COMHAIRLE CONTAE ÁTHA CLIATH THEAS
SOUTH DUBLIN COUNTY COUNCIL
MEETING OF SOUTH DUBLIN COUNTY COUNCIL
Monday, December 10, 2012
HEADED ITEM NO. 8
Corporate Service's Department,
County Hall,
Town Centre,
Tallagt,
Dublin 24.
29th November, 2012.
TO: EACH MEMBER OF SOUTH DUBLIN COUNTY COUNCIL.
Re: Proposed Disposal of 11 Hectares at Grange Castle Business Park, Clondalkin, Dublin 22.
An application, through IDA has been received from a Global Healthcare company to acquire 11 hectares at Grange Castle Business Park to construct a Life Sciences Global Healthcare Facility.
I recommend that subject to the provision of Section 183 of the Local Government Act 2001 and in accordance with Section 211 of the Planning and Development Act 2000 that the Council dispose of by way of a 999 year lease a site of 11 hectares or thereabouts as outlined in Red of Drawing no. 12_206_902 at Grange Castle Business Park, Clondalkin, Dublin 22 to Grifols Worldwide Operations Limited, 70 Sir John Rogersons Quay, Dublin 2 for the purposes of developing Life Sciences Global Healthcare Facility subject to the following terms and conditions which are to be incorporated into the proposed Lease.
1. That the lands being disposed of comprise approximately 11 hectares or thereabouts. The precise boundaries have yet to be established. A formal disposal map suitable for registration of the Applicant’s title to the lands in the Land Registry shall be prepared by the Council for inclusion with the legal documents but in the interim a draft plan for identification purposes Drawing No. 12_206_902 is annexed showing the site outlined in red. The map will show 5 metre wayleave area along the northern, southern and eastern boundaries and a 12 meter wayleave along the western boundary in favour of the Council, its nominees and assigns, for the purposes of laying services and utilities within the said wayleave areas. These will be required within the perimeter of the lands being disposed of to facilitate the future servicing by the Council of this site, the Business Park and any other lands.
2. That the consideration due to the Council shall be calculated on the basis of the sum of €550,000 (Five Hundred and Fifty Thousand euro) per hectare (the “Purchase Price”), payable, as to the amounts described at (a), (b) and (c) below:-
(a) 10% of the Purchase Price on signing and exchange of a Contract for Sale / an Agreement for Lease in respect of the site. Such amount to be refunded in the event that the development proposed for the site does not receive full planning permission, and/ or in the event of any of the terms and conditions of the disposal not having been satisfied.
(b) 80% of the Purchase Price within 15 business days of date of The Applicants entry onto the site for the purpose of commencing construction works on foot of the final grant of planning permission (provided that, for the avoidance of doubt, The Applicant shall be entitled to carry out due diligence and engineering analysis activities (including, but not limited to geotechnical analysis and studies, soils testing, water analysis, site borings, environmental assessments, etc.) prior to the payment of this sum in accordance with any building licence to that effect as described in paragraph 5.
(c) The remaining 10% of the Purchase Price on the grant of the Master Lease which shall occur at the time and in the manner set out at 10 below.
The Council shall be entitled to charge interest at a rate of eight per cent (8%) per annum on any outstanding sums in the event of failure by the Applicant to pay the foregoing sums on the above dates. This interest rate penalty shall be calculated on a daily basis for any period of time deposits are outstanding without cause.
3. Within 2 weeks of the date of this Contract the Council and The Applicant (or their appointed agents) shall meet on the Subject Property to: (i) agree and stake out the boundaries thereof according to the Contract Map; and (ii) agree the final measurement of the Subject Property so staked out. In the absence of agreement in respect of either the location of the stakes or the final measurement of the Subject Property, the matter shall be referred to an independent land surveyor of at least 10 years standing experienced in surveying industrial land and who shall act as an expert, whose decision shall be final and binding on the parties and whose costs shall be borne equally between the Council and The Applicant. The independent surveyor shall be asked to give his or her final decision on the matters referred to him or her within 2 weeks of the said referral.
4. That the Applicants must apply for full planning permission (and if required in connection therewith provide an Environmental Impact Statement) for the entire development on the site not later than 30th June, 2013. The Applicants shall forward to the Council within six months of the date of final grant of planning permission, and in any event, no later than one month prior to the Applicant commencing works on foot of the final grant of planning permission, a copy of the outline building programme for such works describing the key construction milestones which, it is acknowledged, may be subject to variation.
