Date 2016

(1) THE KENT COUNTY COUNCIL

AND

(2) TUNBRIDGE WELLS BOROUGH COUNCIL

AND

(3) SOUTHBOROUGH TOWN COUNCIL

THE COLLABORATION AGREEMENT

RELATING TO DEVELOPMENT OF

THE SOUTHBOROUGH HUB

The Kent County Council © 2016

County Hall

Sessions House

Maidstone ME14 1XQ

File DK.107889 Version dated 2106.2016

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THIS COLLABORATION AGREEMENT is dated 2016

BETWEEN:

(1) THE KENT COUNTY COUNCIL of Sessions House, County Hall, Maidstone, Kent ME14 1XQ (“KCC”); and

(2) TUNBRIDGE WELLS BOROUGH COUNCIL of Town Hall, Mount Pleasant Road, Tunbridge Wells, Kent TN1 1RS (“TWBC”)

(3) SOUTHBOROUGH TOWN COUNCIL of 137 London Road, Southborough, Tunbridge Wells, Kent TN4 0ND (“STC”)

(hereinafter collectively “the Owners” and independently “the Owner”)

WHEREAS:

(A) KCC is the registered proprietor of the KCC Land.

(B) TWBC is the registered proprietor of the TWBC Land.

(C) STC is the registered proprietor of the STC Land.

(D) The KCC Land, TWBC Land, STC Land and the Additional Land have been identified as having potential for development to form a customer focused hub outlet for various services and a residential development.

(E) The STC Option and the TWBC Option have been entered into independently of this Agreement and KCC intends contributing the KCC Land in order that KCC may deliver the Project.

(F) The Owners wish to collaborate in order to exploit the development potential of the Land to sell the Residential Development Land to a third party in order to fund the development of the Hub Land by the Developer as a cultural hub in accordance with the Accommodation Requirements.

(G) TWBC and STC have the benefit of option agreements (to be granted pursuant to the terms of the TWBC Option and STC Option) for the return of the TWBC Land and STC Land should Implementation not take place by the Expiry Date.

(H) KCC, TWBC and STC have agreed to enter into these arrangements and authorise the Project Board to take decisions jointly to deliver the Key Objectives and the Project, subject to reservation of decisions in relation to the Reserved Matters set out in clauses 1 & 8 of this Agreement.

NOW THEREFORE IT IS HEREBY AGREED BETWEEN THE OWNERS AS FOLLOWS:

1. DEFINITIONS

In this Agreement

1.1 the following words and expressions shall where the context so admits be deemed to have the following meanings:

“Accommodation Requirements”

The following minimum floor areas in respect of specific parts of the Hub :

Council Offices for use by STC – 105 m2

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Café – 60 m2

Hall – 375 m2

Library – 190 m2

within a tolerance of + or - 20% of the floor areas, more specifically identified in the Development Agreement or as are otherwise agreed by the Project Board

"Additional Land" The Tesco Land and the Lloyds Land.

"Authorised Representative"

The individual authorised by each Owner to sit on the Project Board.

“Commencement Date” The date upon which this Agreement is entered into.

“Developer” The party procured to construct the Hub with which the Lead Owner (acting on behalf of the Owners) will enter into the Development Agreement.

"Development Agreement"

The development agreement for the construction of the Hub as agreed by the Project Board.

“Expert” An independent expert appointed in accordance with Clauses 8.8 to 8.20 who shall be either a solicitor or surveyor (as appropriate) with not less than ten years' post qualification experience of the relevant subject matter.

"Expiry Date" The date of expiry of the Option Period;

"Hub" The development of the Hub Land to form a customer-focused hub outlet for cross agency services surgeries information self-help and routine advice and transactions, with access to visiting members of the public together with associated functions relevant to a town council including (for the avoidance of doubt) entertainment, football pavilion and maintenance/storage facilities, sports facilities, hall, medical centre, the town council offices, coffee shop, library ancillary to such outlet that satisfies the Accommodation Requirements and (with the approval of the Project Board) any other community uses or offices for use under B1 of the Town and Country (use Classes) Order 1987 together with retail units under A1-A5 of the Town and Country (use Classes) Order 1987.

"Hub Land" the Land and any Additional Land acquired by the Owners but excluding the Residential Development Land.

"Implementation" means the earlier of:

1) the date of disposal of the Residential Development Land; and

2) implementation of the Hub by the carrying out of any material operation within the meaning of Section 56 of the Town and Country Planning Act 1990

and "Implemented" and cognate expressions shall be

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interpreted in accordance with this definition.

"KCC Land" The land edged red on the Drawing Number TQ5842/7B

"Key Objectives" The Key Objectives for the Project, referred to in clause 1.2 of this Agreement.

"Land" The collective term for the KCC Land, TWBC Land and STC Land.

“Lead Owner” KCC.

"Tesco Land" The land registered under title number K262785 shown edged red on the Drawing Number TQ5842/7S owned by Tesco PLC.

