The Board was advised that Halton Borough Council (“Council”) would be required to enter into a number of contracts in connection with the Project (as defined in the Project Agreement referred to in paragraph 1 below), the primary ones being:
1. the project agreement (“Project Agreement”) between (1) the Council, (2) the Mersey Gateway Crossings Board Ltd (“Crossings Board”) and (3) the special purpose project company established by the preferred bidder to deliver the Project (“Project Company”);
2. a direct agreement between (1) the Council, (2) the Crossings Board, (3) the Project Company, (4) the agent appointed by the funders and (5) the Security Trustee (as defined in the Project Agreement);
3. the demand management participation agreement (“DMPA”) between (1) the Council (2) the Crossings Board and (3) the special purpose demand management participation company established by the Preferred Bidder;
4. the governance agreement between (1) the Council and (2) the Crossings Board; and
5. a deed of appointment for the independent certifier to be appointed in connection with the Project, such appointment to be entered into between (1) the Crossings Board, (2) the Project Company, (3) the independent certifier, (4) the Security Trustee and (5) the Council,
6. together the “Project Documents”.
The Board was further advised that the Council would be required to provide certificates in respect of certain of the Project Documents pursuant to the Local Governments (Contracts) Act 1997.
The Board considered a report that had been prepared by the Mersey Gateway Project Director, together with the Council’s legal advisers and the Operational Director (Legal and Democratic Services) in respect of the Project Documents, and the other documents which the Council would be required to enter into (together with the Project Documents, the “Transaction Documents”).
It was noted that the Council’s final business case (“Final Business Case”) together with the draft of the final funding letter from the Department for Transport (DfT) containing the capital and revenue budgets for the Project (“Final Funding letter”) had each been approved by Council on 11 December 2013. It was further noted that certain relevant extracts from the Final Business Case had been appended to the report.
The Board was also reminded that the Council was required, by the terms of the Final Funding Letter, to provide written confirmation that the Council agrees to the terms and conditions of such funding, including certification from the Council’s Section 151 Officer that the Council accepts the requirements set out in the Final Funding Letter.
The Board was advised that copies of the latest drafts of each of the Project Documents, the Final Business Case and the Final Funding Letter were and had been available at the Project Office for Members to review.
It was reported that some further matters of fine tuning to the current drafts of the Project Documents may be necessary between now and the date of Financial Close to implement the Project.
The Board also noted the procedure for the execution of contracts by the Council as set out in the Constitution of the Council adopted by resolution of the Council on 17 April 2013 (“Constitution”).
The Board was further advised that although this was a key decision (as defined in article 14.03 (B) of the Constitution, it had not been included in the relevant forward plan. However, it was reported that the procedure in Rule 15 (General Exception) of Chapter 4 of the Constitution had been followed.
Having concluded the confidential discussions, the public and press that had been excluded from the meeting for this item of business were invited back into the meeting to be present while the decisions were taken.
Reason(s) for Decision
As described in section 1.1 of the report.
Alternative Options Considered and Rejected
No alternatives were considered.
The necessary relevant approvals need to be obtained in advance of the date to allow the Council to enter into the relevant contracts at Financial Close.
RESOLVED: That the Board
(1) note the contents of the report and confirm the details of the project as set out therein;
(2) approve the draft of the Project Documents in their current form, noting that further amendments may be required between now and Financial Close;
(3) resolve that the entry by the Council into the Transaction Documents (as defined in paragraph 2.4 of the report) at Financial Close, will be necessary to implement the Project;
(4) note the appointment of Mark Reaney as Operational Director (Legal and Democratic Services) by the Council’s Appointments Committee on 17 April 2007 (as evidenced in the extract from the relevant resolution contained in Part 1 of Appendix 1), and note the specimen signature of Mark Reaney (contained in Part 2 of Appendix 1);
(5) in accordance with Article 15.04 of the Council’s Constitution, resolve that:-
i. any Officer of the Authority at Operational Director Level (as defined in the Constitution), together with another Officer of the Authority nominated by the said Operational Director, be authorised to sign any or all of the Transaction Documents; and
ii. the Operational Director (Legal and Democratic Services) or his nominee be authorised to attest the affixing of the Common Seal of the Council to any or all of the Transaction Documents;
as required, provided that:-
(1) in the circumstances set out in resolution (5) (i) such Officer and any nomination by such Officer be confirmed; and
(2) in the circumstances set out in resolution (5) (ii) such nomination be made:
(as the case may be) by the Operational Director (Legal and Democratic Services) using the form of letter attached at Appendix 1;
(6) resolve that each person so authorised by resolution (5) (each an “Authorised Signatory”) is further authorised to negotiate, agree and amend, and complete any missing information in, any Transaction Document or other agreement related to the Project as may, in the opinion of such Authorised Signatory, be required to deliver the Project including (but not limited to) any gaps lists prepared in respect of the Transaction Documents; and
(7) resolve that the Councils Section 151 Officer be authorised to provide such written confirmations as required by the Final Funding Letter and to sign such certificates based on the form set out in Appendix 2 as may be required in connection with the Local Government (Contracts) Act 1997 in relation to the relevant Project Documents.