Forward Funding Agreement relating to land at Princes Rock, Embankment Road, Plymouth PL4 9HX

Concepts

• plymouth
• finance and insurance
• plymouth pl4 9hx
• embankment road
• forward funding agreement
• road
• land
• forward
• princes
• embankment

Location

Plymouth:

Description

This voluntary notice relates to arrangements governed by a proposed Forward Funding Agreement ("FFA") between the Council and Loc8 Developments (Plymouth 2) Limited ("Developer") in respect of land owned by the Council at Embankment Road, Plymouth and has been issued on that basis that such arrangements fall outside the remit of the Public Contracts Regulations 2015 for the reasons set out under section II.2.4 and Annex D1 of this notice.

Total Quantity or Scope

This voluntary ex ante transparency notice relates to arrangements governed by a proposed Forward Funding Agreement ("FFA") between the Council and LOC8 Developments (Plymouth 2) Limited ("Developer") in respect of a site owned by the Council at Embankment Road, Plymouth ("Site"). The Developer has identified an opportunity for a new hotel and three new food retail units to be built on the Site (the "Development"), in each case to meet the design/specification requirements (the "Specification") agreed through negotiation between the Developer and the respective hotel chain and food retail chain operators. The object of the FFA is to govern the provision of finance by the Council for the Development. The finance is to be provided by the Council in stages, conditional on certain Development milestones being met. The FFA envisages that the Developer will initially obtain planning permission for the relevant Development, but does not impose any binding obligation on the Developer to do so. The FFA also envisages that if satisfactory planning is achieved, the Developer will be the party entering into a building contract with a third party in relation to the relevant Development, but there is no binding obligation on the Developer to do so, nor otherwise to procure the carrying out of the relevant works. Consequently, the Developer would not be in breach of the FFA by virtue of choosing not to take steps to obtain the relevant planning permission nor, having obtained the relevant planning permission, choosing not to procure the carrying out of the relevant works. The FFA further envisages that the Council (in its capacity as owner of the Site) and the Developer will also enter an agreement for lease with each of the relevant hotel chain and food retail chain operators. Under each of these agreements for lease, the Developer will be required to use reasonable endeavours to obtain satisfactory planning permission for the respective development and once obtained, to design and carry out the relevant development. These obligations to develop are undertaken by the Developer for the benefit of the relevant hotel chain or food retail chain operator, as prospective tenant ("Tenant") of the relevant hotel/retail outlet and not for the benefit of the Council. Furthermore, those works have not been specified by the Council (being works which instead have been specified by the relevant tenants to meet their respective requirements), nor has the Council had nor will it have (outside of its separate capacity as local planning authority) any decisive influence on the type or design of those works.

Award Detail

CPV Codes

• 66000000 - Financial and insurance services

Legal Justification

Under Regulation 2 of the Public Contracts Regulations 2015 a public works contract means public contracts which have as their object any of the following:- (a) the execution, or both the design and execution, of works related to one of the activities listed in Schedule 2; (b) the execution, or both the design and execution, of a work; (c) the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work; The Council does not consider that the arrangements governed by the proposed Forward Funding Agreement (as described in section II.2.4 of this notice above) constitutes the procurement of a public works contract as defined above (or any other type of public contract) within the scope of the Public Contracts Regulations 2015 for the following reasons:- (i) The FFA does not place any enforceable legal obligation, either immediate or contingent, on the Developer to carry out any works (for the benefit of the Council or otherwise). The FFA envisages that the Developer will initially obtain planning permission, but does not impose any binding obligation on the Developer to do so. If satisfactory planning is achieved, the Developer will be the party entering into any building contract relating to the Development, but there is no binding obligation on the Developer to do so, nor otherwise to procure the carrying out of the relevant works. As for the associated agreements for lease between the Council, the Developer and the relevant tenant, the obligations undertaken by the Developer to carry out any works are for the benefit of the relevant tenant and not the Council. (ii) Furthermore, the works which the Forward Funding Agreement and the associated agreements for lease envisage may be carried out in the future by the Developer, are not works that have been specified by the Council (being works which instead have been specified by the relevant tenants to meet their respective requirements), nor has the Council had nor will it have (outside of its separate capacity as local planning authority) any decisive influence on the type or design of those works.

Other Information

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