Protocol for the Acquisition and Disposal of Property

Version 1.3 Aug 2012

Table of Contents

Sections of the Protocol Page 3

1.0 Introduction Page 3

2.0 Acquisitions and Disposals Page 6

3.0 Property Transaction Guidelines Page 10

4.0 Property Management Page 17

Protocol Schedules Page 20

1 Definitions and Interpretations Page 20

2 Legal Issues to be Considered Page 21

3 Statutory Provisions Page 35

4 The Property Committee Page 36

5 Extract from the Code of Practice for the Governance of State Bodies Page 38

6 Guidance on Vacant or Derelict Properties Page 40

7 Standard Template Documents Page 41

Business Proposal Form Page 42

Guidance Format for Business Case Page 44

Property Transaction Application Form Page 45

HSE Policy on Third Party Ad-Hoc utilisation of HSE Facilities Page 49

Sample Licence Page 51

8 Summary of Approval Levels for Property Transactions Page 61

Amendments – Clarifications

Version Page Amendment – Clarification Approved by Date

1.1 31 Section 15 ‘Capital Grants’ – Redrafted to clarify Property Review Group

15 Dec 11

1.1 33 Section 21 ‘Termination of Leases and Licences’ – Clarification inserted as new section

Property Review Group

15 Dec 11

1.1 33 Section 22 ‘General’ – This was formerly Section 21 and has been renamed as Section 22

Property Review Group

15 Dec 11

1.1 61 ‘Protocol Schedule 8’ – New schedule created as a summary of the approval levels set out in Protocol Schedule 2

Property Review Group

15 Dec 11

1.2 14 Section 3.9, 2nd Bullet - Clarification on approvals for above

market value acquisitions or below market value disposals Property Review Group

21 Aug 12

1.3 2 Inclusion of Clarifications Table on Contents Page Property Review Group

24 Aug 12

1.3 5 Clarification of Reference to NFR 01 Property Review Group

24 Aug 12

1.3 61 Clarification to Protocol Schedule 8 Property Review Group

24 Aug 12

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1.0 Introduction

1.0 Introduction

As of 1st January 2005, all property previously held by any of the Health Boards became

vested in the Health Service Executive (“HSE”).

1.1 Property Protocol

This protocol sets out the procedure to be followed when the HSE

1. acquires or disposes of any interest in property (whether freehold or leasehold)

2. enters into any arrangement which diminishes or alters its interest in its property

(“property” to include land and/or buildings)

Terms used in this protocol are defined in Schedule 1.

For the purposes of this Protocol, “Freehold” interest in property can be understood as outright ownership of a property not subject to payment of a rent or other fee. “Leasehold”

interest requires the Lessee to pay a rent and usually periodic service and insurance charges to the Landlord who owns the outright Freehold interest in the property

Types of property transactions covered by this protocol include the following examples:

• Sale of Property by HSE

• Purchase of Property by HSE

• Leases - to include renewals, amendments, assignments and consents to sub

leases

• License Agreements

• Granting or extinguishment of Easements by HSE

• Compulsory Purchase Orders

• Capital Grants – Protecting the States Interest

• Deeds of Discharge where HSE release it’s charge over Third Party properties

• Priority Agreements required from HSE by Third Parties

• Deeds of Renunciation of entitlements to Statutory Tenancies

• Removal of Restrictive Covenants

• Rectification of Title

• Arrangements to facilitate Third Parties occupying HSE property on a temporary or

part time basis.

Please refer to Schedule 2 attached hereto for further guidance on the matters to be

addressed for each of the above transactions.

1.2 Relevant Statutory Provisions

The statutory provisions relevant to HSE property transactions include the Health Act

2004, Civil Law (Miscellaneous Provisions) Act 2008, Landlord and Tenant (Ground Rents)

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(No.2) Act 1978 and Landlord and Tenant Amendment Act 1980. Also the Disabilities Act

2005 and the Building Control (Amendment) Regulations 2009 (SI 521 of 2009), Planning and Development Acts. See Schedule 3 for list of relevant Acts.

