5.1 Following approval under paragraph 4 above, hubco will, when requested so to do in writing by the Relevant Participant(s), provide further Project Development Partnering Services to proceed regularly and diligently to develop a Stage 1 Approved Project into a detailed submission meeting the requirements of this paragraph 5, to be put to the Relevant Participant(s) (copied to the TPB) (a "Stage 2 Submission"). The Stage 2 Submission shall be presented to the Relevant Participant(s) as soon as reasonably practicable and in any case within the maximum period specified therefor in the Stage 1 Submission.
5.2 In developing a Stage 2 Submission hubco shall continue to liaise with the Relevant Participant(s) and relevant end users (in the case of end users, such end users to be such persons or organisations as the Relevant Participant(s) in consultation with hubco consider appropriate) as necessary to ensure the best available value for money is achieved through the appropriate consideration of all viable options and informed choices by hubco, stakeholders and the Relevant Participant(s). The Relevant Participant(s) shall, without prejudice to the requirements of Schedule Part 6 (New Project Pricing Report):
5.2.1 provide hubco with such information as to its/their requirements (including the Specific Requirements) and other inputs as hubco may reasonably require and shall assist hubco in the review of any draft designs and proposals in relation to the Stage 2 Submission. Any and all information and other input or feedback so provided shall be provided without warranty and on the same basis as the provision of any information pursuant to Clauses 14.4 to 14.6 and shall be without prejudice to the rights of the Relevant Participant(s) to approve or not approve any New Project as they, in their absolute discretion, deem fit under this Schedule Part 5; and
5.2.2 generally co-operate with hubco in relation to any Stage 2 Submission, including (without limitation) promptly providing:
(a) written confirmation of the Affordability Cap and/or any Specific Requirements or any change to such Affordability Cap and/or Specific Requirements;
(b) any information reasonably required by hubco enable it to satisfy the requirements of paragraph 5.3; and
(c) reasonable assistance to hubco in relation to procurement by hubco of all relevant Consents (provided that this sub-paragraph shall not apply to a Relevant Participant which is a Local Planning Authority exercising its functions as such).
5.3 Subject to paragraph 5.2, and without prejudice to the generality of Clause 8.1.6, hubco shall produce each Stage 2 Submission in accordance with the relevant Partnering Services Method Statement and shall procure that a Stage 2 Submission shall address all issues that have a potential impact on risk and/or price in respect of the proposed New Project and shall include as a minimum:
5.3.1 a value for money assessment in respect of the option given Stage 1 Approval:
(a) containing:
(i) a Pricing Report prepared in accordance with Schedule Part 6 (New Project Pricing Report);
(ii) an elemental cost plan updating the information provided at Stage 1, firming up on contingencies against identified risks and matters not known; and
(iii) financial model or Development Amount Analysis, as the case may be;
(b) explaining, in accordance with the relevant provisions of the Partnering Services Method Statement applicable to the Project Development Partnering Services, why hubco's proposals demonstrate value for money, taking into account construction and design cost, FM costs, lifecycle costs and all other relevant factors (cost related or otherwise); and
(c) confirming that such proposals would meet the relevant targets and commitments in the Key Performance Indicators;
5.3.2 where the transfer of properties by Participants or third parties to hubco or to Project Service Providers are required for the New Project, the terms for such transfers as agreed between hubco and the relevant Participants or third parties;
5.3.3 a draft Project Agreement relating to that New Project which contains, inter alia, the completed hubco's Proposals or sub-hubco's Proposals (as the case may be) (as defined in the relevant Project Agreement) which meet the Facilities Requirements and/or Service Level Specifications as applicable, and which reflects all proposed changes or amendments that have been proposed by hubco and agreed by the Relevant Participant(s) and potential Project Agreement Counterparty;
5.3.4 detailed design work (to RIBA Stage E) and submission of relevant building warrant applications
5.3.5 warrant applications;