"Option Period" The option period pursuant to the STC Option and the TWBC Option being the period of 5 years from and including 1 May 2015.

"Owner" An individual party to this Agreement.

"Owners" Each of the parties to this Agreement together.

"Plan" The Plan showing the location of the Land, Additional Land, Hub Land and Residential Development Land annexed hereto at Annexure A.

“Principles” The Project principles contained in clause 3.

"Project" The sale of the Residential Development Land and the development of the Hub as defined in more detail in Schedule 1.

"Project Board" The Authorised Representatives appointed by each Owner who will approve the management and delivery of the Project on behalf of the Owners.

“Reserved Matters” Approval of the form of Development Agreement, such approval not to be unreasonably withheld;

Termination of the Development Agreement with the Developer.

Any amendment to this Collaboration Agreement.

A decision that all of the Owners shall increase the Contributions already made as detailed in the Schedule 2 to this Agreement or commit the Project Board to any actual or contingent liability greater than the funds held by the Project Board but for the avoidance of doubt nothing shall prevent an individual Owner from increasing its Contribution should it wish to do so.

A decision that delivery of the whole of the Project is no longer viable or prudent.

"Residential Development"

The sale to a third party of the Residential Development Land at the open market value for residential use within classes C3 and/or C4 and a medical facility within class D1 of the Town and Country Planning (Use Classes) Order 1987 (as amended).

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"Residential Development Land"

Such land within STC Land and KCC Land having a minimum net developable area of 0.7 acres as is agreed by the Project Board.

"STC Land" The land registered under Title Numbers K773611

and TT18528

"STC Option" The option agreement relating to the STC Land dated 1st

May 2015 and made between STC (1) and KCC (2).

"Lloyd’s Land" The unregistered land shown edged red on the Drawing Number TQ5842/7R, owned by Lloyds Bank plc.

"TWBC Land" The land edged red on Drawing Number TQ5842/7V

and TQ5842/7T

"TWBC Option" The option agreements relating to the TWBC Land dated 1

st May 2015 between TWBC (1) and KCC (2).

"Working Days" any day from Monday to Friday (inclusive) which is not Christmas Day, Good Friday or a statutory bank holiday.

1.2 An obligation by an Owner not to do something includes an obligation not to permit it to be done.

1.3 Headings are for ease of reference only.

1.4 Unless the context requires otherwise, references to a schedule, clause or paragraph are references respectively to a schedule, clause or paragraph in this Agreement.

1.5 The schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the schedules.

1.6 A provision of this Agreement which is void or unenforceable shall be severed from all other provisions of this Agreement and the remaining provisions shall continue to have effect.

1.7 Reference to a statute or statutory instrument includes all subordinate legislation made under it and any re-enactment, amendment or consolidation of it which is for the time being in force (unless expressly provided otherwise).

1.8 Any references to includes, include or including are deemed to be followed by the words "without limitation".

1.9 Unless the context otherwise requires, "or" has both a conjunctive and a disjunctive meaning except where it is used in an expression involving the word "either" in which case it shall have only its disjunctive meaning.

1.10 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.11 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.12 A reference to writing or written excludes fax and e-mail.

1.13 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in

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breach of the provisions of this agreement) from time to time.

1.14 Unless this agreement otherwise expressly provides, a reference to the any land is to the whole and any part of such land.

2. KEY OBJECTIVES FOR THE PROJECT

2.1 The Owners agree the following Key Objectives:

2.1.1 For KCC to use reasonable endeavours as Lead Owner to enter into the Development Agreement and to Implement development of the Land and the Additional Land for the Project within the Option Period.

2.1.2 To minimise the up-front cost of the Project to the Owners.

2.1.3 To deliver the Project if financially viable in terms of initial capital and on a revenue basis which for the avoidance of doubt shall be deemed to be the case where both:

2.1.3.1 the sum of the Contribution detailed in Schedule 2 and the reasonably anticipated capital receipt from the Residential Development is equal to or greater than the reasonably anticipated capital cost of the development of the Hub; and

2.1.3.2 the reasonably anticipated revenue receipts from the Hub are equal to or greater than the reasonably anticipated revenue cost of managing and maintaining the Hub

2.1.4 For KCC to use reasonable endeavours as Lead Owner to prepare the Residential Development Land for disposal in terms of an outline planning application by the Expiry Date and marketing strategy by the Expiry Date and thereafter to use reasonable endeavours to dispose of the Residential Development Land.

2.1.5 To maximise the market value of the Residential Development.

2.1.6 For KCC to use reasonable endeavours as Lead Owner to competitively procure the Developer in accordance with applicable legislation by the Expiry Date.

2.1.7 For each of TWBC and STC to use reasonable endeavours to assist KCC to perform its obligations contained in the Agreement to the extent reasonably requested by KCC.

