Without Prejudice and Subject to Contract by gio15356

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									                                   Without Prejudice
                                 and Subject to Contract




                     Agreement for Transfer of Street Lighting



THIS AGREEMENT is made the ...... day of .........…………BETWEEN



(1)    Norfolk County Council of County Hall Martineau Lane Norwich NR1 2DH
       (‘the County’) and


(2)    [   ] District Council of (address) ) (‘the District’)


Background
(A) The District is a lighting authority and wishes to pass responsibility for street
lighting on the highway (as identified in this Agreement) to the County so that the
County may include such street lighting within a Private Finance Initiative Project
for the improvement of street lighting in Norfolk


(B) The County is the highway authority for Norfolk and wishes to accept the
District's street lighting on the highway (as identified in this Agreement) so that it
may be included within the Project mentioned at (A) above


THE PARTIES AGREE as follows:


1      Definitions and Interpretation

In this Agreement the following words have the following meanings and the
following provisions for interpretation apply:

1.1    "Additional Street Lights" means any Street Lights added to the Street
       Lighting System in accordance with clause 5;

1.2    "Additional    Transfer    Payment"      means      a    payment   (calculated   in



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      accordance with clause 5 and Schedule 3) to be made by the District as a
      result of the inclusion of any Additional Street Lights in the Street Lighting
      System;

1.3   "Core Street Lights" means Street Lights in the Street Lighting System
      which are over twenty five years old on [           ] up to a maximum of [     ]
      per cent of the Street Lights in the Street Lighting System (being those
      that it is intended to replace to the Replacement Standard during the
      Replacement Phase)

1.4   "Liabilities" means any and all liabilities of the District in relation to:

             (a) any claims (actual or potential) by any person (whether in
                 contract tort or otherwise) arising from the performance or non-
                 performance of the District's responsibilities as lighting authority
                 for the Street Lighting System

             (b) any contract made in connection with the Street Lighting System
                 (including but not limited to contracts for the provision of repair
                 and maintenance for or the supply of electricity to the Street
                 Lighting System)

             (c) the terms of any Way-leaves and Easements

             (d) any other matter related to the provision of the Street Lighting

                 System

      in so far as those liabilities referred to at clause 1.4 (a) to (d) above relate
      to the period prior to the Transfer Date

1.5   "PFI Contract" means the contract for the PFI Project which it is intended
      shall be negotiated and executed between the County and the Successful
      Bidder in connection with the PFI Project

1.6   "PFI Project" means the Street Lighting PFI Project proposed by the
      County based on the approval at Expression of Interest Stage by the
      Department for Transport in a letter dated 19 December 2003 the purpose



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       of which is to improve the standard of street lighting on the highway within
       Norfolk;

1.7    "Replacement Phase" means the period of five years and six months from
       the date on which the PFI Contract is executed;

1.8    "Replacement Standard" means the replacement of a Street Light in the
       Street Lighting System with a Street Light having a white light source;

1.9    "Street Lights" means individual lighting columns on the highway and
       associated components including lamps lanterns brackets electronic
       controls and wiring together with all cabling between such lighting columns
       and the electricity supply company network;

1.10   "Street Lighting System" means the Street Lights set out in Schedule 1;

1.11   "Successful Bidder" means the organisation or consortium which is
       chosen by the County as the contractor for the PFI Project and with whom
       negotiations are completed for the PFI Contract;

1.12   "Transfer" means the passing of legal and beneficial ownership free of
       encumbrances       (and      references     to      "Transfers",   "Transferred",
       "Transferring" and like words shall be construed accordingly);

1.13   "Transfer Date" means the date set out in clause 3;

1.14   "Transfer Payment" means the sum set out in clause 4;

1.15   "Way-leaves and Easements" means any way-leaves, easements, access
       rights, support rights or other such rights as are in place in connection with
       the Street Lighting System including but not limited to those identified in
       Schedule 2