5.3.6 plans and drawings;
5.3.7 requirements for planning approvals and all associated costs, including either evidence of the Planning Permission for the New Project, (including a report on all conditions attached to such Planning Permission setting out hubco's recommended strategy for dealing with the same) or a programme by which such Planning Permission will be obtained, taking into account the provisions of Clause 5.1 (Planning Matters);
5.3.8 without prejudice to paragraph 5.3.1, an explanation (together with appropriate supporting evidence) as to why the Stage 2 Submission meets the Approval Criteria (as defined in paragraph 5.4);
5.3.9 commitment letters from any proposed tenants or sub-tenants of the Facilities, where applicable;
5.3.10 an assessment of the effect (if any) on any employees of the Relevant Participants or proposed Project Agreement Counterparty, including any potential transfer of any such employees to any Project Service Provider or their Supply Chain Member and the cost implications of such transfer;
5.3.11 a timetable setting out the stages and timescales for the period between achieving Stage 2 Approval (as defined in paragraph 5.6.1) and the execution of the Project Agreement in relation to that New Project;
5.3.12 details of the competency assessments undertaken and the results of the same, in respect of the potential "Principal Contractor" for purposes of the CDM Regulations; and
5.3.13 Site Waste Management Plan, incorporating design stage and construction phase actions, including the estimated total mass of waste and the estimated recovery rate before mitigating actions, with a list of actions to reduce waste and increase the level of recovery (distinguishing construction, demolition/strip-out and excavation wastes as appropriate) and increase reused and recycled content.
5.4 For the purposes of this Schedule Part 5 (Approval Process for New Projects), "Approval Criteria" means the criteria against which any New Project is judged in determining whether it achieves Stage 2 Approval. The criteria are:
5.4.1 that the cost of the New Project is within the Affordability Cap or any increased Affordability Cap notified to hubco by the Relevant Participant(s);
5.4.2 that it has been demonstrated to the satisfaction of the Relevant Participant(s) that the New Project provides value for money including demonstration of continuous improvement in value for money where appropriate;
5.4.3 that the New Project meets the Specific Requirements and each of the Relevant Participant(s)' other requirements (including for the avoidance of doubt: design quality; sustainability; and terms and conditions of the Project Agreement) as identified at the time a New Project became a Stage 1 Approved Project;
5.4.4 that the Stage 2 Submission contains all the information required pursuant to paragraph 5.3 and has been produced in accordance with the relevant Partnering Services Method Statement;
5.4.5 in the case of DBFM Projects and D&B Projects that any proposed changes or amendments to the relevant Template Project Agreement (other than for project specific reasons reasonably acceptable to the Relevant Participant(s) and the Scottish Futures Trust) that have been proposed are acceptable to the Relevant Participant(s) and the Scottish Futures Trust;
5.4.6 that the implementation of the New Project would not breach Law; and
5.4.7 that the Stage 2 Submission was submitted within the maximum period specified therefor in the Stage 1 Submission (failure to do so shall mean that the Relevant Participant(s) are entitled to deem that the Approval Criteria are not met).
5.5 hubco shall submit its Stage 2 Submission to the Relevant Participant(s), copied to the TPB. It is expected that the TPB will provide a forum for discussion of such Stage 2 Submission. The Relevant Participant(s) shall be entitled to call for such reasonable information as they consider appropriate to enable them to decide whether the Stage 2 Submission meets the Approval Criteria. hubco shall reply promptly to all such requests for further information and assistance. If, acting reasonably, the Relevant Participant(s) find that any material aspects of the Stage 2 Submission are unsatisfactory to them, the Relevant Participant(s) shall notify hubco of the same and offer reasonable assistance to hubco to address such deficiencies. If hubco addresses such deficiencies to the satisfaction of the Relevant Participant(s), acting reasonably, paragraph 5.6.1 shall apply. If hubco is unable to resolve such deficiencies to the satisfaction of the Relevant Participant(s) (acting reasonably) paragraph 5.6.2 shall apply.