2.2 The Owners shall cooperate with, facilitate and assist KCC in the proposed purchase of the Additional Land so far as is reasonable to support the development of the Hub subject to the availability of sufficient surplus funding and approval by the Project Board of a detailed business case but for the avoidance of doubt this shall not include an obligation on any of the Owners (including KCC) to make further Contributions (as defined in Schedule 2) and provided that:

2.2.1 such purchase of the Additional Land shall be at a price no higher than the market value (as defined in the RICS Valuation Standards ("Market Value")) of the Lloyds Land and Tesco Land (or the relevant part as the case may be) at the time of acquisition; and

2.2.2 prior to completion of the purchase of the Additional Land, the Owners shall procure an RICS Valuation Standards Market Value

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valuation report as evidence that the price to be paid for the Lloyds Land and Tesco Land is no higher than the Market Value for either at the date of respective acquisition.

3. PRINCIPLES

3.1 The Owners irrevocably agree to comply with each of the following Principles when carrying out the Project

3.1.1 develop strategies: to develop strategies and/or projects to further the aims and objectives of the Owners pursuant to this Agreement.

3.1.2 collaborate and co-operate: establish and adhere to the governance structure set out in this Agreement to ensure that activities are delivered and actions taken as required;

3.1.3 be accountable: take on, manage and account to each other for performance of the respective roles and responsibilities set out in this Agreement;

3.1.4 communicate openly about major concerns, issues or opportunities relating to the Project;

3.1.5 learn, develop and seek to achieve full potential: share information, experience, materials and skills to learn from each other and develop effective working practices, work collaboratively to identify solutions, eliminate duplication of effort, mitigate risk and reduce cost;

3.1.6 adopt a positive outlook: behave in a positive, proactive manner;

3.1.7 adhere to statutory requirements and best practice: comply with applicable laws and standards including but not limited to the Public Contracts Regulations 2015, data protection and freedom of information legislation.

3.1.8 act in a timely manner: recognise the time-critical nature of the Project and respond accordingly to requests for support;

3.1.9 manage stakeholders effectively;

3.1.10 deploy sufficient and appropriate resources: ensure sufficient and appropriately qualified resources are available and authorised to fulfil the responsibilities set out in this Agreement.

3.1.11 act in good faith to support achievement of the Key Objectives and compliance with these Principles.

3.1.12 to undertake the Project in accordance with this Agreement.

3.2 The Owners acknowledge that the current position with regard to the Project and the contributions already made (financial and otherwise) are as detailed in Schedule 2 to this Agreement.

4. CONDITIONS PRECEDENT

4.1 Unless otherwise agreed in writing, the Owners accept that the following conditions precedent shall apply to the completion of the Development Agreement:

4.1.1 the sale of the Residential Development Land to a purchaser is completed and sufficient sums to fund the Development Agreement have been received;

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4.1.2 KCC buys the STC Land in accordance with the STC Option Agreement; and

4.1.3 KCC buys the TWBC Land in accordance with the TWBC Option Agreement;

4.2 In the event that any one or more of the conditions precedent referred to above are not met or otherwise successfully implemented by the Expiry Date, the Project Board shall meet to decide whether to terminate this Agreement and agree ways forward for the distribution of any surplus funds and the payment of any sums as may be due to KCC in accordance with Schedule 2.

5. PROJECT GOVERNANCE

5.1 The Project Board will provide governance and strategic management for the Project such governance to:

5.1.1 provide strategic oversight and direction;

5.1.2 be based on clearly defined roles and responsibilities at organisation, group and, where necessary, individual level;

5.1.3 align decision-making authority with the criticality of the decisions required;

5.1.4 be aligned with Project scope and each Project stage (and may therefore require changes over time);

5.1.5 leverage existing organisational, group and user interfaces;

5.1.6 provide coherent, timely and efficient decision-making; and

5.1.7 correspond with the key features of the Project governance arrangements set out in this Agreement.

5.2 The Project Board will provide assurance to the Owners that the Project is delivered in accordance with the Principles and Key Objectives

6. PROJECT BOARD MEMBERS

6.1 The Project Board shall comprise three Authorised Representatives, one nominated by each Owner.

6.2 Each Owner shall have the power to appoint, remove or replace the Authorised Representatives it nominates.

6.3 Each Owner will advise the other Owners of its nominated Authorised Representative from time to time.

6.4 An Owner may nominate a substitute representative to attend and vote at a meeting in place of an Authorised Representative by notifying this in advance to the other Owners.

6.5 The Owners agree that the Authorised Representative nominated by KCC shall chair each meeting of the Project Board.

6.6 At the Commencement Date the Authorised Representatives are:

6.6.1 TWBC – Cabinet Member for Communities and Wellbeing or such person as TWBC chooses to represent it.

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6.6.2 KCC - Cabinet Member for Community Services or such person as KCC chooses to represent it.

6.6.3 STC – Chairman Southborough Town Council or such person as STC chooses to represent it.

7. OPERATION OF THE PROJECT BOARD

7.1 Subject to clause 8.21 below, the Project Board has ultimate authority for all aspects of the business and affairs of the Project.