5. That: (i) if the construction works (meaning site preparation and shell and core construction) have not commenced within six months of the date of final grant of planning permission for the development, or by 31st December, 2013 whichever is the later, or such later date as may be agreed in writing with South Dublin County Council; or (ii) if shell and core construction works are not substantially completed in accordance with the final grant of planning permission within thirty (30) months from the date of commencement of such works then either party may by written notification on the other rescind the agreement for lease / contract for sale. In this instance the Applicant must reinstate the lands to its pre-development condition. And further that, in the event that the final grant of planning permission is issued containing conditions which the Applicant considers to be onerous, the Applicant may by written notification on the Council rescind the agreement for lease / contract for sale. In event of rescission on any of the foregoing grounds, any monies paid to the date thereof under 2 above shall be repaid to the Applicant without payment of interest. It is acknowledged that construction of the Life Sciences Global Healthcare Facility may occur on a staged basis and provided the Applicant have commenced and completed the first phase thereof within the time frames set out in this paragraph it will be deemed to have complied with its obligations herein.
6. That the Council shall enter into an agreement for lease or contract for sale in respect of the sale of the site to the Applicant (by way of grant of the Master Lease), based on and to give effect to these heads of terms, and which agreement / contract shall contain a licence authorising the Applicant to enter onto the site from the date thereof prior to the grant of the Master Lease, to carry out due diligence and site analysis (including, but not limited to geotechnical analysis and studies, soils testing, water analysis, site borings, environmental assessments, etc.) prior to the grant of final planning permission, and after the issue of such permission, to construct the Life Sciences global healthcare facility. The agreement / contract shall contain further reasonable obligations upon the Applicant with respect to that construction to ensure the satisfactory completion of the approved development on the site.
7. The applicant will be responsible for all planning levies and contributions payable in accordance with the Council’s Development Contribution Scheme made under the Planning and Development Act 2000. The Contributions under the Scheme are payable prior to entry on to the site or as otherwise agreed by the Council. The applicants must satisfy themselves as to the capacity of all services to service the proposed development.
[A special Arts contribution fixed at 50 cent per square foot of gross building areas shall also apply payable no later than the grant of the Master Lease subject to receipt by the Applicant of an invoice therefor.]
8. That all site investigations (including archaeological investigations), groundworks, overhead cable diversions, demolitions/site clearance/septic site removal (such works are subject to regulations and to obtaining the relevant statutory licences), services connections, development and associated costs incurred in the delivery of the entire completed development shall be borne by the Applicants.
9. That the Applicants shall undertake not to use the site for any purposes other than that of due diligence and site analysis prior to the final grant of planning permission and thereafter for the purpose of carrying out the proposed development, viz a Life Sciences Global Healthcare Facility and related facilities and office accommodation which contain its substantial operations and subject to the terms of the “Master Lease” (see 11 below). On commencement of the Master Lease all buildings shall be occupied by the applicants or their tenants, agents, employees, invitees and/or assigns in accordance with the terms of the Master Lease.
10. That the Applicant shall build nothing (except with the prior written approval of the Council) on the site except the buildings shown on the approved drawings and for which Planning Permission has been granted, as outlined in condition 3. An architect’s certificate of practical completion confirming that the development has been completed in accordance with the approved plans and specification for which planning permission has been granted shall be submitted by the applicant and shall be appended to the Master Lease. A maintenance Plan for the external areas and buildings shall be submitted to the Council.
11. That as soon as building works have reached eaves level (in other words the “topping-out” phase of construction, meaning that all foundations are in place, the structural system is erected and inspected, and the building is weather-tight with roof complete) in accordance with relevant planning permission(s) in the development on the site, and if the works have been carried out to the satisfaction of the County Architect acting reasonably, the Council will grant the Applicant a lease of that site. The lease shall be for a term of 999 years (commencing from a date to be agreed upon, but no earlier than the date of Practical Completion of the buildings thereon) subject to a rent of €500 per annum (exclusive of rates, taxes, and outgoings in respect of the site) which will be reviewed at the end of every 5 years of the term in line with any changes in the Irish Consumer Price Index. The Council’s Solicitors shall draft the lease for approval by the Applicant’s Solicitors. The lease granted shall be known as the Master Lease (“Master Lease”). The Master Lease shall provide that the lessee shall become a member of the management company for the Business Park, and shall pay the annual service charge described in accordance with the provisions of the Master Lease and appendices thereto.
12. (a) The Applicant shall at his own expense construct the roads and services from Point A to Point B measuring approx 223 meters in length, as shown on Drawing No 12_206_902 in accordance with the Council’s specifications and design. The Applicant will be responsible for the construction of these roads and services and shall form part of its planning application for the facility. The Council will grant a Building Licence to the Applicant to facilitate the construction of these roads & services and giving the Applicant access to all parts of Grange Castle Business Park as are necessary in order to facilitate that construction. On completion these roads and services will be handed over to the Council. The Council reserves the right to oversee and monitor the construction of these roads and services.