5.6 Within sixty (60) Business Days of the later of submission to the Relevant Participant(s) of a Stage 2 Submission and the date on which hubco provides them with all reasonable further information that has been requested and provided pursuant to 5.5, the Relevant Participant(s) shall give written notice of whether they:
5.6.1 approve the relevant New Project (in which case the New Project shall be deemed to have received "Stage 2 Approval"); or
5.6.2 reject the New Project:
(a) on grounds other than those set out in paragraph (b), (c) or (d); or
(b) subject to paragraph (c), on the grounds that it has failed to meet one or more of the Approval Criteria;
(c) because of any change to the Affordability Cap from that originally notified in the New Project Request, the New Project is not Affordable despite being within the Affordability Cap as originally notified in the New Project Request; or
(d) because hubco has failed the Track Record Test or because the Relevant Participant(s) have exercised a right to suspend exclusivity pursuant to Clause 23.3 or Clause 23.10.1.
Where the Relevant Participant(s)/potential Project Agreement Counterparty have not received all relevant FBC and other funding approvals prior to a Stage 2 Submission, any approval under paragraph 5.6.1 shall be conditional upon the Relevant Participant/proposed Project Agreement Counterparty achieving all relevant FBC approvals. Where such FBC approvals are not received within a period agreed with hubco (being not less than four (4) months of the conditional Stage 2 Approval), the Relevant Participant(s) will be deemed to have rejected the New Project on grounds set out in paragraph 5.6.2(a).
5.7 If the Relevant Participant(s) fail to notify hubco of a decision within the period of sixty (60) Business Days referred to in paragraph 5.6, hubco shall notify the Relevant Participant(s) of that fact in writing, referring to this paragraph 5.7. If the Relevant Participant(s) have not notified hubco in writing of a decision to approve or reject the New Project within a further twenty (20) Business Days of such notification, they shall be deemed to have rejected the New Project on grounds set out in paragraph 5.6.2(a).
5.8 If the Relevant Participant(s) reject the New Project on the grounds set out in paragraph 5.6.2(b), the Relevant Participant(s) and hubco will work together to address the reasons for such failure and hubco will attempt in good faith to produce a revised Stage 2 Submission which hubco shall re-submit to the Relevant Participant(s) as soon as reasonably practicable and in any case within thirty (30) Business Days of such rejection, which re-submission shall be treated as a Stage 2 Submission. If no re-submission is made within the said (30) Business Day period or the resubmitted Stage 2 Submission is rejected by the Relevant Participant(s) on the grounds set out in paragraph 5.6.2(b) or 5.6.2(d), it shall be treated as having been rejected and, subject to paragraph 5.10, neither the Relevant Participant(s) nor hubco shall have any further obligations in relation to the relevant New Project under this paragraph 5.8.
5.9 Where the Relevant Participant(s) reject or are deemed to have rejected a Stage 2 Submission:
5.9.1 pursuant to paragraph 5.6.2(a) or paragraph 5.6.2(c):
(a) hubco's Incurred Project Development Fee relative to the Stage 2 Submission will be paid by the Relevant Participant(s) within ten (10) Business Days of the date on which hubco receives written notice of the rejection (or the expiry of the four (4) month period referred to in paragraph 5.6 without the obtaining of all relevant FBC approvals for the Relevant Participant(s)/proposed Project Agreement Counterparty, if applicable); and
(b) unless the period of ten (10) years after the Commencement Date has expired, to the extent the New Project in question is a Qualifying Project, the Relevant Participant(s) shall not be entitled to procure the Required Facilities and/or the provision of the Project Services outside the terms of this Agreement and, if they do so, such action shall and shall be deemed to be in breach of Clause 9 (Exclusive Nature of this Agreement); or
5.9.2 pursuant to paragraph 5.6.2(d):
(a) hubco's Incurred Project Development Fee relative to the Stage 2 Submission will be paid by the Relevant Participant(s) within ten (10) Business Days of the date on which hubco receives written notice of the rejection; and
(b) the Relevant Participant(s) shall be entitled to procure the New Project outside the terms of this Agreement and shall not be or be deemed to be in breach of the provisions of Clause 9 (Exclusive Nature of this Agreement) unless, prior to the expiry of ten (10) years after the Commencement Date, the New Project is a Qualifying Project and they seek to commence the procurement of such New Project after expiry of any suspension of exclusivity pursuant to Clause 9.7, Clause 23.3 or Clause 23.10.1.