7.2 The Owners will delegate appropriate authority to the Project Board to manage and deliver the Project.

7.3 The Project Board shall have authority to:

7.3.1 approve any expenditure from capital held by the Project Board or any actual or contingent liability assumed by the Project (including providing any associated security);

7.3.2 authorise the Lead Owner to employ or contract with such service providers as it deems appropriate for the Project (acting reasonably) PROVIDED THAT in so doing it shall follow open and transparent procurement procedures and comply with all applicable procurement laws;

7.3.3 authorise the Lead Owner to enter into and vary such agreements as it deems necessary for the effective running of the Project;

7.3.4 procure surveys, valuations and other professional services on behalf of the Owners in order to submit planning applications; and

7.3.5 carry out any other action expressly referred to in this Agreement as being required by the Project Board.

7.4 Each Owner shall act in good faith to ensure that an Authorised Representative (or a substitute) attends each Project Board meeting.

7.5 The members of the Project Board shall not be involved in considering planning applications at KCC or TWBC or STC. If at any time members are or become responsible for considering planning applications they shall ensure that suitable arrangements are in place to ensure probity and absence of conflict of interest in order to ensure that no challenge on that basis can successfully be made to any planning permission granted.

7.6 Other representatives of KCC, TWBC and STC shall be entitled to attend meetings of the Project Board with the approval of the Project Board, but they shall not count towards the quorum nor be entitled to vote (unless they have been nominated as a substitute Authorised Representative for the meeting in question).

7.7 Project Board meetings shall be held at such offices as the Project Board may determine and will be held monthly or at such other intervals as the Owners agree.

7.8 The Project Board shall agree which Owner shall prepare minutes at each meeting of the Project Board, such minutes to be produced as soon as reasonably possible and in any event within a reasonable period after each meeting and circulate them to all Authorised Representatives. Notes of required actions and decisions shall also be circulated by the Lead Owner to all Authorised Representatives and the relevant Officers,

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Members/Cabinet/Committees (as notified by the Owners to the Lead Owner from time to time) as soon as possible after the meetings.

8. DECISIONS OF THE PROJECT BOARD

8.1 No business shall be transacted at any meeting of the Project Board unless two of the three Authorised Representatives (quorum) (or their substitutes) are present in person or by audio or video conferencing at the time when the relevant business is transacted.

8.2 In the event an Authorised Representative does not attend a Project Board meeting and has not appointed a substitute to attend in his place or agreed with the other Authorised Representatives that he will attend the Project Board meeting by audio or video conferencing, such Authorised Representative shall have no vote for those issues which are addressed at that Project Board meeting (subject to the quorum being present).

8.3 Subject to clause 8.5 below, action by the Project Board shall be by simple affirmative majority vote decided by a vote of those Authorised Representatives present at a Project Board meeting (either in person or through audio or video conferencing). The Project Board shall have authority to determine the procedures for the calling and holding of meetings of the Project Board, for the taking and recording of decisions of the Project Board and for the taking of votes of the Project Board should that be necessary.

8.4 An Authorised Representative shall declare any Disclosable Pecuniary Interest or personal and prejudicial interest in a matter that comes before the Project Board and shall not be entitled to vote on the matter, but a substitute Authorised Representative shall be entitled to participate and vote instead. Where in all of the circumstances a personal interest is not prejudicial then notwithstanding any interest he may have, an Authorised Representative shall be entitled to vote on the matter falling for consideration, but any such interest must be disclosed to the meeting. Any interest that the Owner may have in relation to the matter under consideration shall be declared (to the extent it has not already been made known and minuted at a Project Board meeting) but shall not prevent participation by any duly Authorised Representative (except to the extent it is also a Disclosable Pecuniary Interest or personal and prejudicial interest of the Authorised Representative concerned).

8.5 Subject to clause 8.1, any Reserved Matter shall require the unanimous agreement of each of the Authorised Representatives attending a meeting of the Project Board regardless of whether all owners are represented at such meeting.

8.6 In the event of failure by the Authorised Representatives to reach a decision on any matter (not being a Reserved Matter) in accordance with this clause 8, the Authorised Representatives shall vote to decide whether such matter is a matter of political significance (in which case it shall be decided in accordance with clause 8.7) or a matter for an expert (in which case it shall be decided by an Expert pursuant to clause 8.8). Only one vote from any Authorised Representative is required to deem any matter a matter of political significance.

8.7 Any unresolved matter deemed by the Project Board to be a matter of political significance pursuant to clause 8.6 shall be resolved by the Leaders of each of TWBC and KCC and the Chairman for STC meeting together within five working days. In the absence of agreement at or immediately following the meeting then each of the Owners shall arrange to place the matter on the agenda for the next/an extraordinary meeting of the

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Cabinet/Town Council to be held within the next fourteen days to determine the matter.

8.8 If any matter is referred for expert determination then the Owners shall agree on the appointment of an independent Expert within 5 working days and shall use reasonable endeavours to agree with the Expert the terms of his appointment and in lieu of agreement such expert shall be nominated by the President of the Law Society or the President of the Royal Institution of Chartered Surveyors (or their nominee) as appropriate.

