EXHIBIT 10.39
DATED 10 November 2000
BROWN & SHARPE GROUP LIMITED
- and -
LANZ FARM LIMITED
- and -
S.I.T.A. PRODUCTS & SERVICES
LIMITED
- and -
SITA SA
AGREEMENT
relating to
Gravel Extraction Landfilling Restoration and
Aftercare Works
at Harmondsworth Lane Sipson
in the London Borough of Hillingdon
Nabarro Nathanson
Lacon House
Theobald’s Road
London WC1X 8RW
Tel: 020 7 524 6000
AGREEMENT
DATE 10 November 2000
PARTIES
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(1)
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BROWN &
SHARPE GROUP LIMITED (Company Registration Number 1409379) whose
registered office is at Metrology House Halesfield 13 Telford
Shropshire TF7 4PL (which expression shall include its successors
in title and permitted assigns);
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(2)
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LANZ FARM
LIMITED (Company Registration Number 385147) whose registered
office is at Galleymead House Bath Road Colnbrook Surrey SL3 0NT
(which expression shall include its successors in title and
permitted assigns);
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(3)
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S.I.T.A.
PRODUCTS & SERVICES LIMITED (Company Registration Number
1373225) whose registered office is at The Pickeridge Stoke Common
Road Fulmer Buckinghamshire SL3 6HA; and
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(4)
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SITA SA whose
registered office is at 132 Rues des Trois Fontanot 92758 Nanterre
Cedex France (company registration number: 552 149 908 RC
Nanterre).
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RECITALS
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(A)
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Brown &
Sharpe is the owner in fee simple of the First Land and the
Pink-Hatched Land, Lanz is the owner in fee simple of the Second
Land and SITA is the owner in fee simple of the Third
Land.
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(B)
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The parties
wish to determine the First Gravel Agreement and to enter into this
Agreement in substitution for the First Gravel
Agreement.
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NOW THIS AGREEMENT WITNESSETH AS
FOLLOWS:
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1.
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DEFINITIONS
AND INTERPRETATION
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In this Agreement the following
expressions shall where the context so allows have the following
meanings:
“Account”
a written account setting out the
types and quantities of each type of Waste tipped into the Void
together with the charges made for each type of Waste during any
one calendar month;
“Aftercare
Works”
all works, operations, actions,
monitoring, sampling and reporting required to be undertaken to
comply with the conditions of the Waste Management Licence during
the period after completion of the Restoration Works until
surrender of the Waste Management Licence in accordance with
section 39 of the Environmental Protection Act 1990;
“Baseline
Value”
the value of the net assets of the
Guarantor calculated in accordance with the current French standard
accounting practice as at the last accounting year end before the
date of this Agreement;
“Brown &
Sharpe”
Brown & Sharpe Group Limited
(Company Registration Number 1409379) (which expression shall
include its successors in title and permitted assigns);
“Clay”
any clay extracted by SITA from the
Owners’ Land;
“Deed of
Counter-Indemnity”
a deed dated 22 August 1991 made
between Brown & Sharpe (1) Lanz (2) SITA (then known as
Drinkwater Sabey Limited) (3) and Attwoods PLC (4);
“Deed of
Grant”
a deed of grant of easement in the
form set out in Annex A the details including parties and land
affected being altered as appropriate to the circumstances under
this Agreement in which such grant is being made;
“Development Up-lift
Value”
the increase in value of the whole
or any part of the Owners’ Land resulting from the benefit of
the Deed of Grant to be granted hereunder by SITA to be determined
by calculating the difference in the value of the relevant area
before
the granting of the Deed of Grant
and after the granting of the Deed of Grant (such value to be
calculated on the basis of a sale in the open market subject in all
respects to the same incumbrances restrictions and
benefits);
“Environment”
the meaning set out in section 1 of
the Environmental Protection Act 1990;
“Environment
Agency”
the body corporate so called and
