COMHAIRLE CONTAE ÁTHA CLIATH THEAS
SOUTH DUBLIN COUNTY COUNCIL
MEETING OF SOUTH DUBLIN COUNTY COUNCIL
Monday, December 08, 2008
HEADED ITEM NO. H7 (b)
TO EACH MEMBER OF SOUTH DUBLIN COUNTY COUNCIL.
LD 1062
Re: Proposed disposal of site at Tymon North, Tallaght, Dublin 24.
South Dublin County Council to HSE
The Council proposes to dispose of a site at Tymon North, c 2.01 acres. The site is located in a mainly residential area. The HSE proposes to develop a Primary Care Facility on this site. In accordance with Section 211 of the Planning and Development Act, 2000, Section 88 of the Housing Act, 1966 and subject to the provision of Section 183 of the Local Government Act, 2001 subject to the following terms and conditions as recommended by the Council’s Valuer:-
1. That the relevant land is as shown outlined in red on the attached Drawings No. LA/33A/08 dated November 2008 comprising 8130 square metres or thereabouts (c.2.01 acres), subject to accurate mapping and measurement.
2. That the Council hold the Fee Simple Interest in the site.
3. That the HSE shall satisfy itself as to the boundaries and extent of the relevant site.
4. That the HSE development project on the site is anticipated to be a 100 bed Community Nursing Unit(s). If the HSE wishes to alter the use of the buildings in the future, it must first seek the permission of the Council in writing.
5. That the Capital Premium payable to South Dublin County Council shall be in the sum of €1,900,000 (one million, nine hundred thousand euro) payable as follows:
(a) €1,500,000 (one million, five hundred thousand euro) payable on the date of signing of the agreement to lease which must be signed no later than 10th April, 2009 .
(b) €200,000 (two hundred thousand euro) on the date of final grant of planning permission for the development.
(c) €200,000 (two hundred thousand euro) on the date of transfer of leasehold title which shall take place when the development is certified as being fully completed.
Interest at the rate of 12% per annum shall apply to any outstanding amounts which have not been paid as they have fallen due.
6. That the site shall be disposed of by way of a Leasehold Building Agreement i.e. an Agreement to Lease, incorporating building licence provisions, followed by the grant of a 999 year lease at a rent of €100 (one hundred euro) per annum, with five yearly rent reviews linked to changes in the Consumer Price Index in the intervening periods, when the approved development is fully completed. No transfer of the lease shall be permitted unless the HSE receives the Councils prior consent in writing.
The Agreement to Lease and other legal documentation shall be drafted by the Council’s Solicitor and shall include terms and conditions normally included in such documents.
The Council, at its absolute discretion, may at a future date on the application of the HSE or its successor(s), transfer the fee simple interest in the site, provided it receives consideration at a level of 50% of the site value at that time, subject to the HSE recouping a sum equivalent to the total purchase monies paid to the Council (without interest).
7. That subject to the provisions of conditions 8 and 14, if the construction works on the site have not commenced within nine months of the date of final grant of planning permission for the development or, if construction works are not certified as being fully complete within thirty months from the date of final grant of planning permission for the entire development, then either party may, by written notification, rescind the agreement. If a rescission notice is served by the Council, the HSE will be given a 45 day period to either (a) satisfy the Council that the rescission notice should be withdrawn or, If applicable (b) allow the HSE’s financial institution to step into the agreement and fulfil the HSE’s obligations.
8. That the HSE shall apply for full planning permission for the entire development on the site no later than 10th January, 2010. If this does not occur the Council, at its absolute discretion, may decide not to pursue this agreement or, alternatively to give the HSE an additional short period within which to lodge the application.
9. That if planning permission for a development on the site is either refused (by the Council or An Bord Pleanála), or granted subject to onerous conditions, then either party can decide to abandon the transaction without penalty or compensation due to the other party. The Council would also reserve the right to terminate the agreement if the HSE chose to appeal a Planning Authority decision and the Council would then refund monies paid to the Council (without interest).
Note: The entire Development on the site must be completed under one building contract in one phase or, alternatively, in not more than two consecutive phases amounting not more than thirty months in total.
10. That the HSE shall undertake not to use the site for any development purposes other than that of carrying out the development for which planning permission is obtained.
11. That as part of this agreement the HSE shall, at the date they fall due under the relevant planning permission for the purpose of commencing construction of the Development, pay any Council financial contributions including special contributions (if any) applicable to the Development, required as a condition of the grant of planning permission for the site. The HSE being aware of the level of financial contributions required agrees not to exercise any right to appeal against the financial contributions.
12. That all site investigations (including archaeological investigations), groundworks, services connections, planning fees, development and associated professional costs incurred in the delivery of the completed development on the site shall be paid by the HSE.
13. That an Agreement for Lease is not to operate as a lease and it shall not be transferable save, if applicable, in the case of a financial institution which has entered into a mortgage with the HSE which mortgage must be approved by the Council in writing and must have been entered into specifically for the purposes of financing the HSE to undertake the development of the site.
14. That the Council reserves the right, exercised reasonably and on the issue by the Council of a letter of notice at least two weeks prior to the event, to re-enter on the site, or any part of same and resume possession thereof including any buildings or structures thereon, should the development or phases thereof not be completed within the period specified above or, in the unlikely event of the bankruptcy of the HSE, save in the case of a Financial Institution which has entered into a mortgage with the HSE for the purposes of financing the development of the site.
15. That during the building period and pending the grant of lease(s), the HSE will insure the buildings against fire and all other insurable risks with an approved insurance company and pay all necessary premiums.
The insurance shall be in the joint names of the HSE and the Council and will be for such an amount as will provide cover for full Reinstatement Value of so much of the buildings as are erected at any time together with a sum for Professional Fees and removal of debris charges. If applicable, the HSE’s financial institution may be a mentioned party on this insurance policy.
The HSE and its design team shall also indemnify the Council against any claim for compensation which might/may be made by any party arising out of building works being carried out on the site, or any working areas or on any access points thereto.
16. That the Law Agent shall draft the agreements, contracts and leases and may include further terms and conditions as he deems appropriate, including Arbitration clauses, in order to protect the Council’s interest in this case.
In the case of disputes concerning valuation issues in the agreement the Arbitration clause shall refer to the appointment of a Chartered Valuation Surveyor to act as Arbitrator. This person to be appointed by agreement of the parties or, in default of agreement, be appointed by the President of the Society of Chartered Surveyors in the Republic of Ireland. The cost of any Arbitration to be borne equally by the parties.
17. That the HSE shall satisfy the Council that sufficient funds are available for the payment of the capital premium and the undertaking and completion of the proposed Development on the site. This information is required no later than 40 days from the date of approval of the members of South Dublin County Council to the disposal.
18. That subject to the relevant legislation and statutory regulations, the HSE shall pay any V.A.T., stamp duty or other taxes arising at any stage in this transaction, including (if applicable) on the creation of an Agreement to Lease or grant of a Lease.
19. That the HSE in designing and building the development shall have due regard to the rights and entitlements of the adjoining Scout Den property.
20. That each party shall be responsible for their own fees in this case.
21. The Council shall be entitled to retain wayleaves to any existing services traversing the site.
Please note that no agreement enforceable at law is created or intended to be created until exchange of contracts has taken place.
The land being disposed of is part of lands acquired from Doochary Investment Company in 1974 for the purposes of housing under the Housing Act, 1966.
J. Horan,
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County Manager