8.9 Each Owner shall be entitled to make representations to the Expert and will provide (or procure that others provide) the Expert with such assistance and documents as the Expert reasonably requires for the purpose of reaching a decision.

8.10 The Expert is required to prepare a written decision and give notice (including a copy) of the decision to the Owners within a maximum of one month of the matter being referred to the Expert.

8.11 If the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required by this clause then:

8.12 Any Owner may apply to discharge the Expert and to appoint a replacement Expert with the required expertise; and

8.13 This clause shall apply to the new Expert as if he were the first Expert appointed.

8.14 All matters under this clause must be conducted, and the Expert's decision shall be written, in the English language.

8.15 To the extent not provided for by this clause, the Expert may in his reasonable discretion determine such other procedures to assist with the conduct of the determination as he considers just or appropriate including (to the extent considered necessary) instructing professional advisers to assist him in reaching a determination.

8.16 The Owners shall with reasonable promptness supply the others with all information and give each other access to all documentation and personnel and/or things as any other Owner may reasonably require to make a submission under this clause.

8.17 The Expert shall act as an expert and not as an arbitrator.

8.18 Each Owner shall bear its own costs in relation to the reference to the Expert.

8.19 All matters concerning the process and result of the determination by the Expert shall be kept confidential among the Owners and the Expert (unless disclosure shall be required by law).

8.20 Each Owner shall act reasonably and co-operate to give effect to the provisions of this clause and otherwise do nothing to hinder or prevent the Expert from reaching his determination.

8.21 The Owners hereby agree that KCC shall be the Lead Owner for the purposes of negotiating and agreeing the terms and conditions of contract between the Owners and third parties for the purposes of facilitating the Project, including but not limited to the Development Agreement.

8.22 In the event the Authorised Representative of STC decides at a Project Board meeting that he does not have the required authority to vote on any

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one or more of the matters referred to in this clause 8 (including but not limited to a Reserved Matter) he shall within 8 (eight) Working Days of the date of the said Project Board meeting obtain the required confirmation and/or authority of the STC Committee to decide upon how it wishes to vote upon the relevant decision and will inform the other Owners of such decision within the said period.

9. REPORTING

9.1 Project reporting shall be undertaken as follows:

9.1.1 Project Board: Minutes and actions will be recorded for each Project Board meeting. Financial reports shall be circulated to Authorised Representatives at least monthly (or as otherwise required by the Project Board).

9.1.2 Any additional reporting requirement shall be at the discretion of the Project Board.

9.1.3 Organisational: the Authorised Representatives shall be responsible for arranging for drafting reports to their respective Owners (Cabinet and/or Council) as required for review and/or approval of Reserved Matters or other matters as necessary.

10. ROLES AND RESPONSIBILITIES

10.1 The Owners shall undertake the following roles and responsibilities to deliver the Project:

10.2

Activity Kent County

Council

Tunbridge

Wells Borough

Council

Southborough Town

Council

Project Board Lead Assure Assure

Vision delivery Lead (subject to full

approval by the

Project Board)

Assure Assure

Operations

delivery

Lead (subject to full

approval by the

Project Board)

Assure Assure

Communications Lead (subject to full

approval by the

Project Board)

Assure Assure

Financial

oversight

Lead (subject to full

approval by the

Project Board)

Assure Assure

Legal Lead (subject to full

approval by the

Project Board)

Assure Assure

Procurement Lead (subject to full

approval by the

Project Board)

Assure Assure

Project build

delivery

Lead (subject to full

approval by the

Project Board)

Assure Assure

Evaluation Lead (subject to full Assure Assure

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approval by the

Project Board)

10.3 For the purpose of the table above:

10.3.1 "Lead": means the Owner which has principal responsibility for undertaking the particular task, and is authorised by the Project Board to determine how to undertake the task. The Lead must act in compliance with the Key Objectives and Principles at all times, and consult with the other Owners in advance if they are identified as having a role to Assure (as defined below) the relevant activity;

10.3.2 "Assure": means the Owner which will have the opportunity to review and provide input to the Lead before they take a final decision on any activity. All assurance must be provided in a timely manner. Any derogations raised must be limited to raising issues that relate to specific needs that have not been adequately addressed by the Lead and/or concerns regarding compliance with the Key Objectives and Principles.

10.4 Within 12 months of the Commencement Date the Owner with the Lead role for any aspect of the Project shall develop a delivery plan for that part of the Project which shall identify the following:

10.4.1 the key milestones for the delivery the Key Objectives;

10.4.2 what employees (other than employees identified in this Agreement) will be required to work on the Project;

10.4.3 whether any staff will need to be seconded from one Owner to another Owner;

10.4.4 what staff will require access to the premises of another Owner;

and each delivery plan must be approved by the Project Board prior to being implemented and in any event by the Expiry Date .

10.5 The Owners agree that any agreement or other document to be entered into in relation to the Project shall be approved by the Project Board.

