(2)                                                [(registered number) [COMPANY NUMBER]) whose registered office is at]                                               (“The Landowner”) [and]

(3)      [NAME  OF  LENDER]  [(registered  number  [COMPANY  NUMBER])  whose registered office is at] [of] [ADDRESS] (“The Lender”)

BACKGROUND

(A)     For the purposes of the 1990 Act the Council is the local planning authority for the area within which the Site is located and the person who is entitled to enforce the obligations contained in this Agreement

(B)     The Landowner is the freehold owner of the whole of the Site [subject only to the Security but otherwise] free from encumbrances which would prevent the Landowner entering into this Agreement

(C)     Pursuant to the Planning Application the Landowner has applied to the Council for planning permission for the Development

(D)     On the (                             ) the Council’s Planning Committee resolved to grant planning permission for the Development which is subject to the Landowner entering into this Agreement

(E)     The parties have agreed to enter into this Agreement with the intention that the obligations contained in this Agreement may be enforced by the Council against the Landowner [the Lender] and their respective successors in title

OPERATIVE PROVISIONS

1.       INTERPRETATION

1.1     In  this  Agreement  the  following  words  and  expressions  have  the  following meanings

“1990 Act” - the Town and Country Planning Act 1990

“the Development” -  The development of the Site for the erection of [________________]

“Implementation Notice” - means  a  written  notice  to  be  in  the  form attached at Appendix 1 to be served by the Landowner on the Council not later than 5 working days prior to commencement of the Implementation Works

“Implementation Works” - Any    works    to    implement    the    Planning Permission by the carrying out of a material operation as defined by Section 56(4) of the 990 Act save that in determining if a material operation has been carried out there shall be disregarded any works involved in site investigations or surveys

“Approved Travel Plan” - the  Travel  Plan  approved  by  the  Council  in writing and which is to be implemented by the Landowner  in   accordance   with   the   terms specified therein

“Index linked” - means  the  “All  Items”  Index  of  retail  prices issued by the National Statistics Office or any government department upon which duties in connection with the compilation and maintenance of such Index shall have been devolved  If  the  basis  of  computation  of  the Index shall change any official reconciliation between the two bases of computation published by the National Statistics Office (or any government department upon which duties in  connection with  compilation  and maintenance of the Index have devolved) shall be binding upon the parties hereto and shall be applied in adjusting the application of the Index hereto In the absence of such official reconciliation such adjustments shall be made to the figures of the Index as to make it correspond as nearly as possible to the previous method of computation and such adjusted figures shall be used to the exclusion of the actual published figures (until officially reconciled figures are published) and in the event of a dispute regarding such adjustments the decision of the Council shall be final

“Monitoring Fee” - The sum of [____________] comprising the Monitoring Fee paid to the Council to ensure that the Approved Travel Plan is implemented in accordance with the timetable set out therein and which sum shall be indexed linked

“the Plan” - The plan attached to this Agreement numbered one

“the Planning Application” - An application for planning permission for the Development made by the Landowner on _____________ carrying the reference ________________

“Planning Permission” - the planning permission which may be granted in pursuance of the Planning Application [in the form set out in Schedule 1]

“the Security” - A legal charge of the Site dated ______________ made between (1) the Landowner and (2) the Lender

“the Site” - The freehold property known situate at ______________ and registered at HM Land Registry under Title Number(s) ______________ and shown for identification edged red on the Plan

“Travel Plan” - The Travel Plan to be submitted pursuant to the provisions of Schedule 2

“Travel Plan Default Sums” - those payments to be made to the Council if the Landowner fails to implement the Approved Travel Plan in accordance with the timetable contained therein and which sums shall be index linked and more particularly specified in the Approved Travel Plan

“the Title Number(s)” - [TITLE NUMBER(S)]

“Working Day(s)” means Mondays to Fridays (excluding days that in England and Wales are public holidays) that in England and Wales are public holidays) inclusive

1.2     In this Agreement

1.2.1  the clause headings do not affect its interpretation

1.2.2  unless otherwise indicated references to clauses and Schedules are to clauses of and Schedules to this Agreement and references in a Schedule to a Part or paragraph are to a Part or paragraph of that Schedule

1.2.3  references to any statute or statutory provision include references to

 1.2.3.1          that  statute  or  statutory  provision  as  from  time  to  time amended extended re-enacted consolidated or replaced and

1.2.3.2          any  orders  regulations  instruments  or  other  subordinate legislation made under that statue or statutory provision whether before or after the date of this Agreement

1.2.4  references to the Site include any part of it

1.2.5  references to any party in this Agreement include the successors in title of that party   In addition references to the Council include any successor local planning authority exercising planning powers under the 1990 Act

1.2.6  “including” means “including without limitation”

1.2.7  any covenant by the Landowner  or the Lender not to do any act or thing includes a covenant not permit or allow the doing of that act or thing

1.2.8  where two or more people form a party to this Agreement the obligations they undertake may be enforced against them all jointly or against each of them individually and

1.2.9  if any provision is held to be illegal invalid or unenforceable the legality validity and enforceability of the remainder of the Agreement is to be unaffected

1.3     The  parties  to  this  Agreement  do  not  intend  that  any  of  its  terms  will  be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it