1.16   In this Agreement, unless the context otherwise requires:




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            1.16.1 references to clauses and schedules are references to
                   clauses of and schedules to this Agreement;
            1.16.2 the singular shall include the plural and vice versa;
            1.16.3 words importing one gender shall include all genders;
            1.16.4 the clause headings are for convenience of reference only
                   and shall not affect the construction or interpretation of this
                   Agreement;
            1.16.5 references to any person include references to any human
                   being, company, body corporate, association, joint venture,
                   partnership, trust and any legal entity capable of suing and
                   being sued;
            1.16.6 references to any statute, enactment, order, statutory
                   provision or statutory instrument or other similar instrument
                   include a reference to that statute, enactment, order.
                   statutory provision or statutory instrument or other similar
                   instrument together with all rules and regulations made
                   under it or them all as from time to time amended,
                   consolidated or re-enacted



2     Transfer

2.1   The District hereby agrees that:

      2.1.1 the Street Lighting System shall transfer; and

      2.1.2 all Way-leaves and Easements shall Transfer (by assignment
            novation or otherwise);

      to the County on the Transfer Date

2.2   In consideration of the payment of the Transfer Payment (and any
      Additional Transfer Payment if applicable) in accordance with clause 4 the
      County hereby agrees to accept the Transfer of the Street Lighting System
      and the Way-leaves and Easements on the Transfer Date



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2.3   The parties agree that the Liabilities shall not be Transferred to the County
      by virtue of the Transfers set out at clause 2.1 and shall remain the
      responsibility of the District. The parties further agree that no contract
      made in connection with the Street Lighting System (including but not
      limited to contracts for the provision of repair and maintenance for or the
      supply of electricity to the Street Lighting System) and no other matter
      related to the provision of the Street Lighting (with the exception of the
      Way-leaves and Easements) shall Transfer to the County



2.4   To avoid doubt the parties agree that any on-going payments due in
      accordance with the Way-leaves and Easements shall be apportioned
      between them on a time basis and the District shall be responsible for
      such payments up to the Transfer Date and the County shall be
      responsible for such payments from the Transfer Date. This shall not
      apply in respect of any payment due as a result of a breach of the terms of
      the Way-leaves and Easements by the District which shall be payable in
      full by the District



3     Transfer Date

3.1   The Transfer Date shall be the date on which the PFI Contract is executed
      by the County and the Successful Bidder



4     Transfer Payment

4.1   The Transfer Payment shall be the sum of £[           ]

4.2   The District shall pay:

      4.2.1   the Transfer Payment; and

      4.2.2 any Additional Transfer Payment

              to the County within thirty days from the Transfer Date


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5     Increase or Decrease in the Street Lights

5.1   The parties agree that:


      5.1.1 if the number of Street Lights in the Street Lighting System
            decreases between the date of this Agreement and the Transfer
            Date    (otherwise than in accordance with clause 6) Schedule 1
            shall be amended accordingly upon receipt of a notice in writing
            from the District to the County setting out the number and location
            of the Street Lights in the Street Lighting System so affected but
            that there shall be no reduction in the Transfer Payment


      5.1.2 if the District wishes to include any Additional Street Lights in the
            Street Lighting System prior to the Transfer Date the District must
            first obtain the written consent of the County and the following
            procedure shall apply:
         5.1.2.1   the District shall notify the County in writing setting out the
                   number of Additional Street Lights their location and
                   specification and shall supply any additional information that
                   the County may require
         5.1.2.2   the County shall notify the District within 28 days of receipt of
                   all necessary information whether the Additional Street
                   Lights may be included in the Street Lighting System and the
                   Additional Transfer Payment which shall be payable in
                   accordance with Schedule 3
         5.1.2.3   if the District wishes to proceed with the Transfer of
                   Additional     Street   Lights   and   pay   the   corresponding
                   Additional Transfer Payment it shall notify the County to this
                   effect in writing within 28 days of receipt of the notice in sub-
                   clause 5.1.2.2



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         5.1.2.4     upon receipt of the notice in sub-clause 5.1.2.3 the
                     Additional Street Lights shall be added to the Street Lighting
                     System and this Agreement shall be deemed amended
                     accordingly