1.3 Matters to be considered

In addition to the procedures set out in Section 2 of this protocol, the following issues should be considered in the acquisition or disposal by the HSE of any property or interest

in property to include the transactions set out at 1.1 above, by the designated employees of the HSE, pursuant to the authority delegated to them:

1.3.1 Whether the contemplated transaction falls within the ambit of any function

reserved to the Board of the HSE, the Chief Executive Officer or a National

Director. (See Section 2). These are “reserved” functions.

1.3.2 The retention by the HSE, for the benefit of the healthcare system, of properties that it currently owns or leases.

1.3.3 How the HSE can best secure and realise the value of its Capital investment in property owned by Third Parties upon the disposal of such properties. e.g. where

HSE provides Capital assistance to Third Party organisations which facilitates the

improvement of property held by those organisations or facilitates the purchase of

property by them. Regard must be had to National Financial Regulations which provide in greater detail the legal documentation required to ensure that HSE

recoups the value of its Capital investments upon disposal of Third Party assets

part funded by the HSE.

1.3.4 Any general or specific written directions issued by the Minister which may be

relevant to the proposed transaction (Section 10 of the 2004 Act). No such

directions have been issued to date.

1.3.5 Whether the proposed transaction is consistent with the terms of the Ministers sanction of the HSE’s Corporate Plan and Service Plan (including the capital plan)

for the relevant financial year.

1.3.6 Whether the proposed transaction would involve capital expenditure in excess of

the level allocated in the Capital Plan which is approved by the Minister with the consent of the Minister of Finance (Section 34 of the 2004 Act). If so, ministerial

consent is required.

1.3.7 If the transaction would require the HSE Seal to be applied to any document, the

Protocol for the Use of the HSE Seal (appended here) must be utilised. In general, where the HSE is acquiring or disposing of any property or interest in property or

agreeing to a variation of its entitlements the document recording such acquisition,

disposal or alteration must be sealed by HSE.

1.3.8 Compliance with the Code of Practice for the Governance of State Bodies (2009),

in particular Section E, ‘Specific Procedures to be Followed by State Bodies’. Schedule 5 to this protocol includes a detailed summary of the provisions of

Section E. In summary, specific Board approval is required where an asset is disposed of or a grant of access to property for commercial arrangements with

third parties is made and the anticipated value of the transaction is at or above €150,000 unless the disposal or grant is undertaken by way of auction or

competitive tendering process. Disposals of assets to members of the HSE’s Board, or employees of the HSE, or their connected persons will also require Board

approval.

While not prescribed in the Code of Practice for the Governance of State Bodies

(2009), any instance where a property interest is acquired from a member of staff should be noted on the relevant property transaction documentation.

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1.3.9 The Health Service Executive’s National Financial Regulations. Particular

cogniscence should be taken of the principles of openness, transparency, fairness and competition essential in all procurement processes. This should be balanced by

commercial sensitivities attached to many property transactions.

1.3.10 Any acquisition funded by a capital grant should be in accordance with The Guidelines for the Appraisal and Management of Capital Expenditure Proposals in

the Public Sector (Department of Finance, 2005).

1.3.11 Any other codes of conduct or governance adopted by the HSE from time to time.

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2.0 Acquisitions and Disposals

2.0 Procedure for the Acquisition or Disposal of Property or Interests in Property

With respect to any proposed transaction in relation to property or an interest in property,

the designated employee must first consider whether the transaction would be a:

• Category 1 Transaction, in excess of €2 million exclusive of VAT and any Service Charge (See Section 2.1 below); Category 1 transactions require Board approval.

• Category 2 Transaction, equal to or less than €2 million exclusive of VAT and any Service Charge (See Section 2.2 below). The National Director of Commercial &

Support Services may approve Category 2 transactions pursuant to authority delegated to the director.

For the purposes of this Protocol, the value of a lease is calculated by multiplying the annual rental costs by the duration in years of the lease.

2.1 Category 1 Transactions

2.1.1 Business Proposal. Prior to contacting the local Estates Property Unit the service

needs to satisfy itself that the property transaction under consideration is justified.

When a service need has been identified which may have a property transaction

solution the local Service Manager should submit a Business Proposal to the relevant Regional Director of Operations or relevant Assistant National Director,

requesting clearance to develop a full Business Case. Each Directorate is

responsible for initial assessment of Business Proposals before advancing to Business Case stage.