2.       EFFECT OF THIS AGREEMENT

2.1     This Agreement is made pursuant to Section 106 of the 1990 Act  To the extent that they fall within the terms of Section 106 of the 1990 Act the obligations contained in this Agreement are planning obligations for the purposes of Section

106 of the 1990 Act and are enforceable by the Council

2.2     To the extent that any of the obligations contained in this Agreement are not planning obligations within the meaning of the 1990 Act they are entered into pursuant to the powers contained in   Section 111 Local Government Act 1972

Section 2 Local Government Act 2000 and all other enabling powers

2.3     Nothing in this Agreement restricts or is intended to restrict the proper exercise at any time by the Council or any of its statutory powers functions or discretions in relation to the Site or otherwise

2.4     This Agreement will be registered as a local land charge by the Council

3.       COMMENCEMENT

3.1     The provisions of this Deed shall have immediate effect upon the completion of this Deed SAVE FOR clauses 4.1 and 4.2 and 4.3 that shall only have effect upon the date upon which the Planning Permission is granted

4.       OBLIGATIONS

4.1     The Landowner covenants with the Council not to carry out any Implementation

Works before the service of the Implementation Notice

4.2     The  Landowner  agrees  with  the  Council  to  perform  and  comply  with  the obligations set out in Schedule 2 in relation to the Development

4.3     Any  notice  consent  or  approval  to  be  given  pursuant  to  the  terms  of  this Agreement by any party shall not be unreasonably withheld or delayed and the parties to this Agreement hereby agree to act reasonably in carrying out their functions obligations and covenants as described in this Agreement

4.4     No person will be liable for any breach of the terms of this Agreement occurring after the date on which they part with their interest in the Site or the part of the Site in respect of which such breach occurs but they will remain liable for any breaches of this Agreement occurring before that date  Neither the reservation of any rights or the inclusion of any covenants or restrictions over the Site in any transfer of the Site will constitute an interest for the purposes of this clause 4.4

5.       TERMINATION OF THIS AGREEMENT

5.1     This Agreement will come to an end if

5.1.1 the  Planning  Permission  is  quashed  or  revoked  before  any Implementation Works are carried out so as to render this Agreement or any part of it irrelevant impractical or unviable

5.1.2  the Planning Permission expires before any Implementation Works are carried out

5.2     Where the Agreement comes to an end under clause 5.1

5.2.1  the  Council  will  on  the  written  request  of  the  Landowner    after  the obligations on the part of the Landowner   contained herein have been fulfilled issue confirmation thereof and   thereafter vacate or cancel the entry  made  in  the  Local  Land  Charges  register  in  relation  to  this Agreement or otherwise to record the fact that it has come to an end and no longer affects the Site

6.       LENDER’S CONSENT

6.1     The Lender consents to this Agreement being entered into with the intention that notwithstanding Section 104 Law of Property Act 1925 its interest in the Site will be bounded by the terms of this Agreement as if it had been executed and registered as a local land charge before the execution of the Security

6.2     Notwithstanding clause 6.1 the Lender will not incur any liability for any breach of the obligations contained in this Agreement unless and until it becomes a mortgagee in possession of the Site or appoints a receiver or administrative receiver under the Security or exercises its power of sale

7.       NOTICES

7.1     Any notice demand or any other communication served by any party under this Agreement is to be delivered by hand or sent by first class post pre-paid or recorded delivery PROVIDED ALWAYS the Implementation Notice shall only be validly served if it is delivered by way of recorded delivery

7.2     Any notice demand or any other communication served is to be sent to the following address of the parties or to such address as one party may notify in writing to the others at any time as its address for service

7.2.1  on the Council at the address set out above and

7.2.2  on the Landowner at the address set out above

7.3     Unless the time of actual receipt is proved a notice demand or communication sent by the following means is to be treated as having been served

7.3.1  if delivered by hand at the time of delivery

7.3.2  if sent by post on the second working day after posting or

7.3.3  if sent by recorded delivery at the time delivery was signed for

7.4     If a notice demand or any other communication is served after 4.00 pm on a working day or on a day that is not a working day it is to be treated as having been served on the next working day

7.5     For the avoidance of doubt where proceedings have been issued in the Courts of England and Wales the provisions of the Civil Procedure Rules must be complied with in respect of the service of documents in connection with those proceedings

8.       COSTS OF THIS AGREEMENT

8.1     Upon completion of this Agreement the Landowner is to pay to the Council the reasonable  and  proper  legal  and  officer  costs  in  the  sum  of    ………..  in connection with the preparation negotiation and completion of this Agreement

9.       ENFORCEMENT

9.1     This Agreement is to be governed by and interpreted in accordance with the law of England and Wales

9.2     The courts of England are to have jurisdiction in relation to any disputes between the parties arising out of or related to this Agreement   This clause operates for the benefit of the Council who retain the right to sue the Landowner   [or the Lender] and enforce any judgment against the Landowner  [or the Lender] in the courts of any competent jurisdiction

10.     LATE PAYMENT

If any payment due under any of the provisions of this Agreement is not made on or before the date upon which it is due (the “Due Date”) the party from whom it was due shall at the same time as making the payment to the other party pay interest at 3% above the base lending rate of the HSBC as at the Due Date for the period starting with the Due Date and ending with the date on which payment of the sum on which interest is payable is made

11.     ARBITRATION

Any differences and questions between the parties in connection with this Deed shall be referred for determination by an independent person in accordance with the following provisions: