Decision Maker: Executive Member for Education, Learning & Skills
Decision status: Recommendations Approved
Is Key decision?: No
Is subject to call in?: No
Proposed Variation to Project Agreement dated
30 March 2001 to expand Barlby Community Primary School
Authority to enter into the Deed of Variation and related documents
comprising
• Deed of Amendment to PFI Project Agreement with further
amendments requested by the lenders. The further amendments relate
to the following issues:
1. During construction performance and unavailability deductions
will not apply to the whole site.
2. During the 12 month Defects Liability Period performance and
unavailability deductions will apply to the whole site with the
exception of the new build areas.
3. If the Council need to take enforcement action against the
builder, the Council would name borrow from the SPV to pursue the
builder.
• Contractor collateral warranty to Authority
• Architect Collateral Warranty to Authority
• C&S Engineer Collateral Warranty to Authority
• M&E Engineer Collateral Warranty to Authority
• Certificate issued pursuant to Local Government (Contracts)
Act 1997
• Notices of assignment
i. approving the terms of the variation documents to which it is
party and consenting to the transactions contemplated by such
documents;
ii. authorising the Assistant Chief Executive Legal and Democratic
or persons authorised by them to seal the variation documents to
which the Authority is party, in each case in accordance with its
Constitution.
*PLEASE NOTE This decision was originally
published on or near the date of the decision and so call in no
longer applies. It has been re-published as part of the change in
committee management system that we use.*
The Corporate Director – Children and Young People’s
Service has power to exercise all functions of the LEA and to enter
into contracts to facilitate service delivery. (Scheme of
Delegation 3.3 and 4.2 (a)).
The County Council’s Executive authorised the expansion of
Barlby Community Primary School through reports on 24 May 2016
(Planning of School Places – Basic Need Programme 2015-2018
Appendix A) and 24 June 2018 (Planning of School Places –
Basic Need Programme 2018-2021, Appendix B) including funding for
the scheme and that expansion would be delivered by the Private
Finance Initiative company that manage the school.
The Corporate Director gave officers authority to enter into the
Deed of Variation and related documents on 11 February 2020 (Key
Decision Record Form CYP10/20) when tender evaluation was now
underway in relation to the proposed expansion. Prior to the
awarding of the contract, the PFI contractor also requires the
Council to certify the contract. The proposed expansion is subject
to a Deed of Variation to the PFI contract, which it is recommended
be approved by Corporate Director CYPS and signed by both parties.
This is required by the PFI provider to be certified pursuant to
the Local Government (Contracts) Act 1997. A contractor has now
been chosen, the contractual documentation is being finalised and a
schedule of works produced.
A late request has been received from the lenders to vary terms of
the agreement as set out below:
1. During construction performance and unavailability deductions
will not apply to the whole site.
2. During the 12 month Defects Liability Period performance and
unavailability deductions will apply to the whole site with the
exception of the new build areas.
3. If the Council need to take enforcement action against the
builder, the Council would name borrow from the SPV to pursue the
builder.
While the building contractor will use all reasonable endeavours to
prevent the construction works impacting on the operation of the
school site, the Lender is seeking protection against this across
the whole site during the construction period, and in the new build
areas during the 12 month defects liability period following
handover.
We have had few unavailability deductions over the years of the
contract and consider that the risk of accepting these variations
in terms is considered low. Negotiations have taken place with the
Lender and it has become clear that if we seek to further negotiate
this will not necessarily improve the terms and will have the
effect of causing further delay to a time sensitive and high
profile project. It is for these reasons that these terms are
recommended for acceptance in this case.
Publication date: 16/04/2021
Date of decision: 13/10/2020