unit and must allow the Affordable Housing Provider or its nominee a period of not less than four weeks to purchase the equity share at open market value. 4 PROVISOS 4.1 No Affordable Housing Unit shall be Occupied at any time other than as the only or principal home of a Qualifying Person and in particular nor shall any Affordable Housing Unit be used as a second home or holiday home or winter let 4.2 Nothing in this Agreement shall prevent the leaseholder under a Shared Ownership Lease surrendering to the relevant Affordable Housing Provider with vacant possession but the provisions of this Agreement shall continue to apply to restrict the Occupation Disposal and letting of that Affordable Housing Unit. 4.3 The restrictions on occupation of any Affordable Housing Unit; 4.3.1 Subject to the provisions of paragraph 4.5 will not bind any mortgagee of an Affordable Housing Provider or any mortgagee of an occupier of an Affordable Housing Unit or any receiver or manager (including an administrative receiver) appointed pursuant to the Law of Property Act 1925 or otherwise by a party who has provided loan facilities for the purpose of providing the Affordable Housing 4.3.2 nor will the obligations be binding on any purchaser from such person; and 4.4 will cease to apply in respect of any: (a) Shared Ownership Unit where the tenant has staircased to 100% of the equity in such unit; (b) Any Affordable Housing Unit where the tenant has acquired pursuant to a right to buy under Part V of the Housing Act 1985 as amended by the Housing (Preservation of Right to Buy) Regulations 1993 or pursuant to a right to acquire under section 16 of the Housing Act 1996 or any similar or substitute statutory right applicable. 4.5 Any mortgagee or other person referred to in paragraph 4.3.1 shall prior to seeking to dispose of the Affordable Housing Unit or Affordable Housing Land pursuant to any default under the terms of its mortgage or charge shall give not less than 2 months’ prior notice to the Council of its intention to dispose and: 4.5.1 in the event that the Council responds within 1 month from receipt of the notice indicating that arrangements for the transfer of the Affordable Housing Unit can be made in such a way as to safeguard them as Affordable Housing then the mortgagee (or other person referred to in paragraph 4.3.1) shall co-operate with such arrangements and use its best endeavours to secure such transfer; and Legal.13319579.7/SBEA/21151.00019 41 25.06.10 4.5.2 if the Council does not serve its response to the notice served under 4.5.1 within 1 month of receipt then the mortgagee (or other person referred to in paragraph 4.3.1) shall be entitled to dispose free of any restrictions imposed by this Agreement on the occupation or disposal of that Affordable Housing Unit; and 4.5.3 if the Council or any other person cannot within 2 months of the date of service of its response under paragraph 4.5.1 above secure such transfer then provided that the mortgagee (or other person referred to in paragraph 4.3.1) shall have complied with its obligations under paragraph 4.5.1 it shall be entitled to dispose free of any restrictions imposed by this Agreement on the occupation or disposal of that Affordable Housing Unit Part 2 Shared Ownership Lease 1 Any Shared Ownership Lease shall unless the Council and the Developer otherwise agree in writing: 1.1 Be granted by an Affordable Housing Provider in accordance with the Homes and Communities Agency rules from time to time in force and: 1.1.1 provide for the Purchaser to acquire an initial share of an Affordable Housing Unit the value of which shall not exceed the 75% of the Open Market Value; and 1.1.2 limit the rent to a rent that is determined by reference to Homes and Communities Agency guidelines on Shared Ownership Leases (or such other document as may supersede those guidelines); and 1.1.3 limit occupation to a Qualifying Person. Legal.13319579.7/SBEA/21151.00019 42 25.06.10 Schedule 2 Ecological Management Plan 1 THE CEMP: The CEMP shall include the following provisions where appropriate: 1.1 establishing baseline conditions where necessary; 1.2 prevention of the release of pollutants/harmful substances into the aquatic environment; 1.3 a construction-phase water quality monitoring regime, to be defined and agreed with Environmental Consultees; 1.4 the timing of specific works likely to have a significant impact on ecology to be determined primarily with reference to a matrix of “seasonal sensitivities” of ecological receptors; 1.5 monitoring of aquatic ecology during the construction of each phase with provisions for management in the event that Environmental Quality Standards are exceeded; 1.6 ornithological mitigation components (defined in Annexe 12N of the Environmental Statement which was submitted with the Planning Application), including the identification of development related disturbance risk factors, resultant control measures and related monitoring; 1.7 translocation, by licence, of petalwort colonies on South Quay including proposal for and research/studies in support of translocation sites; 1.8 mitigation of impact on bats including undertaking works under