created pursuant to the Environment Act 1995 and charged with
implementing and enforcing (inter alia) the provisions of the
Environmental Protection Act 1990;
“Environmental Insurance
Policy”
the policy for environmental
insurance to be issued by Allianz Cornhill International a trading
division of Cornhill Insurance plc whose registered office is at 32
Cornhill London EC3V 3LJ (Company No: 84638) in the form set out in
Annex B;
“Environmental
Law”
any legislation of the European
Union and of the United Kingdom Government (including any local
authority or other statutory body granted power to issue laws or
regulations) any implementing legislation, any form of delegated
legislation (including but not limited to, regulations, statutory
guidance and any code of practice issued from time to time by any
Government Department, Ministry and/or Government Agency), whether
or not having effect at the date of this Agreement, and whether or
not having retrospective effect, concerning the protection of human
health or the Environment or the deposit, treatment, disposal,
storage, containment or management of Waste together with all legal
rules the common law of nuisance, negligence and the rule in
Rylands -v- Fletcher;
“First Gravel
Agreement”
an agreement dated 17 February 1988
and made between Brown & Sharpe (1) Lanz (2) SITA (then known
as Drinkwater Sabey Limited) (3) and Attwoods PLC (4) as varied by
an agreement dated 4 February 1994 contained in a letter from Brown
& Sharpe and Lanz to SITA (then known as Drinkwater Sabey
Limited) and Attwoods PLC;
“First
Land”
all that land at Harmondsworth Lane,
Sipson in the London Borough of Hillingdon shown for the purpose of
identification only edged green on the Plan and vested in Brown
& Sharpe;
“Guarantor”
SITA SA or such person firm or
company who replaces SITA SA as guarantor of the performance of
SITA’s obligations pursuant to this Agreement in accordance
with the provisions of clause 15.2;
“Guarantee”
the form of guarantee to be executed
by the Guarantor on execution of this Agreement as set out in
Schedule 1;
“Gravel”
all materials including sand and
gravel and all other mineral and aggregate deposits reasonably
commercially removable from the Land (but excluding
Clay);
“Income
Threshold”
[ * ] this threshold being subject
to review in accordance with clause 8.5;
“Land”
together the First Land the Second
Land and the Third Land;
“Lanz”
Lanz Farm Limited (Company
Registration Number 385147) (which expression shall include its
successors in title and permitted assigns);
“Local
Authority”
The London Borough of Hillingdon or
any successor body which shall during the Term have jurisdiction
under the Planning Acts in respect of the Land;
“Minimum Tonnage of
Gravel”
[*] per annum or such lower rate
required from time to time by the Local Authority and/or the
Environment Agency as notified in writing to SITA and/or the
Owners;
“Model”
SITA’s accounting model for
undertaking and completing the Restoration Works and Aftercare
Works set out in Schedule 2;
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*
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Confidential
portion has been omitted and filed separately with the
Commission
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“Monitoring
Boreholes”
the monitoring boreholes in the
stored sub-soil and top-soil on the Pink-Hatched Land and/or the
monitoring boreholes (if any) required in accordance with the
Removal Works Permission (as appropriate);
“Operative
Works”
the works for the extraction of
Gravel and Clay from the Land and the subsequent infilling and
tipping of Waste into the Void by SITA under the provisions of this
Agreement;
“Owners”
Brown & Sharpe and Lanz together
and their respective successors in title to the First Land and the
Second Land;
“Owners’
Land”
together the First Land and the
Second Land;
“Owners’
Representative”
such person as the Owners shall
appoint from time to time and shall notify to SITA in writing as
being their representative for the purposes of clause
17;
“Payment
Year”
a calendar year;
“Pink-Hatched
Land”
all that land at Harmondsworth Lane
Sipson in the London Borough of Hillingdon shown for the purpose of
identification only edged and hatched pink on the Plan and vested
in Brown & Sharpe;
“Plan”
the plan annexed hereto;
“Planning
Acts”
the Town and Country Planning Act
1990 the Planning (Listed Building and Conservation Areas) Act 1990
the Planning (Hazardous Substances) Act 1990 and the Planning and
Compensation Act 1991 and all statutory instruments made
thereunder;
“Planning
Agreement”
an agreement pursuant to Section 106
of the Town and Country Planning Act 1990 and made between Brown
& Sharpe, Lanz, SITA and the Local Authority;
“Planning
Permission”
the planning permission dated 16
September 1991 (Reference no. 43155/89/520) as varied on 20 October
1999 (Reference no. 43155H/99/326) and any further variations or
amendments thereto agreed by the parties hereto and the Local
Authority;
“Price for
Clay”
[ * ] or such greater amount as is
agreed or determined from time to time as a result of a review
pursuant to clause 17.3;
“Put
Option”
means the option granted to Brown
& Sharpe and/or Lanz pursuant to clause 16.1 and/or 16.2 (as
the case may be);
“Put Option
Notice”
means the notice in writing from
Brown & Sharpe and/or Lanz to SITA exercising the Put
Option;
“Put Option
Period”
means the period commencing on the
date of this Agreement and ending on the date which is 20 years and
364 days thereafter;
“Quarter
Days”
for the purposes of this Agreement
shall mean January 1, April 1, July 1 and October 1 and the
expression “Quarter Day” shall mean any one of such
dates during any Payment Year;
“Quarterly
Period”
shall mean the period commencing on
a Quarter Day and ending on the day before the next successive
Quarter Day;
“Removal
Notice”
a notice issued by Brown &
Sharpe to SITA requiring SITA forthwith to institute the procedure
for agreeing and carrying out the Removal Works in accordance with
clause 10.10;
“Removal
Works”
works for the removal of stored soil
and the relocation of the Monitoring Boreholes from the
Pink-Hatched Land to such part of the Owners’ Land as is
agreed between Brown & Sharpe and Lanz and notified to SITA in
accordance with clause 10;
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*
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Confidential
portion has been omitted and filed separately with the
Commission
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“Restoration
Works”
the full restoration of the Land in
accordance with (i) the Waste Management Licence and (ii) the
Planning Permission;
“Restoration Works and
Aftercare Works Sum”
the amount of money required by SITA
to undertake and complete the Restoration Works and Aftercare Works
calculated in accordance with the Model;
“Second
Land”
all that land at Harmondsworth Lane,
Sipson in the London Borough of Hillingdon shown for the purpose of
identification only edged pink on the Plan and vested in
Lanz;
“S.106
Agreement”
the agreement made under S.106 of
the Town and Country Planning Act 1990 between the London Borough
of Hillingdon (1) SITA (then known as Drinkwater Sabey Limited) (2)
Brown & Sharpe (3) and Lanz (4) and dated 22 August
1991;
“SITA”
S.I.T.A. Products and Services
Limited (Company Registration Number 1373225) and its permitted
assignees;
“Surrender
Date”
the date on which the Environment
Agency accepts surrender of the Waste Management Licence in
accordance with section 39 of the Environmental Protection Act
1990;
“Term”
the period commencing on the date of
this Agreement and ending on 16 October 2025 or the Surrender Date
whichever is the earlier;
“Termination
Date”
the date SITA receives a notice from
the Owners pursuant to and in accordance with clause
11.1;
“Third
Land”
all that piece of land at
Harmondsworth Lane and Holloway Lane Sipson in the London Borough
of Hillingdon shown for the purpose of identification only edged
blue on the Plan and vested in SITA;
“Void”
the space under the Land created as
a result of the extraction of Gravel and any Clay extracted all in
accordance with this Agreement;
“Waste”
the types of materials permitted to
be used for infilling of the Void as set out in the Planning
Permission and the Waste Management Licence;
“Waste Management
Licence”
the waste management licence or
licences given under the Environmental Protection Act 1990 or any
re-enactment thereof issued by the Environment Agency for the
purposes of permitting tipping of Waste in or upon the Land (or
part or parts thereof) in a form reasonably satisfactory to SITA
and Brown & Sharpe and Lanz and any modifications
thereof;
“Works”
together the Operative Works, the
Restoration Works and the Aftercare Works;
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1.1.1
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clause headings
are for convenience only and do not affect its
construction;
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1.1.2
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words denoting
the singular include the plural and vice versa;
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1.1.3
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words denoting
one gender include each gender and all genders.
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1.2
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In this
Agreement, unless otherwise specified or the context otherwise
requires, a reference to:
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1.2.1
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a person is to
be construed to include a reference to any individual, firm,
partnership, company, corporation, association, organisation or
trust (in each case whether or not having a separate legal
personality);
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1.2.2
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a clause
schedule or Annex is a reference to a clause of or schedule or
Annex to this Agreement and a reference to this Agreement includes
its Schedules and Annexes;
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1.2.3
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a paragraph is
a reference to a paragraph of the Schedule or the Annex in which
the reference appears;
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1.2.4
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a statutory
provision is to be construed as a reference to such provision as
amended, consolidated or re-enacted from time to time and to any
orders, regulations, instruments or other subordinate legislation
(and relevant codes of practice and statutory guidance) made under
the relevant statute.
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1.2.5
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a reference to
writing shall include any mode of reproducing words in a legible
and non-transitory form; and
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1.2.6
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Save for clause
13.4 any reference to “party” or “parties”
in this Agreement shall not include the Guarantor.
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2.
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TERMINATION
OF THE FIRST GRAVEL AGREEMENT AND OWNERSHIP OF
GRAVEL
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2.1
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The First
Gravel Agreement is hereby determined but without prejudice to any
antecedent claim by any party against any other party.
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2.2
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The parties
hereby acknowledge that with effect from 22 January 1992 all Gravel
on the Third Land belongs to the Owners (jointly) until paid for by
SITA pursuant to clause 7.
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2.3
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The parties
hereby acknowledge that with effect from 22 January 1992 all Gravel
extracted from the Land is subject to the provisions of this
Agreement (and in particular the provisions of clause 7 hereof) and
that any stocks of Gravel stored on the Third Land but extracted
from the Land belong to the Owners (jointly) until paid for by SITA
pursuant to clause 7.
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3.
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RIGHT TO
CARRY OUT THE WORKS
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3.1
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Brown &
Sharpe and Lanz hereby grant to SITA during the Term the right
subject to the provisions of the Planning Permission and the Waste
Management Licence to enter onto the Owners’ Land for the
purposes of executing and completing the Works and for all
necessary purposes in connection therewith including the siting and
retaining of plant machinery and vehicles the physical extraction
of Gravel and Clay and its removal from the Owners’ Land the
deposit on the Owners’ Land of Waste and its use for the
infilling and restoration of the Void.
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3.2
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If by the 16
October 2025 SITA has not completed the Aftercare Works and
surrendered the Waste Management Licence in accordance with the
requirements of Environmental Law the Owners shall grant to SITA a
licence to enter onto such part or parts of the Owners’ Land
as are necessary to effect such surrender of the Waste Management
Licence but for no other purpose whatsoever.
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4.1
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Brown &
Sharpe and Lanz shall (each in respect of its own portion of the
Owners’ Land and/or the Pink-Hatched Land) keep SITA informed
of any matters affecting the Owners’ Land and/or the
Pink-Hatched Land which might have or be capable of having any
material effect upon SITA’s ability to carry out the Works
and/or the Removal Works including any notices received by Brown
& Sharpe or Lanz in respect of their own portion of the
Owners’ Land and/or the Pink-Hatched Land any changes in
tenancies affecting the Owners’ Land or any change in the
ownership of the Owners’ Land or any part or parts
thereof.
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4.2
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Brown & Sharpe and Lanz
hereby agree to enter into any Planning Agreement required by the
Local Authority in connection with the Planning Permission on terms
satisfactory to Brown & Sharpe and Lanz acting reasonably
PROVIDED THAT any Planning Agreement contains an indemnity by SITA
in favour of Brown & Sharpe and Lanz against all actions
proceedings claims demands and loss of any kind whatever arising
out
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of and/or in connection with the
performance or non-performance of any obligations on the part of
SITA under the terms of the Planning Agreement.
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4.3
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Brown &
Sharpe and Lanz shall pay the cost (if any) in excess of [ * ] in
respect of the premium for the Environmental Insurance
Policy.
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4.4
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The Owners
shall not grant any new agricultural tenancies of the Owners’
Land during the Term save where they have obtained the prior
written approval of SITA (such approval not to be unreasonably
withheld or delayed) but shall be entitled to renew those
agricultural tenancies in existence at the date of this Agreement
being the Tenancy Agreement dated 14 January 1997 and made between
Lanz (1) SITA (2) and Messrs. R. E. Barwick and R. D. Barwick (3)
and the Tenancy Agreement dated 14 January 1997 and made between
Brown & Sharpe (1) SITA (2) and Messrs. R. E. Barwick and R. D.
Barwick (3)).
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SITA covenants with Brown &
Sharpe and Lanz as follows:
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5.1
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SITA shall at
all times proceed diligently with the Works so as to complete the
Works in accordance with the Planning Permission and the Waste
Management Licence and so as to complete the extraction of Gravel
by 31 December 2006 or as soon as possible thereafter;
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5.2
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SITA shall
procure and at all times until the end of the Term maintain with a
reputable insurance company an insurance policy in respect of
employers third party and public liability and SITA hereby
covenants to indemnify and keep indemnified Brown & Sharpe and
Lanz against any claim for death or injury to persons and/or loss
and/or damage to property arising out of the Works and/or the
Removal Works or otherwise in pursuance of this Agreement and SITA
shall within 28 days of receipt and at all times upon reasonable
request produce to Brown & Sharpe and Lanz and each of them the
policy or a certified copy thereof and all up-to-date endorsements
thereon and premium receipts.
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5.3.1
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within 10
working days of receipt of a written demand in respect of the cost
of the premium for effecting the Environmental Insurance Policy pay
to the Owners a maximum payment of [ * ]; and
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5.3.2
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during the Term
ensure that no act or omission on the part of SITA shall directly
or indirectly invalidate the Environmental Insurance Policy or
render it ineffective.
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5.3.3
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* Confidential
portion has been omitted and filed separately with the
Commission
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5.4
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SITA shall (at
no cost to the Owners) ensure that all licences permits consents
and the like required for the execution and completion of the Works
are obtained so as to allow the Works to proceed in accordance with
the Planning Permission. SITA shall not agree to the amendment
revision or alteration of, or apply for, any licence permit consent
or the like without the prior written consent of the Owners (such
consent not to be unreasonably withheld).
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5.5
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SITA shall
throughout the Term comply with all statutes notices requirements
regulations conditions and all other legally binding obligations
including in particular (but without prejudice to the generality of
the foregoing) all Environmental Law the conditions imposed in the
Planning Permission and the Waste Management Licence in connection
with the carrying out of the Works and/or the Removal
Works.
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5.6
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SITA shall be
responsible at all times during the Term for the payment of all
taxes (including for the avoidance of doubt any aggregates tax)
outgoings or expenses of an annual or recurring nature arising out
of or in connection with its use of the Owners’ Land for the
execution and completion of the Works including without limitation
general and water rates.
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5.7
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SITA shall
provide at its own expense all plant machinery and civil
engineering operations required for or in connection with the
Works.
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5.8
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SITA shall
undertake all negotiations with any agricultural contractors of
either of the Owners working on the Owners’ Land or any part
or parts thereof and where any part or parts of the Owners’
Land shall be in actual use for agricultural purposes shall give to
the Owners (or either of them as the case may be) and to their
agricultural contractors reasonable notice in writing of the
requirement of such part or parts of the Owners’ Land for or
in connection with the Works in accordance with the Planning
Permission provided that if any such part or parts of the
Owners’ Land shall at the time of the giving of such notice
be under crop then Brown & Sharpe and Lanz (or either of them
as the case may be) shall not be required to release such part or
parts of the Owners’ Land until such crop shall have been
fully harvested unless SITA shall pay full compensation for
standing crops.
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5.9
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SITA shall take
all proper precautions so as to not interfere with or in any way
adversely affect the carrying out of farming of any part or parts
of the Owners’ Land not yet required for the Works and shall
indemnify and keep indemnified Brown & Sharpe and Lanz (and
each of them as the case may be) against any loss or damage
suffered either by Brown & Sharpe and Lanz or by their
agricultural contractors tenants or any other person or persons as
a result of any breach of or non-compliance with this
obligation.
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5.10
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SITA shall provide to each of the
Owners within 4 weeks of receipt thereof copies of all material
correspondence reports, notices and the like sent by SITA to or
received by SITA from the Environment Agency, the Local Authority
or any other government or local government body or agency in
connection with the execution of the Works by SITA. For the
avoidance of doubt all correspondence, reports, notices and the
like
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which are sent or received in
connection with any breach or potential breach of any condition or
requirement of the Waste Management Licence and/or the Planning
Permission shall be considered material for the purposes of this
clause 5.10.
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5.11
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SITA shall
forthwith assist the Owners in procuring the cancellation of entry
number 3 of the charges register of title number
MX150037.
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Brown & Sharpe and Lanz shall
(each in respect of its own land):
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6.1
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after
consultation with SITA take the appropriate steps to release
portions of the Owners’ Land from the current use or uses
thereof to enable SITA to carry out the Works in accordance with
the Planning Permission; and
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6.2
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consult with
SITA as to the appropriate crop to be planted on any portion of the
Owners’ Land in the two calendar years before such portion is
reasonably expected to be required for the Works so as to allow
SITA to proceed with the Works in accordance with the Planning
Permission and plant accordingly.
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IT IS HEREBY AGREED by the parties
as follows:
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7.1
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Subject to the
provisions of clause 7.7 from 22 January 1992 onwards until all
Gravel in or under the Land shall have been exhausted or until this
Agreement shall be determined SITA shall purchase on the terms
hereinafter described from the Owners in each Payment Year not less
than the Minimum Tonnage of Gravel.
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7.2
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SITA shall
purchase all Gravel extracted from the Land from the Owners at a
price calculated in accordance with the following
formula:
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Price per tonne [ * ]
x a
b
Where a = the figure in the
Department of the Environment, Transport and the Regions’
Monthly Bulletin Construction Indices for Civil Engineering Works
index (Series 3) (aggregates) for the month immediately prior to
the date of commencement of each year of the Term (the first year
for the purposes of this clause commencing on the first day of the
month in which excavation commenced on the Land and each subsequent
year on the anniversary thereof) and where b = 834.0 being the
index figure for the month of February 1986.
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*
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Confidential
portion has been omitted and filed separately with the
Commission
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7.3
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Payments in
respect of Gravel (calculated in accordance with Clause 7.2 and on
the basis of the accounts provided by it to the Owners as provided
by sub-clause 7.8 hereof) shall be made by SITA on a monthly basis
and shall be due within 7 days of receipt of a VAT invoice from the
Owners provided that such payment shall not be due before the date
which is 28 days after the end of each calendar month (provided
that if any such payment shall not be made within such period then
the whole of such payment due shall bear interest at an annual rate
equal to 4% over the base rate from time to time of Lloyds Bank plc
from the date on which the same first became due until payment in
full).
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7.4
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For the
avoidance of doubt it is agreed that if more than the Minimum
Tonnage of Gravel shall be sold in any Payment Year SITA shall make
payment in full for the amount actually sold at the then prevailing
price per tonne subject to the set-off provisions in sub-clause
7.7.
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7.5
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In the event
that more than the Minimum Tonnage of Gravel shall be so sold in
any one Payment Year the Owners shall have the option (a) to permit
SITA to postpone payment for the whole or part of the excess over
the Minimum Tonnage of Gravel until the following Payment Year
without interest being payable and (b) to treat the excess over the
Minimum Tonnage of Gravel as representing part performance of
SITA’s obligation to extract the Minimum Tonnage of Gravel
during the following Payment Year.