      5.1.3 The District shall pay the Additional Transfer Payment in respect of
            Additional Street Lights



6.    Variation and Termination

6.1   If the PFI Contract is not executed by 31 December 2007 the parties shall
      review the Transfer Payment and shall use their reasonable endeavours
      to reach agreement on any variation to the Transfer Payment

6.2   Where the parties agree a variation to the Transfer Payment they shall
      jointly sign a notice of variation stating the revised Transfer Payment and
      the Transfer Payment so stated shall be deemed incorporated into this
      Agreement in place of the previous Transfer Payment

6.3   If the parties do not agree on any variation to the Transfer Payment within
      two months from the 31 December 2007 either party may terminate the
      Agreement by giving one month’s notice in writing to the other

6.4   Where the PFI Contract is not executed by any anniversary of 31
      December 2007 (and this Agreement has not been terminated) the
      provisions of sub-clauses 6.1 to 6.3 shall apply so as to provide for a
      review of the then current Transfer Payment and dates for review,
      variation and or termination shall be amended accordingly

6.5   If in the County’s reasonable opinion it is necessary (prior to the Transfer
      Date) to:

            (a) reduce the number of Street Lights in the Street Lighting System
                  (including the number of Core Street Lights); and/or

            (b) vary the Replacement Standard


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      the County shall notify the District in writing of this opinion and the reason
      for it and the parties shall use their reasonable endeavours to agree the
      terms of such variation(s) and any consequent variation to the Transfer
      Payment

6.6   If the parties reach agreement on any variation in accordance with clause
      6.5 above they shall jointly sign a notice of variation stating the terms of
      the variation(s) (including any revised Transfer Payment) and the
      variation(s) so stated shall be deemed incorporated into this Agreement in
      place of the previous provisions on such matters

6.7   If the parties do not agree on any variation to the Agreement proposed in
      a notice under clause 6.5 within two months from the date of service of
      such notice either party may terminate the Agreement by giving one
      month’s notice in writing to the other

6.8   If in the County’s reasonable opinion it is necessary or desirable to
      terminate this Agreement prior to the Transfer Date in order to ensure the
      affordability of the PFI Contract the County may terminate the Agreement
      by giving one month’s notice in writing to the District



7     Obligations and Warranties of the County

7.1   The County warrants that it has full power to enter into and perform this
      Agreement and has obtained all necessary approvals and consents to do
      so

7.2   The County agrees to:

      7.2.1 maintain the Street Lighting System at its own expense from the
             Transfer Date in accordance with its street lighting powers;

      7.2.2 include the Street Lighting System in the PFI Project;

      7.2.3 use its reasonable endeavours to ensure that the PFI Project
             proceeds and that the PFI Contract is executed;



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      7.2.4 use its reasonable endeavours to procure that the Core Street
            Lights are replaced in accordance with the Replacement Standard
            during the Replacement Phase provided that this obligation shall
            only apply if the PFI Project proceeds and the PFI Contract is
            executed and shall further be subject to the provisions of clause 7.3

7.3   If the PFI Contract is terminated early for any reason the Council agrees to
      use its reasonable endeavours to replace or complete the replacement of
      the Core Street Lights to the Replacement Standard as soon as
      reasonably practicable provided that this obligation shall only apply to the
      extent that the County retains the benefit of central government PFI
      credits for the PFI Project. Where the County does not retain the benefit
      of PFI credits from central government for the PFI Project or where such
      credits are reduced the County may (acting reasonably) reduce the
      number of Street Lights to be replaced and/or vary the Replacement
      Standard



8     District Obligations and Warranties

8.1   The District hereby agrees and warrants that:

      8.1.1 it has full power to enter into and perform this Agreement and has
            obtained all necessary approvals and consents to do so and that it
            is the legal and beneficial owner of the Street Lighting System and
            shall remain so until the Transfer Date and it is empowered and
            entitled and shall remain empowered and entitled to Transfer the
            Street Lighting System and the Way-leaves and Easements to the
            County on the Transfer Date free from any encumbrances (except
            the Way-leaves and Easements)


      8.1.2 the Street Lighting System comprises all the Street Lights on the
            highway in the District's area and the number of Street Lights in the



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       Street Lighting System over twenty five years old on [                  ]
       represent no more than [          ] per cent of the total Street Lighting
       System