10.6 No Owner or Authorised Representative shall have authority to approve or enter into any agreement or other document on behalf of the Project Board unless it has been approved by the Project Board.

10.7 The Project Board may authorise KCC to procure surveys, valuations and other professional services on behalf of the Owners in order to submit planning applications.

10.8 Any planning application and all plans and drawings must be approved by the Project Board prior to their submission to the local planning authority.

11. Failure by the lead owner to perform its obligations

11.1 In the event that the Lead Owner is at any time not materially complying with its obligations pursuant to this Agreement the other Owners by unanimous agreement may (but shall not be obliged to) serve a written notice on the Lead Owner detailing such breach and requiring remedial action to be taken to remedy such breach within 20 Working Days or such other period as may be agreed upon by all the Owners.

11.2 If the Lead Owner, fails (in the reasonable opinion of the other Owners) to remedy the breach referred to in the notice served pursuant to clause 11.1

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within such stipulated time, the other Owners by unanimous agreement may (but shall not be obliged to) serve a written notice on the Lead Owner requiring such matter to be resolved by the representatives of the Owners referred to in clause 8.7 within 20 Working Days or such other period as may be agreed upon by all the Owners and such resolution shall be binding upon the Owners.

12. INTELLECTUAL PROPERTY

12.1 The Owners intend that any intellectual property rights created in the course of the Project shall vest in the Owner whose employee created them

12.2 Where any intellectual property rights vest in any Owner in accordance with the provisions of clause 12.1 above, that Owner hereby undertakes to grant an irrevocable, royalty free and permanent licence to the other Owners to use those intellectual property rights for the purposes of facilitating and enabling the Project.

13. TERM AND TERMINATION

13.1 This Agreement shall commence on the Commencement Date and shall expire:

13.1.1 If Implementation has not taken place, on the earlier of

13.1.1.1 the Expiry Date; and

13.1.1.2 the date the Project Board reaches a decision that delivery of the whole of the Project is no longer viable or prudent;

or;

13.1.2 If Implementation has taken place, on the later of:

13.1.2.1 practical completion of the Hub;

13.1.2.2 the date of the final payment pursuant to the provisions of Schedule 2; or

13.1.2.3 the date of the final disposition of land pursuant to the provisions of Schedule 1.

14. VARIATION

This Agreement, including the schedules and/or annexures, may only be varied with the unanimous agreement of the Owners in writing and executed as a deed.

15. NON-ASSIGNMENT

The Owners agree that no Owner shall have the right to assign any interest or benefit in this Agreement to any other party other than by statutory transfer of the functions of such Owner.

16. NOTICES

16.1 All notices shall be in writing.

16.2 In addition to any other method of service permitted by law but the Owners agree that a copy of any notice served must also be sent by post to be validly served:

16.2.1 a notice to a KCC is validly served if addressed to it and left at

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County Hall, Maidstone, Kent ME14 1XQ;

16.2.2 a notice to a TWBC is validly served if addressed to it and left at Town Hall, Mount Pleasant Road, Tunbridge Wells, Kent TN1 1RS;

16.2.3 a notice to a STC is validly served if addressed to it and left at 137 London Road, Southborough, Tunbridge Wells, Kent TN4 0ND

or such other address as is notified in writing to the other Owners.

16.3 Any notice sent by post is deemed served two (2) Working Days after the date of posting.

16.4 Service by fax is not a valid form of service under this Agreement.

17. CHARGES AND LIABILITIES

17.1 Except as otherwise agreed between the Owners, each of the Owners shall bear their own costs and expenses incurred in complying with their obligations under this Agreement.

17.2 The Owners agree to share the costs and expenses arising in respect of the Project between them in accordance with the provisions of Schedule 2.

17.3 The Owners shall remain liable for any losses or liabilities incurred due to their own or their employees’ actions and no Owner intends that the other Owner(s) shall be liable for any loss it suffers as a result of this Agreement.

18. LIABILITIES AND INDEMNITIES

18.1 The Owners shall work together to ensure that such procurement exercises as may be required and decision-making of each Owner is, as far as possible, coordinated.

18.2 During the procurement exercise for the Developer, the Lead Owner may arrange for all responses from bidders to be received either by KCC or at a common single point for duly authorised officers of each of the Owners to carry out jointly the evaluation of each of those responses in accordance with the selection and award criteria set out in the invitation to tender and report to the Owners on the outcome of the evaluation process.

18.3 Notwithstanding anything to the contrary contained in this Agreement, the Owners irrevocably accept that KCC shall not be independently responsible for any representation, warranty or undertaking given in procurement of successful contractor(s) for the Development Agreement or any legal challenge in relation thereto and agree they shall accept joint liability for any costs, losses, damages, liabilities and expenses arising as a consequence thereof save where any of the Owners have acted negligently, in which case the relevant Owner shall accept liability for the said costs, losses, damages, liabilities and expenses arising.