European Protected Species licence wherever necessary including re-survey (if indicated) in advance of development in sufficient time to modify plans and/or acquire relevant licences, avoidance of roost sites during construction, replacement of lost roost sites; 1.9 mitigation of impact on reptile communities including protection of habitats and translocation of species during construction; 1.10 mitigation of impact on western ramping fumitory, purple ramping fumitory and ivy broomrape, involving translocation of substrates/plant material prior to construction; 1.11 management of the removal of Cornish hedges and the establishment of approximately 280 metres of new Cornish hedges; 1.12 continuation of construction-phase monitoring on an annual basis as appropriate and for a minimum period of 12 months following completion of impacting construction works. Should independent audit of monitoring results show that the Environmental Consultees have concerns that the monitoring surveys do not show recovery to baseline levels conditions within this monitoring period then the surveys shall continue until the mitigation proposals are proven. Should independent audit of monitoring results show that recovery to baseline conditions has occurred before completion of the monitoring period monitoring will be terminated at that point. The role of the independent auditor will be defined in the CEMP and method of appointment agreed. Legal.13319579.7/SBEA/21151.00019 43 25.06.10 Table 1 Costs associated with ecological monitoring / mitigations items in Schedule 2, section1 Item 1.3 –water quality monitoring regime Budget Ceiling £10,000 1.5 – monitoring of aquatic ecology during construction 1.6 – application of construction-phase ornithological mitigation components (risk factors, control measures and monitoring) 1.7 – translocation of petalwort colonies on South Quay 1.8 – mitigation of impacts on bats 1.9 – mitigation of impacts on reptiles 1.10 – mitigation of impacts on rare plants 1.11 – management of the removal and replanting of Cornish hedges 1.12 – post-construction monitoring £24,000 £13,600 £10,000 £34,200 £83,780 £1,830 £30,380 £100,000 All figures subject to Indexation 2 The EMP shall make provision for monitoring, with the objective of detecting operational phase impacts on aquatic ecology (invertebrates, algae, fish and aquatic birds), comprising: 2.1 A water quality monitoring regime relevant to the Harbour operations proposed by the Development (impoundment, sluicing, dredging), to be defined and agreed in consultation with the Environmental Consultees. 2.2 Baseline and operational-phase fish surveys in Carnsew Pool, Copperhouse Pool, the Harbour and Penpol Creek, with baseline surveys to take place in the summer prior to commencement of the first-phased harbour works and two operational surveys to commence in the summer following completion of the relevant works, the timing of these subsequent surveys to be determined in consultation with the Environmental Consultees 2.3 Invertebrate and algae surveys on the new Fishermen’s Harbour structures comprised in the Development commencing in the summer following completion of these works, to continue for a period of 5 years. 2.4 Baseline and operational surveys for algae and Salicornia in Carnsew Pool and Copperhouse Pool, with baseline surveys to take place in the summer prior to commencement of the first-phased harbour works and two operational surveys to commence following completion of the relevant works, the timing of these subsequent surveys to be determined in consultation with the Environmental Consultees 2.5 Baseline and operational surveys for invertebrates in Carnsew Pool and Copperhouse Pool, with baseline surveys to take place in the summer prior to commencement of the first-phased harbour works and two operational surveys to commence following completion of the relevant works, the timing of these subsequent surveys to be determined in consultation with the Environmental Consultees 2.6 Baseline and operational surveys of the extent of biotopes in Copperhouse Pool dominated by Enteromorpha, with the baseline survey to take place in the summer prior to commencement of the first-phased harbour works, and two operational surveys to commence following completion of the relevant works, the timing of Legal.13319579.7/SBEA/21151.00019 44 25.06.10 these subsequent surveys to be determined in consultation with the Environmental Consultees 2.7 Baseline and operational monthly monitoring of aquatic bird numbers on defined sectors of the Hayle estuary at low water and high water, to provide data on operational Phase impacts (particularly disturbance and effects of sluicing), with the baseline survey to be undertaken during October to February inclusive prior to the commencement of the first-phased harbour works, and two operational surveys to commence following completion of the relevant works, the timing of these subsequent surveys to be determined in consultation with the Environmental Consultees. 