OR
12 (b) The Council shall construct the Road and services from Point A to Point B, measuring approx. 223 metres in length, as shown on Drawing No. 12_206_902 and shall recover the cost of construction of the roads and services from the Applicant , such cost to be recovered not to exceed €450,000.
13. That the Agreement to Lease or contract for sale is not to operate as a lease and it shall not be transferable save in the case of a financial institution of good standing which has entered into a mortgage with the Applicants specifically for the purposes of financing the Applicants to undertake the development of the site or to an affiliate, parent or subsidiary company of the Applicant.
14. That South Dublin County Council reserves the right, only to be exercised by the Council acting reasonably, to re-enter on the site and resume possession thereof prior to the date of grant of the Master Lease: (i) in the event that the applicants fail to commence and complete the buildings within the period specified at 4 above; or (ii) in the event of the dissolution, bankruptcy or insolvency of the Applicants save in the case where a Financial Institution which has entered into a mortgage with the Applicants for the purposes of financing the development of the site and enforces its security against the site. South Dublin County Council shall provide written notice of any intent to exercise this right and offer a 30 day cure period for rectification of any default on the Applicant’s part, including use of mediation/arbitration, or similar third-party intercession.
15. That during the building period and pending the grant of the Master Lease, the applicant will provide all reasonably required evidence of the ‘all risks’, public liability and employer’s liability insurance cover maintained by the Applicant for the construction period. It is acknowledged that following completion of the construction of the Life Sciences Global Healthcare Facility, the building and all insurable risks associated therewith will be included in the Applicant’s own insurance programme. All insurance will be subject to the approval of the Councils insurance advisors, acting reasonably and promptly sought by the Council.
The insurance shall, be in the joint names of the Applicant and the Council, or shall contain an indemnity to principals clause, and will be for such an amount as will provide cover for the full Reinstatement Value of so much of the building as is erected at any time together with a sum for Professional Fees and removal of debris charges
The Applicants shall also indemnify South Dublin County 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 Council is and shall be carrying out extensive construction projects in the Business Park. Both parties shall use their reasonable endeavours to ensure that any interaction between respective contractors employed to carry out any works including, but not limited to building or road works, is carried out in an open and transparent manner with engineers and liaison officers such as to ensure that no additional contract costs accrue to either party.
17. That no uncovered outdoor storage shall be permitted on the subject lands. All processing, packing, waste disposal or recycling and such like operations shall be carried out within suitable structures or equipment such as compactors located on the premises in accordance with any statutory regulations or requirements in that regard.
18. That all car and commercial vehicle parking areas, loading areas and service areas must be suitably landscaped and screened from public view. In this regard the Applicant shall carry out at the Applicant’s costs such boundary and landscape treatment works as the Council may reasonably require, bearing in mind the nature of the Park and provided that such works are not substantially more than required of any other occupiers of the Park during construction. Such works may, only where reasonable, be in addition to similar works required under a planning permission for development of the subject lands. The Applicants shall submit a copy of its landscaping and security plan to the Council’s Development Department prior to the grant of the Master Lease for approval.
19. That each party shall be responsible for their own professional (i.e. legal, engineering, architects, and other required consultants’) fees in this case.
20. That the Applicants shall pay any V.A.T., stamp duty or taxes for which it is lawfully liable arising at any stage in this transaction (except where any lawful exemption or relief therefrom applies), including on the creation of a Building Licence (if any), an Agreement to Lease or contract for sale, and a Master Lease.
21. That the Councils Solicitors shall draft the agreements, contracts and leases and may include further reasonable terms and conditions as deemed appropriate to give effect to the heads of terms set out herein, including provision for use of an expert or arbitrator process to settle any disputes arising, as appropriate, in order to achieve a reasonable balance in the protection of the parties’ respective interests in the matter. In the case of disputes concerning final measurement and valuation of the site for the purposes of calculating the Purchase Price, an 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 to be appointed by the President of the Society of Chartered Surveyors in the Republic of Ireland. The costs of any arbitration to be borne equally by the parties.
22. That the Applicants shall satisfy South Dublin County Council (acting reasonably) prior to exchange of the agreement for lease / contract for sale, that sufficient funds are available for the payment of the sums set out in paragraph 2 above, and prior to commencement of construction on foot of the final grant of planning permission or each phase thereof, to cover the capital costs of such construction or the relevant phase thereof as appropriate.
23. That the above proposal is subject to the necessary approvals and consents being obtained by both parties in order to allow full construction activities.
24. No agreement enforceable at law is created or is intended to be created until an exchange of contracts has taken place.
The lands being disposed of form part of lands acquired from Thomas J. Beattie (1978) and Bernard Murphy (1980) for residential, industrial, roads and open spaces development and from Alfred Beattie (1997) and Mervyn Eager (1999) for the future development of the Business Park.
Philomena Poole,
County Manager.