19. STATUS

19.1 The Owners agree that this Agreement shall prevail over and supersede any other arrangement or Memorandum of Understanding previously entered into between the Owners relating to the Project. Unless otherwise stated herein, this Agreement applies in place of and prevails over any other terms, conditions and prior representations, whether contained in correspondence or implied by custom or law. Nothing in this Agreement shall limit or otherwise exclude liability for fraudulent statements or misrepresentations made by any Owner.

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19.2 The Owners agree that this Agreement shall take the form of a legally binding relationship and mutual commitments between them created by this Agreement shall from the date hereof be construed accordingly.

19.3 The rights and obligations which expressly or by their nature are intended to survive the expiry or termination of this Agreement shall so survive and bind the Owners and their legal representatives, successors and assigns.

20. FREEDOM OF INFORMATION ACT 2000 (FOIA)

20.1 Each Owner acknowledges that the other Owners are subject to the requirements of the FOIA and each Owner shall where reasonable assist and co-operate with the other Owners (at their own expense) to facilitate and/or enable the other Owners to comply with relevant information disclosure requirements.

20.2 Where an Owner receives a request for information in relation to information which it is holding on behalf of the other Owners in relation to the Project, it shall (and shall procure that its sub-contractors shall):

20.2.1 transfer the request for information to the relevant Owner as soon as practicable after receipt and in any event within two (2) Working Days of receiving a request for information;

20.2.2 provide the relevant Owner with a copy of all information in its possession or power in the form that the Owner requires within ten (10) Working Days (or such longer period as the Owner may specify); and

20.2.3 provide all necessary assistance as reasonably requested by the relevant Owner to enable the Owner to respond to a request for information within the time for compliance set out in the FOIA.

20.3 Where an Owner receives a request for information which relates to this Agreement or the Project, it shall inform the other Owners of the request for information as soon as practicable after receipt and in any event at least two (2) Working Days before disclosure and shall use reasonable endeavours to consult with the other Owners prior to disclosure and shall consider all representations made by the other Owners in relation to the decision whether or not to disclose the information requested.

21. GOVERNING LAW AND JURISDICTION

21.1 This Agreement shall be governed by and construed in accordance with English law.

21.2 The Lead Owner shall conduct the procurement exercise for the Developer in compliance with all national and EU legislation and its respective ‘Procurement Standing Orders’ shall be applicable to the procurement exercise.

21.3 Each Owner shall indemnify and keep indemnified the other Owners (who are not also in material default) against all losses, claims, damages, liabilities, costs and expenses (including reasonable legal costs) incurred by the other Owners (who are not also in material default) in respect of any breach of this Agreement by the relevant Owner entirely as a result of any act or omission by the defaulting Owner which was not part of a joint course of action agreed between the Parties.

21.4 A person who is not a party to this Agreement shall not be entitled to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

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IN WITNESS WHEREOF this Agreement has been duly executed by the Owners as a deed in accordance with their respective constitutions on the day and year first above written THE COMMON SEAL of THE KENT COUNTY COUNCIL

was affixed to this deed in the presence of Authorised Signatory

............................................

A Member of the Kent County Council

Executed as deed by affixing the common seal of TUNBRIDGE WELLS BOROUGH COUNCIL in the presence of

Signature: ............................................ Name: ............................................ Position: ............................................ Executed as deed by affixing the common seal of SOUTHBOROUGH TOWN COUNCIL in the presence of Signature Name Position

............................................ ............................................ ............................................

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SCHEDULE 1

The Project

1. OVERVIEW

1.1 The STC Option and the TWBC Option have been entered into independently of this Agreement and KCC has the ability to call for the transfer of the STC Land and the TWBC Land to be transferred to KCC.

1.2 KCC has agreed to contribute the KCC Land in order that KCC shall deliver the Project.

1.3 The STC Land, TWBC Land and KCC Land may only be used for the Project.

1.4 The Owners agree that the Residential Development is the enabling development and it is intended that the proceeds of sale from the Residential Development shall pay for the costs of the development of the Hub.

1.5 In consideration of STC entering into this Collaboration Agreement KCC agrees that any overage that it is entitled to in respect of any part or parts of the STC Land shall be waived.

1.6 The Owners intend that the Hub Land will be developed as the Hub.

1.7 The Owners intend that KCC shall, on behalf of the Owners and in collaboration with them, develop the following proposals:

1.7.1 a comprehensive business plan to be agreed by the Project Board for both the capital and operational element of the Project ;

1.7.2 an arrangement by which KCC, STC and TWBC share in the proportions referred to in paragraph 2.2 of Schedule 2 any economic return from the development of the Land and Additional Land, however obtained;

1.7.3 the concept, design, layout, specification and any planning application in respect of the Hub will be in accordance with the Accommodation Requirements which will include but are not limited to:

1.7.3.1 a hall;

1.7.3.2 library;

1.7.3.3 council offices for use by STC;

1.7.3.4 café;

1.7.4 an agreed plan for bringing the Residential Development forward in terms of an outline planning application and marketing strategy

1.7.5 considering fully the implications of SDLT and VAT including but not limited to the partial VAT exemption of the Owners;

1.7.6 options for the future operation of the Hub, including the possibility of a not for profit organisation to operate it.

