Construction work

Tender description

The Council is granting an agreement for lease to Metaswitch Networks Limited in relation to land known as Genotin Road Car Park, the freehold of which is and will continue to be owned by the Council. Metaswitch wishes to develop an office on the land for its own use and has selected a developer, Stoford Enfield Limited, with which it intends to contract for the development. On the satisfaction of conditions precedent, Metaswitch will enter into a lease for at least 15 years. The Council willprovide forward funding to Stoford if Metaswitch and Stoford decide to develop the office. The Council’s intentionis to maximise its income from the leasing of the land to Metaswitch and the Council will be repaid its forward funding through rent to be paid by Metaswitch. The agreements do not require Metaswitch or Stoford to undertake works, the Council has not specified requirements for works and their specification and design will have been determined by Metaswitch and Stoford. The Council will enter into the agreements following a minimum 10 day calendar day standstill period starting on the day after this notice is published in the Official Journal of the European Union. The Public Contracts Regulations 2015 (SI 2015 No 102) (as amended) (the "Regulations") provide for aggrieved parties who have been harmed or who are at risk of harm by a breach of the Regulations to bring proceedings in the High Court. Any such proceedings must be brought within the limitation period specified by the Regulations according to the remedy sought. The Council considers that the agreements with Metaswitch and Stoford fall outside the scope of the Regulations because the agreements are an agreement for the disposal of land to Metaswitch and a funding agreement with Stoford, which collectively and individually do not amount to a regulated public works or public services contract. This is because: (a) the main purpose of the arrangements is the transfer of land, in the form of a lease, to Metaswitch; this is an exempt land transaction; Metaswitch has selected Stoford as its developer, any works will be carried out by Stoford for Metaswitch pursuant to a works agreement between Stoford and Metaswitch; the funding agreement is ancillary to that land transaction and is entered into with a view to maximising the Council’s income under the land transfer arrangements, with the repayment of the Council’s forward funding being made by Metaswitch by rental payments; (b) none of the agreements to which the Council is a party require Metaswitch or Stoford to carry out any works; if Metaswitch and/or Stoford decide not to carry out works, the Council may terminate the contractual arrangements; any works that Stoford elects to carry out must be carried out in accordance with certain requirements consistent with requirements customarily made by a funder in order to protect its funding; (c) the Council has not specified any requirements for works; (d) the Council has not influenced the type or design of any works; these will have been chosen by Metaswitch and Stoford and if Stoford carries out works it must comply with a specification which has been approved by Metaswitch; its only authority to determine the design is as planning authority; (e) if there are any services to be provided by Stoford and/or Metaswitch to the Council, they are purely incidental to the principal objectives of the arrangements, which are an exempt land transaction; (f) the development costs will ultimately be borne by Metaswitch as lessee.