3 MITIGATION COMPONENTS RELEVANT TO OPERATIONAL ACTIVITIES WITHIN THE DEVELOPED HARBOUR, COMPRISING: 3.1 Ornithological mitigation to include, where appropriate, design and management measures to reduce sources of operational related disturbance to birds within the Hayle Estuary & Carrack Gladden SSSI and RSPB Hayle Nature Reserve and monitoring of resultant control measures. 3.2 Sluicing regime to be determined in consultation with Environmental Consultees. 3.3 Changes to the sluicing regime in the event of significant changes to invertebrate populations which are attributable to sluicing, fish habitats or aquatic bird populations. 3.4 Monitoring of saltmarsh vegetation communities at Copperhouse Pool and Wilson’s Pool once prior to introduction of sluicing followed by two further surveys every 2 years post-introduction of sluicing for a period of 4 years with changes to the sluicing regime in the event of deterioration attributable to sluicing. 3.5 Definition of studies to determine the likelihood of algal bloom formation in impounded waters at Penpol Creek and appropriate mitigation. 4 MITIGATION COMPONENTS RELEVANT TO OPERATIONAL IMPACTS ON TERRESTRIAL HABITATS, COMPRISING: 4.1 Management of public access and habitats on the Triangular Spit to protect and where appropriate enhance petalwort colonies there. 4.2 Post-completion follow-up monitoring surveys of bat mitigation work. 4.3 Post-completion follow-up monitoring surveys of reptile mitigation work. 4.4 Mitigation of impact on BAP bird species, linnet, song thrush and house sparrow. 4.5 Management of approximately 280 metres of new Cornish hedges. 4.6 Post-completion monitoring of public use of access paths provided to Hayle Beach. 5 OTHER SURVEYS 5.1 The Council may reasonably require the Developer to undertake within the approved ecological management plan further surveys and implement any further associated mitigation in addition to the requirements set out in this Schedule 2 but the costs of any such additional survey or mitigation work shall be subject to the Legal.13319579.7/SBEA/21151.00019 45 25.06.10 provisions of Clause 11.23 by reference to relevant estimates set out in Tables 1 and 2 of Schedule 2 (subject to Indexation). Legal.13319579.7/SBEA/21151.00019 46 25.06.10 Table 2 Costs associated with ecological monitoring / mitigations items in Schedule 2, sections 2-4 Item Description Assumptions – level of mitigation / monitoring effort ING budget ceiling 2.1 Water quality monitoring regime. To be defined and agreed with Council and Environmental Consultees £10,000 2.2 Baseline & operational fish surveys Pre-construction baseline survey plus two surveys post-construction (TBC with consultees) £37,662 2.3 Invertebrate & algae surveys on new Fishermen’s Harbour Post-construction surveys, annual for up to 5 years £3702 2.4 Baseline & operational surveys for marine algae plus two surveys Pre-construction baseline survey plus three surveys post-construction (TBC with consultees) £15,000 2.5 Baseline & operational surveys for aquatic invertebrates Pre-construction baseline survey plus two surveys post-construction (TBC with consultees) £198,461 2.7 Baseline & operational surveys for aquatic birds Pre-construction baseline survey plus two surveys post-construction (TBC with consultees); three surveys in total, for period Oct-Feb inclusive (i.e. 5 months) each year £62,093 3.1 Ornithological mitigation (design & management measures to reduce disturbance, with related monitoring) Precise measures to be defined; £30,290 – sum to serve item 4.1 also (mitigation needs will overlap) 2.6 Physical control measures may include scrub screen-planting, signage, barriers, footpath definition, development boundary treatments Management measures may include monitoring of disturbance issues, preemptive and responsive “policing” of harbour activities, environmental advice to harbour users All management actions to be resourced as required via the Hayle Harbour Master, in line with statutory duties including implementation of the Hayle Estuary Management Plan and the Hayle Harbour Environmental Enforcement Protocol 3.4 Monitoring of saltmarsh vegetation communities One pre-sluicing vegetation mapping survey and two post-sluicing surveys (over 4 years) £3,240 3.5 Definition of studies on algal bloom formation Specialist consultancy study £2,000 4.1 Management of public access on Triangular Spit Precise measures to be defined; examples include scrub management / planting, signage, barriers, footpath definition £30,290 - sum to serve item 3.1 also (mitigation needs will overlap) 4.2 Post-completion monitoring of bat mitigation work Monitoring of local bat distributions and use of mitigation habitats (eg. bat boxes) – survey needs to be defined by EPS* licence requirements £5,000 4.3 Post-completion monitoring of reptile mitigation work Monitoring of receptor site before and after translocation & inspection of a site @1 day over 50 refugia £6,000 Legal.13319579.7/SBEA/21151.00019 47 25.06.10 Item Description Assumptions – level of mitigation / monitoring effort ING budget ceiling 4.4 Mitigation of impact on BAP bird species Ecological input to landscape design of residential areas (Hilltop, Riviere Fields) to provide shrub / hedge habitat planting for affected bird species; provision of nest boxes £4,860 4.5 Management of 280m new Cornish