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7.6
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In the event
that less than the Minimum Tonnage of Gravel shall be sold in any
one Payment Year SITA shall within 28 days after the end of the
relevant Payment Year pay to the Owners an amount equal to the
difference between the price which would have been payable in
respect of the Minimum Tonnage of Gravel and the price payable in
respect of the amount actually sold provided that in the Payment
Year during which exhaustion of the Gravel takes place this
obligation shall not apply and SITA shall pay in accordance with
the terms of this Agreement only for such Gravel as is actually
sold.
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7.7
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In the event
that less than the Minimum Tonnage of Gravel shall be sold by SITA
in any one Payment Year SITA shall have the right to offset the
difference between the amount actually sold and the Minimum Tonnage
of Gravel against the excess sold above the Minimum Tonnage of
Gravel for the purposes of this clause in ensuing Payment Years
until the difference is extinguished.
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7.8
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All Gravel
removed from the Land shall be weighed and recorded over
SITA’s weighbridge on the Third Land and within 14 days from
the end of each calendar month during the Term SITA shall provide
to each of the Owners an account showing the quantities of such
Gravel extracted during the preceding calendar month and it shall
provide evidence satisfactory to the Owners as to the accuracy of
the quantities stated for each month and the Owners or their agents
shall at all times be entitled to enter upon the Land and any part
or parts thereof with or without workmen or equipment to check or
measure quantities of Gravel extracted or sold from the Land or to
verify any accounts provided by SITA in respect thereof.
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7.9
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While the Works are in the
process of being carried out if SITA shall during the Term extract
minerals from or tip material on any land adjoining the
Owners’ Land and SITA shall transport such minerals or
materials over the Owners’ Land or over part or
parts
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thereof it shall request the
Owners to permit such transportation and unless the same might
substantially affect the Owners’ use or enjoyment of the
Owners’ Land or any part or parts thereof the Owners shall
permit the same over a strip of land in a position to be fixed by
the Owners and not exceeding 10 metres in width (unless to do so
would be in contravention of the conditions contained in the Waste
Management Licence or imposed under the Planning Permission or any
Planning Agreement or any regulations orders notices or
requirements of any authority including the local planning and
highway authorities) and SITA shall pay to the Owners within 28
days of the end of each calendar month during which such minerals
or materials shall be so transported over the Owners’ Land a
sum equal to a royalty of [ * ] of the revenue received by SITA for
such minerals calculated in accordance with clause 7.2 of this
Agreement and/or [ * ] of revenue calculated in accordance with
clause 8 in respect of such materials (as the case may be)
(provided that if any such payment shall not be made within such
period then the whole of such payment due shall bear interest at an
annual rate equal to 4% over the base rate from time to time of
Lloyds Bank plc from the date on which the same first became due
until payment in full).
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7.10
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In the first
year and the last year of the Term, the amount of the Minimum
Tonnage of Gravel shall be calculated pro rata based on the number
of days in the Payment Year which fall within the first year or the
last year of the Term (as the case may be) and SITA’s
obligation to make payments to the Owners shall be adjusted
accordingly.
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8.1
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SITA shall
procure the tipping of Waste (and no other materials) into the Void
in accordance with all conditions contained in the Planning
Permission, any Planning Agreement, the Waste Management Licence
and all relevant laws including but not limited to Environmental
Law.
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8.2
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During each
Payment Year SITA shall pay to the Owners within 7 days of receipt
of a VAT invoice from the Owners in respect of each Account
submitted in accordance with clause 8.3.1 (provided that no payment
shall become due before the date which is 28 days from the end of
each calendar month) (the “Due Date”
):
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8.2.1
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until such time
as the aggregate of all charges (excluding landfill tax and VAT)
levied by SITA in that Payment Year for the tipping of Waste into
the Void equals the Income Threshold from time to time for that
Payment Year [ * ] of all such charges levied during the previous
calendar month (as set out in the Account to be provided to the
Owners in accordance with Clause 8.3); and
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*
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Confidential
portion has been omitted and filed separately with the
Commission
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8.2.3
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after the
aggregate of all charges (excluding landfill tax and
VAT)
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