An outline of what should be considered in the Business Proposal is detailed in Section 3.1 of this document.

2.1.2 Business Case. When the RDO or AND approval has been received for the Business Proposal a draft Business Case should be developed. The development

of the Business Case is the responsibility of the local Service Manager. The Business Case, developed to reflect the property transaction proposed, will be

submitted to the Property Committee for approval to proceed with the transaction. The local Estates Property Unit can assist with developing the Business Case.

An outline of what should be considered in the Business Case is detailed in Section

3.2 of this document.

2.1.3 On receipt of the outline Business Case by the Local Estates Property Unit the proposal will be reviewed and clarification may be sought as required. If a new

lease or property purchase is the preferred option the Local Property Unit will:

• Seek clarification on type, location and size of building required

• Carry out a property search in conjunction with the local Service Manager

• Develop a shortlist of 3-5 properties if available

• Liaise with the Service with regard to location and probable open market

cost and develop a detailed Option Appraisal and identify the preferred property.

• Enter into discussions with the owner and identify the asking price and the likely terms of the Lease. (The Service must not enter into discussions

with the potential landlord).

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• This information will be relayed to the Service Manager who shall agree on

the appropriate level (or set an upper limit) of the lease value or purchase price. The Service Manager shall instruct the Property Unit to proceed or

not based on budget considerations and affordability.

• Commence negotiations on the preferred property with the potential Landlord or Vendor

• Liaise with service again and repeat process if necessary

• Technical Report prepared - to include planning status, Fire Certification,

Disabled Accessibility, BER Cert, and any other relevant information/details. (See Section 3.3 for full list)

• Valuation report or comparable rental evidence.

• Agree draft Heads of Terms, subject to corporate approval on lease or

purchase

• Finalise the Business Case with reference to the preferred transaction

2.1.4 In tandem with the development of the Business Case a Property Transaction Application Form should be completed and signed by the local Property Manager,

the Estates Manager, the Integrated Service Manager or equivalent and the

Regional Director of Operations (or equivalent AND).

2.1.5 The Property Transaction Application Form and the Business Case supporting documentation is then submitted by the local Estates Property Unit to the

Corporate Property Unit. The documentation submitted to the Corporate Property

Unit should include:

• The signed Property Transaction Application Form

• The completed Business Case (including Needs Assessment and Option

Appraisal)

• Independent valuation/comparable rental evidence as appropriate

• Technical Report on the property including commentary on building

statutory obligations

2.1.6 The Corporate Property Unit will review the submission and the supporting

documentation and may request additional information or clarification.

2.1.7 All property submissions shall be reviewed by the Estates Property Review Group

and discussed with the National Director of Commercial & Support Services prior to the meeting of the Property Committee.

2.1.8 The AND Property shall present the property submission to the Property Committee for review. The minutes of the Property Committee meeting will

indicate acceptance or rejection of the transaction or will seek further information

in writing for later review. The NDCSS shall endorse or reject the Property

Committee recommendation.

2.1.9 When rejected the proposal will not progress and this will be notified to the Corporate Property Unit who shall then advise the local Property Unit of the

decision.

2.1.10 Where a transaction proposal is endorsed the National Director notifies the

Corporate Property Unit of his/ her recommendation to approve the transaction

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2.1.11 The Corporate Property Unit will prepare a briefing note on the transaction for the

NDCSS for briefing of the CEO / HSE Management Team prior to being added to the agenda of the next Board Meeting (The briefing note must be submitted 10

working prior days to the Board meeting as it has to be to be circulated with the

Board papers in advance of the next meeting of the Board. Board Meetings are held on the 2nd Thursday of each month).

2.1.12 The Category 1 Transaction, endorsed by the NDCSS shall be approved or rejected by the HSE Management Team at their meeting prior to the Board Meeting.

2.1.13 All Category 1 Transactions approved by the Chief Executive Officer shall then be added to the agenda of the next Board Meeting and submitted to the HSE Board

for their approval.

2.1.14 At the request of a Board Member (notified to the Secretariat in advance of the

meeting), the CEO, the NDCSS or a nominee, will attend the Board meeting or meet with some or all members of the Board by arrangement, to address issues

raised by the Board or individual members.