hedges (this activity will also contribute to mitigation described under 4.4) Management of new hedge habitats (formative pruning, 1 day per year over three years) and provision of management advice leaflet for contractors £2,916 4.6 Post-completion monitoring of public use of access paths to Hayle Beach Summer and autumn surveys of path condition and quarterly (single-day) survey of visitor nos. on access paths; annual surveys for 3-year period post-completion (or biennial for 6 years) To be funded by contributions made within 11.3.1 &11.3.2 of this agreement All figures subject to Indexation Legal.13319579.7/SBEA/21151.00019 48 25.06.10 Schedule 3 Dispute Resolution Procedure Part 2 Appointment of the Expert 1 Interpretation (a) In this Schedule, the following expressions shall have the following meanings: (b) “Dispute” means a difference or dispute arising under or out of this Agreement; (c) “Dispute Resolution Procedure” means the procedure set out in this Schedule 3; (d) “Expert” means the person identified pursuant to Paragraph 3.2 of Part 1 of this Schedule 3 or such replacement as may be appointed for the time being pursuant to paragraph 4 Part 1 of this Schedule 3; (e) “Procedure Rules” means the rules of procedure contained in Part 2 of this Schedule 3 or as the same may be modified or amended from time to time. 2 Avoidance of Disputes (a) Any disagreement between the parties arising out of or connected with this Agreement shall unless the Council has taken enforcement action or initiated any court action against the Developer be referred to senior representatives (board members in the case of the Developer and Chief Officers in the case of the Council) of the parties in dispute who shall (within five Working Days of a notice from any party to the other) meet to attempt in good faith to resolve the dispute amicably on a full and final basis. (b) If the Council commence enforcement action or initiate court proceedings after a matter has been referred to the Dispute Resolution Procedure then the Dispute Resolution Procedure shall immediately discontinue and cease to have effect. 3 General 5.2 Identity of Expert (a) Any difference or question which relates to the construction of rights and liabilities of either party or to the terms or conditions to be embodied in any deed or document appertaining thereto shall be referred to a solicitor or barrister agreed upon by the parties or (in default of agreement) within 7 days of one party serving notice on the other calling for the appointment of an expert appointed at the request of either party by or on behalf of the Chairman from time to time of the Bar Council). (b) Any difference or question which relates to the value of any works or prevailing rents shall be referred to a chartered surveyor agreed upon by the parties (or in default of agreement within 7 days of one party serving notice on the other calling for the appointment of an expert appointed at the request of either party by or on behalf of the President from time to time of the Royal Institution of Chartered Surveyors). (c) Any difference or question which relates to methods of accounting or otherwise to matters (such as taxation) usually and properly within the knowledge of a chartered accountant shall be referred to a chartered accountant agreed upon by Legal.13319579.7/SBEA/21151.00019 49 25.06.10 the parties (or in default of agreement within 7 days of one party serving notice on the other calling for the appointment of an expert appointed at the request of either party by or on behalf of the President from time to time of the Institute of Chartered Accountants in England and Wales). (d) If the parties shall fail to agree as to the nature of the difference or question then it shall be referred to a solicitor or barrister agreed upon by them (or in default of agreement either of them may apply to the Chairman from time to time of the Bar Council to appoint a solicitor or a barrister) to decide in relation to any such matter which of the preceding Clauses is applicable thereto and the decision of such solicitor or barrister acting as an expert shall be final and binding. 5.3 Appointment of Expert (e) If a Dispute arises the Dispute shall be referred and decided by the Expert acting as an independent expert but not as an arbitrator. 4 The Expert (a) The Expert shall conduct the reference and make his decision in accordance with the Procedural Rules. (b) In the event that the Expert shall become unable or unwilling to act either at all or on such occasions or for such periods as to render it necessary or expedient for a replacement to be appointed then the parties shall agree and appoint such replacement. (c) In the event of disagreement between the parties as to the necessity or expediency of appointing a replacement then the matter shall be referred to Dispute Resolution pursuant to Clause 19.11 (d) No person shall be eligible to act as a replacement for the person originally appointed as the Expert unless his qualifications and experience are such that he could originally have been appointed as the Expert. (e) If an appointment is made pursuant to paragraph 3 of Part 1 of this Schedule 3 and