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2. OWNERS' OBLIGATIONS

2.1 Subject to the approval by the Project Board of the terms of such acquisition, KCC shall use reasonable endeavours to acquire the Additional Land.

2.2 Subject to the approval by the Project Board, KCC shall enter into a Development Agreement with the Developer as soon as possible after the conditions precedent referred to in clause 4 have been satisfied.

2.3 At the point in the development of the Project where STC is required to vacate the part of the TWBC Land known as 137 London Road, TWBC shall provide STC with temporary office accommodation until the new office part of the Project is completed and ready for occupation by STC.

2.4 The Owners will agree and prepare a business plan prior to the opening of the Hub detailing the future management proposals.

2.5 Following the completion of the development the following terms shall apply:

2.5.1 STC will have the option to purchase the completed Hub excluding the Yew Tree Road car park from KCC for £1 and medical centre subject to a new lease being granted to KCC of the library building for 99 years at a peppercorn rent. The lease will contain provision for KCC to contribute to the Hub service charge at an appropriate level.

2.5.2 TWBC will have the option to purchase the Yew Tree Road car park (forming part of the TWBC Land) for £1.

2.5.3 Tenants of the Hub (not being one of the Owners) will be required to pay an appropriate commercial rent which shall be used in support and maintenance of the Hub.

2.5.4 Any owner or occupier of the Hub (which for the avoidance of doubt for the purposes of this paragraph shall exclude the Yew Tree Road Car Park) including any of the Owners will be responsible for a fair proportion of the overall service charge and the maintenance and up keep of the Hub.

2.6 If this Agreement is terminated before the Hub is completed but after the unregistered land shown edged red on the Drawing Number TQ5842/7R (the "Lloyds Land") has been acquired by KCC then TWBC shall acquire the Lloyds Land from KCC at the price paid by KCC (less any contribution to the original purchase price of the Lloyds Land made by TWBC) within a period of 30 days of termination of this Agreement;

2.7 If this Agreement is terminated before the Hub is completed but after the Tesco Land has been acquired by KCC then STC will grant KCC an option to purchase the land edged blue on Drawing Number TQ5842/7S for the consideration of £1 within a period of 30 days of termination of this Agreement.

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SCHEDULE 2

Financial Issues

1. CONTRIBUTIONS

1.1 Each of the Owners has provided a total sum of £95,000 (ninety five thousand pounds) towards the enabling costs of the Project (the "Contributions").

1.2 If the Owners agree to contribute any further sum to the enabling costs of the Project then such sum shall be added to any existing sum and treated as that Owner's Contribution of the purposes of priority recovery of costs pursuant to paragraph 2.

1.3 All capital Contributions made by an Owner shall be credited to the capital balance of the Project.

1.4 Capital costs for the Project will be met by the proceeds of sale of the Residential Development. The Residential Development shall be sold and the proceeds of sale will be held by KCC on trust for the Owners for the purposes of the Project in a KCC escrow account and overseen by the Project Board. Funds will be released in the following order:

1.4.1 to secure the purchase of the Additional Land (and repay any funds provided by the Owners in order to acquire the Additional Land) and for the avoidance of any doubt such funds shall include all costs and associated expenses including (without prejudice to the generality thereof) the stamp duty land tax, banking and finance costs and cost of obtaining any insurance policies relating to the same, reasonable legal costs and all land registry fees incurred by the Owners in connection with the purchase of the Additional Land;

1.4.2 pay KCC £350,000 (Three Hundred and Fifty Thousand Pounds) in consideration for the Ridgewaye Site as shown on plan TQ5842_7B;

1.4.3 to procure the construction for the Hub and pay KCC such costs and expenses reasonably and properly incurred in leading the procurement and acting as Lead Owner;

1.4.4 to fund the relocation of STC’s maintenance staff and equipment storage facility including the cost of any new facility and the refurbishment of it;

1.4.5 to repay any contributions above the original Contributions made by any of the Owners;

1.4.6 to repay the Contributions to the Owners;

1.4.7 to distribute to each Owner any surplus funds from the sale of the Residential Development and/or Hub based on the percentages set out in paragraph 2.2 below following completion of the Hub.

2. RETURN OF CONTRIBUTIONS AND LOANS

2.1 After one month of the date of practical completion of the Hub or termination of this Agreement, the Project Board shall have discretion to determine when to distribute any capital surplus balance or repay any of the Contributions.

2.2 Any surplus funds remaining after the Project is complete or this Agreement is terminated shall be redistributed to Owners based on the following percentages which are based on the proportions of the Land contributed to the Project.

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Owner Profit Percentage

(%)

Kent CC 15.59

TWBC 14.54

STC 69.87

3. FINANCE

KCC will provide monthly updates to the Project Board on the state of the funding, including remaining funds and funds committed.

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ANNEXURE A – Plan

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