2.1.15 The Board will approve or reject the Category 1 Transaction, recommended by the

CEO. The record of the decision shall be contained in the minutes of the Board

Meeting along with the decision number (if approved). The minutes are available

on the HSE Web site.

2.1.16 On receipt of formal approval for the property transaction, from HSE Corporate,

the Local Property Unit, in conjunction with the legal advisors, shall conclude

negotiations based on submission reviewed by Property Committee and prepare contract documents for the approved Category 1 Transaction. Once these

documents are in final form, they will be executed in accordance with the HSE’s

Sealing Protocol.

2.1.17 The property shall be entered into the HSE’s Property Database in line with the National Property Database Protocol (HSE User Guide).

2.1.18 Title documents shall be securely lodged at the office of the National Estates Office once secure storage facilities have been sourced for same; until then all title deeds

and leases, etc, should be retained by the local Estates office.

2.1.19 Title, etcetera, should be registered on completion of the transaction.

2.2 Category 2 Transactions

The following procedures apply for Category 2 transactions:

2.2.1 Paragraphs 2.1.1 to 2.1.6 of the procedure for Category 1 Transactions apply.

2.2.2 The Corporate Property Unit shall examine the submission and present it the

Property Review Group for consideration.

2.2.3 The Property Review Group will indicate acceptance or rejection of the transaction

or will seek further information in writing for later review. Approval in principle may also be granted, depending on the nature of the proposals. This will involve a

follow-up submission for approval. The NDCSS shall endorse or reject the Property Review Groups recommendation. The Corporate Property Unit will issue the

minutes of the meeting to the Estates Managers / Property Managers

2.2.4 The NDCSS notifies the Corporate Property Unit of his / her endorsement of the

recommendation to approve the transaction by the completion of a signed decision form.

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2.2.5 In the case of proposals that have been approved the Corporate Property Unit will

advise the relevant Estates Manager / Property Manager in writing of the decision including any conditions or restrictions. The signed decision form will accompany

the approval letter.

2.2.6 On receipt of formal approval for the property transaction from Corporate Property Unit the local Property Unit, in conjunction with the relevant legal advisors, shall

conclude negotiations based on the submission reviewed by the Property Review Group and will arrange the preparation of contract documents for the approved

Category 2 Transaction. Once these documents are in final form, they will be executed in accordance with the HSE’s Signing and Sealing Protocol

2.2.7 The property shall be entered into the HSE’s Property Database in line with the

National Property Database Protocol (HSE User Guide).

2.2.8 Title, etcetera, should be registered on completion of the transaction.

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3.0 Property Transaction Guidelines

3.1 Business Proposal

The Business Proposal, which is required for approval within the relevant Service, should

address the following issues:

• The title of the proposal

• The Service and/or Care Group for whom the proposal is to be considered

• The Directorate and the current location of the Service / Care Group

• Initial needs assessment to identify the issue to be addressed

• Description of the current service arrangements

• Description of the drivers for service change/ service development / deficits under current arrangements

• Demonstrate linkage to the current Service Plan

• Other Services / Care Groups / Community Groups impacted by the proposal

• Risk assessment from a clinical and service delivery viewpoint

• Outline of the various Service solutions considered

• Preliminary option appraisal of the various potential solutions including the impact on accommodation infrastructure (freeing up of space / space modification

required / increased space demand / no change)

• The revenue funding implications (e.g. reduction / no change / increase), as appropriate.

• WTE implications (e.g. reduction / no change / increase), as appropriate.

• Funding source, if applicable

A Business Proposal Form template is included in Schedule 7 of this Protocol. The Business Proposal Form should be signed off by the Service Manager / General Manager or

equivalent and submitted to the ISM or AND as appropriate for consideration and approval

3.2 Business Case

Where a Directorate has approved a Business Proposal that encompasses a property transaction work can then commence on the more detailed Business Case document. The

relevant Service management should prepare the first draft of the Business Case and

liaise with the local Estates Property Unit who can assist with developing the technical

components of the Business Case.

The Business Case should test and develop the original Business Proposal, reassess the

impact of the options considered on physical infrastructure and appraise the available

preferred property transaction options.