8.1.3 the Way-leaves and Easements comprise all of the way-leaves
       easements consents and other such rights that the District has
       entered into in connection with the Street Lighting System and shall
       be sufficient to permit the County and the Successful Bidder to
       properly access and maintain the Street Lighting System from the
       Transfer Date and no other way-leaves easements consents or
       other such rights shall be required or outstanding to permit the
       County and the Successful Bidder to properly access and maintain
       the Street Lighting System


8.1.4 in so far as the Way-leaves and Easements cannot be assigned
       novated or otherwise transferred to the County without the consent
       of a third party the District shall obtain such consent in writing from
       any such third party prior to the Transfer Date and shall provide the
       County with a copy of such consent


8.1.5 it is not involved in any litigation arbitration mediation administrative
       or criminal proceedings whether as claimant defendant or otherwise
       and no litigation arbitration mediation administrative or criminal
       proceedings by or against the District are pending and the District
       has not received notice of any claim likely to give rise to any such
       litigation   arbitration   mediation     administrative    or   criminal
       proceedings


8.1.6 it is not in default of its obligations under any Way-leaves and
       Easements and shall ensure that no such default arises at any time
       prior to the Transfer Date



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    8.1.7 it shall repair and maintain the Street Lighting System (including
           where necessary replacement) in accordance with the Code of
           Practice for Maintenance Management “Delivering Best Value in
           Highway Maintenance” issued by the DETR in July 2001 (as
           amended or reissued from time to time) until the Transfer Date and
           has in place and it shall maintain in place until the Transfer date
           such contracts as are necessary for the repair replacement and
           maintenance of the Street Lighting System to such a standard and
           it is not in default of any contract in place in connection with the
           Street Lighting System and shall ensure that no such default arises
           at any time prior to the Transfer Date


    8.1.8 no person is wholly mainly or materially employed or engaged in
           connection with the Street Lighting System or shall be so employed
           or engaged at the Transfer Date (whether under a contract of
           service or a contract for services) and accordingly no person shall
           transfer to the County or the Successful Bidder pursuant to the
           Transfer of Undertakings (Protection of Employment) Regulations
           1981 (as amended) as a result of this Transfer Agreement


    8.1.9 all the warranties set out in clause 8 are true and valid in respect of
           the Street Lighting System at the date of execution of this
           Agreement and shall remain true and valid in respect of the Street
           Lighting System up to the Transfer Date




9   Indemnities


    The District hereby indemnifies the County against all costs demands
    expenses damages compensation fines and other liabilities which the



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       County may incur arising out of or in connection with any breach of the
       obligations and warranties set out at clause 8 above or any of its other
       obligations under this Agreement



10     Settlement of disputes


10.1   If any dispute arises in connection with this Agreement the County and the
       District shall attempt to settle it by mediation in accordance with the
       Centre for Effective Dispute Resolution ("CEDR") Model Mediation
       Procedure


10.2   To initiate a mediation, a party shall give notice in writing ("ADR notice") to
       the other party to the dispute requesting mediation in accordance with
       clause 10.1


10.3   Any mediation initiated in accordance with clause 10.2 shall start no later
       than 28 days after the date of the ADR notice

10.4   If the parties have not settled the dispute within 42 days from the date of
       the ADR notice the dispute shall be determined by legal proceedings


10.5   Nothing contained in this clause 10 shall restrict either party's freedom to
       commence legal proceedings to preserve any legal right or remedy or to
       terminate the Agreement


11     Third Parties
Nothing in this Agreement shall confer upon any person who is not a party to it
any right to enforce any of its provisions




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12     Notices


12.1   Any notice to be given under this Agreement shall be in writing and sent
       by first class post to the addresses of the parties given at the head of this
       Agreement


12.2   Correctly addressed notices sent by first class post shall be deemed to be
       delivered two working days after posting


                                    SCHEDULE 1
(set out details of Street Lights to be transferred)


                                   SCHEDULE 2

(list of way-leaves etc)

                                   SCHEDULE 3



(charges for Additional Street Lights)


( common seals) of the parties)




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