5.10 Subject to paragraph 5.8, if the Relevant Participant(s) reject a New Project pursuant to the provisions of paragraph 5.6.2(b) in respect of which a Stage 2 Submission has been resubmitted, hubco shall be entitled to refer the matter for consideration under the Dispute Resolution Procedure within ten (10) Business Days after receiving written notice of the rejection by the Relevant Participant(s). If, following a referral to Schedule Part 21 (Dispute Resolution Procedure), it is agreed or determined that the New Project rejected by the Relevant Participant(s) pursuant to paragraph 5.6.2(b) met the Approval Criteria the Relevant Participant(s) shall either:
5.10.1 declare that the relevant New Project is an Approved Project and that such New Project shall proceed in accordance with paragraph 5.13; or
5.10.2 declare that its rejection of the relevant New Project be treated as a rejection pursuant to the provision of paragraph 5.6.2(a) and the relevant provisions of paragraph 5.9 shall apply.
5.11 If, following a referral to Schedule Part 21 (Dispute Resolution Procedure) under paragraph 5.10, it is agreed or determined that the New Project did not meet the Approval Criteria, or hubco does not refer the matter for consideration under the Dispute Resolution Procedure in accordance with paragraph 5.10, the provisions of paragraph 5.12 will apply.
5.12 Where, in terms of paragraph 5.11, this paragraph 5.12 applies, the Relevant Participant(s) shall be entitled either to procure the Required Facilities and/or the provision of the Project Services covered by the relevant Stage 2 Submission outside the terms of this Agreement (whether or not the New Project in question is a Qualifying Project and whether or not the period of ten (10) years from the Commencement Date has expired), or not to proceed with procurement of the Required Facilities/Project Services, and, for the avoidance of doubt shall not be or be deemed to be in breach of the provisions of Clause 9 (Exclusive Nature of this Agreement) in either case. In the event that the Relevant Participant(s) are so entitled pursuant to this paragraph 5.12, then where the Approval Criterion on Affordability has not been met, they shall not, prior to the expiry of the 10th anniversary of the Commencement Date, make any change to the Facilities Requirements which, had it been made prior to the submission of the relevant Stage 2 Submission, would have been reasonably likely to result in a material change in the sums payable by the relevant proposed Project Agreement Counterparty in respect of the Project.
5.13 If a New Project becomes an Approved Project, hubco will carry out further work to develop appropriate Project Agreements to implement the Approved Project on the terms of the Stage 2 Submission (as the same may be amended from time to time by agreement between hubco and the Relevant Participant(s)).
5.14 The Relevant Participant(s) shall notify hubco in writing as soon as they become aware of any matter which may adversely affect the viability of any New Project including any:
5.14.1 Unreasonable Conditions or other planning issues likely to cause a material delay in the anticipated programme for the New Project;
5.14.2 material cost increases (whether on an aggregate basis or on a line by line basis); or
5.14.3 changes to funding which any Relevant Participant receives or to the way in which funding may be applied, either or both which may affect whether a New Project is Affordable,
PROVIDED THAT this paragraph 5.14 shall not apply to a Relevant Participant which is a Local Planning Authority exercising its functions as such.
5.15 The Relevant Participant(s) shall provide reasonable assistance to hubco in relation to the procurement by hubco of all relevant Consents and the entering into of the relevant Project Agreement(s). This paragraph 5.15 and paragraph 5.14.1 shall not apply to a Relevant Participant which is a Local Planning Authority exercising its functions as such.
5.16 hubco shall be responsible for performing its obligations under Clause 5.1 (Planning Matters) in respect of such Approved Project.