The Business Case should address the following issues:

• Identify the Service and Directorate

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• Confirm Directorate approval to develop proposal to Business Case stage

• Indicate Service need and Service approach proposed

• Identify healthcare estate implications and develop property option appraisal

• State proposed Business Case solution

• Confirm technical suitability – technical report (see Section 3.3 below)

• Property Statutory obligations - (see Section 3.3 below)

• Valuation, if applicable (see Section 3.4 below)

• Budget/Financial considerations

The Business Case material will be submitted with a Property Transaction Application Form signed by the Estates Property Manager (or equivalent), the relevant Estate

Manager, the ISA Manager (or equivalent) and the RDO / AND (as appropriate).

The current Property Transaction Application Form template is included in Schedule 7

of this protocol.

3.3 Technical Reports

Prior to completing the acquisition of a property by Lease or Purchase the Estates Manager shall assign a suitable person to provide engineering technical advice and to carry out a

conditions survey in conjunction with service personnel. The conditions survey will report

on the following, where appropriate;

• Condition of the building including structure, fabric, finishes and existing services. Where the HSE accept an obligation under a lease to repair any part of the

structure of a property a Conditions Schedule should be exchanged and agreed

with the landlord prior to the execution of the Lease Agreement. The purpose of this Condition Schedule is to avoid or reduce the scope for argument around the

extent of the HSE’s obligation to carry out repairs upon expiry of the lease and to

reduce the instances of the service of a Dilapidations Schedule on the HSE by the

Landlord. The extent of the detail to be contained in the Conditions Schedule will vary depending on the duration of the Lease and the extent of repair or otherwise

of the premises upon first occupancy by the HSE.

• Suitability for proposed use and occupancy.

• Present planning permission and need for “change of use”

• Certificate of Compliance with Planning and Building Regulations

• Fire Certificate and fire safety compliance.

• BER Cert

• DAC Cert

• Health and Safety issues and access/ usability for persons with disabilities

/compliance with Building Control Regulations.

• Proposed and necessary alterations fit-out etc.

• Detailed costs of acquisition, alterations, fit-out.

• Identification of the presence of potentially deleterious materials, e.g. asbestos.

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• Any relevant Local Authority or site specific development plans.

Where external technical expertise (e.g. an architect, engineer or quantity surveyor) is required, the relevant expert shall be selected from the appropriate panel maintained by

HSE.

3.4 Valuation & Property Advice

In the first instance in-house expertise should be availed of. If in-house expertise is not available or not in a position to provide a valuation then the Valuation Office should be

asked if it can provide the service within the required timeframe.

If it is established that the Valuation Office is not in a position to provide a valuation then

valuations shall be sought from external valuers. Valuers shall be engaged in line with

current procurement regulations. If the Valuation Office indicate unavailability to

undertake valuations over a period, it is not necessary to contact the VO in each instance. However it would be prudent to contact the office if a period of 3-4 months has elapsed

since the previous request to the VO.

Valuations should be prepared in accordance with the appropriate sections of the Practice

Statements (PS) contained in the RICS Appraisal and Valuations Standards, 5th Edition

(The ‘Red Book’)

All floor areas should be checked and verified in accordance with the above measuring standards.

3.5 Legal Advice

Legal opinion should be obtained to guide the negotiation process and in the protection of the HSE interest for larger/ more complex transactions from the HSE’s Office of Legal

Services or, where necessary, from external companies. Legal advice shall be necessary at

conveyance stage in all property transactions.

3.6 Emergency Approval

When a need arises to acquire property or rent space to meet an unforeseen emergency

situation, the details/requirements and proposed solution should be reported in writing or email to the National Director of Commercial and Support Services. A decision will be taken

by the NDCSS together with the sanction of the relevant Regional Director of Operations or another National Director, who will if it is judged necessary, authorise implementation of

the solution.

The Board of the HSE shall be advised of all transactions under this ruling.

The NDSCC will have the authority to approve transactions up to €2million. Transactions over €2m in value will require Board Approval.

3.7 Disposal of Assets

The Code of Practice for the Governance of State Bodies states that “The disposal of assets

of State bodies or the granting of access to property or infrastructure for commercial

arrangements e.g. joint ventures with third parties, with an anticipated value at or above a threshold level of €150,000 should be by auction or competitive tendering process, other

than in exceptional circumstances (such as a sale to a charitable body). The method used should be both transparent and likely to achieve a fair market-related price.”