if the period between the date of appointment and the date that a decision ought to be made by the Expert pursuant to Procedural Rule 6.1 is less than 14 days then the parties shall be deemed to have agreed that the time limit under Procedural Rule 6.1 shall be extended by such number of days as may be necessary to give the replacement 14 days from the date of his appointment to consider such reference. Part 1 Procedural Rules 1 Commencement (a) Either party may commence a reference under these rules by serving a notice upon the Expert. (b) A notice served under Procedural Rule 1.1 shall include: Legal.13319579.7/SBEA/21151.00019 50 25.06.10 (c) a concise summary of the nature and background of the Dispute and the issues arising; (d) a statement of the relief claimed; (e) a statement of any matters which the parties have already agreed in relation to the procedure for determination of the Dispute; and (f) copies of all documents which have an important and direct bearing on the issues on which the claimant intends to rely (or a list of such documents if they are already in the possession of the recipient). 2 PROCEDURE (a) The Expert shall have the widest discretion permitted by law to determine the procedure for his reaching a decision and to ensure the just expeditious and economical determination of the Dispute after such investigation as the Expert may think fit provided that the Expert shall adopt all and any procedures agreed by the parties to be appropriate for determination of a Dispute including (without prejudice to generality) the Procedural Rules. (b) Subject to the agreement of the parties the Expert may proceed to determine the Dispute on a documents-only basis. (c) The Expert shall fix the date, time and place of any meetings hearings or inspections which he deems appropriate and shall give the parties reasonable notice thereof. (d) The Expert may in advance of any hearing submit to the parties a list of questions which he wishes them to address. (e) All meetings hearings or inspections shall be in private unless the parties agree otherwise. (f) Each party may appoint representatives to appear on its behalf at a hearing subject to such proof of authority as the Expert may require. 3 Witnesses (a) Before any hearing the Expert may require a party to give notice of the identity and qualifications of witnesses he wishes to call and may require the parties to exchange statements of evidence to be given by the witnesses within a period to be specified by the Expert in advance of the hearing. (b) Any witness who gives oral evidence at a hearing may be questioned by each of the parties or their representatives under the control of the Expert and the Expert may put questions to the witness at any stage of the examination of the witness. (c) (Subject to Procedural Rule 3.4) the Expert may allow the evidence of a witness to be presented in written form either as a signed statement or by a duly sworn affidavit. (d) Either party may make representations that such a witness should attend for oral examination at a hearing and if the Expert so orders and the witness thereafter fails to attend the Expert may place such weight on the written evidence as he thinks fit or exclude it altogether. Legal.13319579.7/SBEA/21151.00019 51 25.06.10 4 Documents-Only Procedure (a) (Subject to Procedural Rule 6.1) if it is decided not to hold a hearing the following rules shall apply. (b) The Expert shall allow each party 21 days (or such other period as the Expert deems appropriate) from the date of the determination that the Dispute shall be determined on a documents-only basis pursuant to Procedural Rule 2.2) Procedural Rule 4.1 to submit representations to the Expert on his determination. (c) The Expert shall allow each party 10 days (or such other period not exceeding 28 days as the Expert deems appropriate) from the expiry of the period for submission of representations under Procedural Rule 4.2 to submit counter representations to the Expert. (d) If at the expiry of either of the periods referred to in Procedural Rules 4.2 and 4.3 no representations have been received from a particular party the Expert shall be at liberty on each occasion to refuse to accept any late representations and to reach his decision without considering them. (e) Without prejudice to Procedural Rules 4.2 to 4.4 if the Expert commissions independent expert evidence and intends to rely upon it in reaching his decision he shall provide a copy of such evidence to each party and allow each the opportunity to make representations upon it within 10 days. (f) The Expert shall notify the parties of his decision. 