Minutes:
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.
Implementation
Date
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.