The three approved methods for disposal of HSE properties to be considered are

• By public auction

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• By a sealed bid tender process

• By open competition

It is recommended that prior to putting any property on the market a sales strategy is

developed in partnership with the appointed auctioneer (where applicable).

3.7.1 Public Auction

Disposal by means of Public Auction should be considered where there is a known

market and known interest in the property. An independent valuation of the open market value of the property should be sought prior to putting the property on the

market. A reserve price should be set and formally recorded on the file. It is

recommended that an approval in principle be sought prior to auction, to sell the

property if the reserve price is achieved.

On completion of the auction and with the reserve price achieved, the sale can

then be agreed subject to final approval by the HSE.

3.7.2 Sealed Bid Tender

When disposing of a property by way of a Sealed Bid Tender process, expressions of interest should be sought by advertising in the various media. Tender

documents should be issued to all interested parties and the sealed bids to be

returned by a specific date and time. All tenders must be opened at the same time and signed and witnessed by the appropriate HSE representative. All bids should

be recorded. If the successful bid is at or above the valuation the transaction may

be concluded. If the highest bid is less than the valuation, approval to proceed

should be sought prior to concluding the transaction at that level.

3.7.3 Open Competition

When disposing of a property by way of open competition the property is put on the market and advertised, etc, as if on sale by private treaty. When one or more

bids have been received and interest is being expressed in the property any interested parties who made a financial offer, can be invited to submit their final

bids in a sealed envelope by a specific date and time. All tenders must be opened at the same time and signed and witnessed by the appropriate HSE representative.

All bids should be recorded. If the successful bid is at or above the valuation the transaction may be concluded, subject to final approval. If the highest bid is less

than the valuation, approval to proceed should be sought prior to concluding the

transaction at that level.

3.8 Acquisitions

Properties may be purchased, subject to prior approval (see Section 2), by means of private treaty, public auction or by other means if, and only if, funding is available and the

agreed sale price represents value for money or can be demonstrated to be at or below market value.

Sustainability

By 2012 Public bodies can only buy or lease buildings with a B3 BER Rating and by 2015

can only buy or lease buildings with an A3 BER Rating - S.I. No. 542 of 2009. This will be incorporated into HSE Property Acquisitions policy.

All Public bodies must use the Triple E Register when purchasing energy equipment. http://www.seai.ie/Your_Business/Triple_E_Product_Register/

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The Triple E Products Register is a new benchmark of best in class energy efficient

products. Products on this register meet a minimum set of stringent efficiency criteria and typically will be of a best in class efficiency standard. The Triple E Register provides

assurance that you are purchasing a product of very high efficiency. The Triple E Register

currently covers; BEMS, Lighting, Motors & Drives, ICT, Heating & Electrical products, HVAC, Vehicles, Refrigeration, Catering etc. This should be considered for incorporation

into Energy concession specification.

A Draft Green Public Procurement Action Plan is being developed and will be published in

2012. OPW Architectural Services are currently writing a Guidance Document on green public procurement involving construction and this should eventually be reflected in the

delivery of the HSE capital plan.

3.9 Board Approvals

Board approval is required for all transactions that

• Are over €2m in value

• Are above market value acquisitions or below market value disposals

• Disposals of over €150,000 in value where an auction or competitive bidding process has not been used, before negotiations start and again before disposal of

the asset.

• Where an auction or competitive tendering process takes place and the highest bid is not the bid accepted.

Unless subject to a derogation (e.g. ESB Sub-stations for new developments, etc - see

below)

3.9.1 At frequent intervals, the Estates Office receives requests to cede certain rights and benefits to statutory bodies to enable them to carry out works for the benefit

of the Health Service Executive and the General Public.

These requests generally fall into two main categories –

(a) the ceding of small areas of land to the Electricity Supply Board for the provision of sub-stations / transformers or to the National Roads Authority /

County Councils etc. for road improvements in the interests of Public safety or

(b) requests for way leaves to permit services (water, sewerage, gas, electricity,

communication cables) to cross over or under HSE lands and property

The HSE Board has delegated to the NDCSS the following approval authority:

• authority to negotiate with and agree with the Electricity Supply Board the

granting of small tracts of land not exceeding 25 sq. metres in area by way

of fee simple or other means, together with cable way leaves and vehicular

access provided it can be shown that the installation will benefit the provision of health services and property in that area.