5 Powers of the Expert (a) Without prejudice to Procedural Rule 2.1 and to any powers which may be given to the Expert elsewhere in these Rules or in this Undertaking the Expert shall have the power: (b) to examine any witness or conduct an inspection of any property or thing relevant to the Dispute in the absence of any or any other representative of the parties or any other person; (c) to commission expert evidence to be prepared and adduced by a witness independent of the parties provided that (unless otherwise agreed by the parties to the Dispute) no more than two such witnesses may be called; (d) at any time to permit any party to amend any submission; (e) to continue with his determination notwithstanding a failure by any party to comply with these Rules; (f) to order a party to produce to the other party and to the Expert for inspection, and to supply copies of any documents in that party’s possession custody or power which the Expert (whether following representations or on his own initiative) determines to be relevant; (g) to order a party to answer interrogatories on the application of the other party; (h) to order the inspection, preservation or storage of any data or document relevant to the Dispute under the control of any party; Legal.13319579.7/SBEA/21151.00019 52 25.06.10 (i) to make orders authorising any sample to be taken, or any observation to be made, or (with the agreement of the parties) experiment to be tried which may, in the Expert’s discretion, be necessary or expedient for the purpose of obtaining full information or evidence; (j) to require the parties to provide a written statement of their respective cases in relation to particular issues, and/or to provide a written answer and to give reasons for any disagreement; (k) to open up, revise and review any certificate, opinion, instruction, determination or decision of any person; (i) to take the initiative in ascertaining the facts and the law; and (ii) to convene a hearing to determine any preliminary issue PROVIDED THAT: (iii) he shall give each party not less than 10 days notice of the hearing; (iv) on giving the notice the Expert shall specify the procedure to be adopted at and in advance of the hearing; and (v) the hearing shall be limited to the preliminary issue. 6 Decisions (a) The Expert shall make his decision as soon as possible but within 28 days (subject to an extension of 14 days at the request or with the agreement of the party who referred the Dispute or if a hearing into preliminary issues is convened pursuant to Procedural Rule 5.1.12) of the date of reference of a Dispute or within such other period as the parties may agree in writing PROVIDED THAT if the period for decision is other than 28 days and the Expert elects to reach his decision via a documents only procedure under Procedural Rule 4 the timescales referred to in Procedural Rule 4 shall be varied in such manner as the Expert notifies to the parties or in default of such notification in such equal proportions as shall be necessary for the relevant decision to be made in the time available. (b) The Expert shall make his decision in writing and the decision shall be dated and shall be signed by the Expert. (c) Unless the parties otherwise agree reasons for the decision and reasons for dissent shall be given by the Expert. (d) The Expert may allow interest on any sum which is the subject of a decision at such rates as the Expert determines to be appropriate. (e) (Subject to complying with the timescales in this Procedural Rule 6) the Expert may make separate final decisions on different issues at different times. (f) Subject to Clause 12.13.2 the Expert’s decision shall be final and binding on the parties as from the date upon which it is made. 7 Exclusion of Liability (a) . Legal.13319579.7/SBEA/21151.00019 53 25.06.10 8 Notices (a) Unless otherwise ordered by the Expert or agreed between the parties all notices required by these Rules shall be in writing. (b) A notice under Procedural Rule 1.1 shall be served by first class post or delivered by hand and all other notices and written communications shall be sent by first class post fax or delivered by hand. (c) Unless the intended recipient proves otherwise: (d) documents sent by first class post shall be deemed to have been received two working days after posting; (e) faxes shall be deemed to have been received at the time transmission ceases; (f) by hand deliveries shall be deemed to have been received at the time of delivery to the address stated on their face; and (g) references in these Procedural Rules to receipt of documents shall be construed accordingly. (h) Notices shall be effective from the time of deemed receipt and periods of time measured with reference to the giving sending or serving of a document shall be measured with reference to the time that document is received. (i) Unless otherwise ordered by the Expert or agreed between the parties, all notices and other documents received on a day which is not a working day or after 6.00pm on any working day shall be deemed to have been received on the following working day. In every case in which a notice is sent to the Expert a copy thereof shall be sent contemporaneously by the same method of service to the other party. Legal.13319579.7/SBEA/21151.00019 54 25.06.10 Schedule 4 Carnsew Sluice Legal.13319579.7/SBEA/21151.00019 55 25.06.10 Executed as a deed by THE CORNWALL COUNCIL whose Common Seal was hereunto affixed in the presence of: Authorised Officer Executed as a deed by ING RED UK (HAYLE HARBOUR) LIMITED acting by two directors or a director and its secretary: Director Director/Secretary Legal.12837841.4/SBEA/21151.00019 56
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