• the right to cede small areas of land to Statutory Bodies for road and public safety enhancement provided a market or similar value return is

obtained to the benefit of the HSE.

• the right to negotiate way leaves over HSE property for the supply or

transmission of utility services such as gas, electricity, water, drainage, sewerage and communication services. The NDE must be able to show a

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benefit for the Health Service Executive and / or a realistic fee paid to the

HSE for the granting of the way leave.

The National Director Estates will note and report on all decisions taken under

these headings to the Board at six monthly intervals.

3.10 Board Reports

The following transactions must be reported to the Board:

• Details of all disposals of assets or grants of access to property or infrastructure

for commercial arrangements with third parties below the threshold value of €150,000 without auction or competitive tendering process should be formally

reported to the Board, including the paid price and the name of the buyer, on an

annual basis.

• Details of and explanations for the disposals of assets or grants of access to property or infrastructure for commercial arrangements with third parties above

the threshold of €150,000 which have not been subject to auction or competitive tendering process should be included in the Chairperson’s annual report to the

relevant Minister.

• Disposal of assets to Directors, employees or their families or connected persons.

Note any such disposals must be at market value.

• All Emergency transactions (See section 3.6).

3.11 Insurances

With regard to Public Liability and Employers Liability insurance cover, at the suggestion of

the States Claims Agency, the following clause shall be included in all leases -

“The State Claims Agency (SCA) confirms that the Health Service Executive (HSE), its servants and/or agents, will be indemnified by the State in respect any claims for personal

injury and third party property damage arising from the negligence of the HSE, its servants and/or agents. The State indemnity is unlimited.”

The local HSE Insurance Manager (part of the Finance Directorate) shall be informed promptly of all of the following;

• When a property falls vacant

• When a vacant property is reoccupied

The local HSE Insurance Manager shall also be informed promptly on the completion of the following transactions:

• When a property is purchased

• When a property is disposed of

• When a lease is surrendered

• When the HSE exits from or terminates a lease (or license)

• When the HSE enters into a new lease (or license)

• When an external agency is subsumed into the HSE and it’s assets and liabilities are transferred to the HSE.

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3.12 Vacant Properties

When a Service vacates a property the relevant Service Manager / budget holder should:

• Notify HSE Estates

• Notify the HSE Maintenance Department

• Notify the HSE’s Insurance Manager

• Notify the Utility Suppliers (with meter readings for electricity, heating & water, as

appropriate, on the date of vacating)

The requirements of the ‘Estates Management Checklist for Vacant Properties’ should be

co-ordinated between the relevant Service, Estates and Maintenance.

The local Estates office should then update the Property Database record in respect of the

change in status of the property. Schedule 6 contains outline guidance on the treatment of vacant or derelict properties. It should be noted that the treatment of vacant properties

(which may be occupied again) and derelict properties (which will not) may be different.

3.13 Adding Properties to the Property Database

The trigger points for including properties in the database are as follows:

Capital and Minor Capital Construction Additions

Notify Database Administrator at ‘Practical Completion’ under the construction contract for

new buildings or significant additions.

Freehold Acquisitions

Notify Database Administrator when either of the following is achieved:

• Contracts are signed and sealed

• The HSE takes up occupancy

Leasehold Acquisitions

Notify Database Administrator when any of the following are achieved:

• Contracts are signed and sealed

• The HSE takes up occupancy

• A payment has been made on foot of the lease (or licence)

For notification of properties released from the healthcare estate (e.g. sold, exit from lease/ licence) please refer to the Property Database User Guide.

(Please note, properties are not taken off the database but are marked ‘sold’, ‘surrendered’, ‘assigned’, etc in order to change their status from ‘Active’ to ‘Inactive’.

This preserves a record of property occupancy history on the database.)

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4.0 Property Management

Each year the HSE Service Plan sets out proposals on a Service by Service basis outlining

the objectives for the year. The Service outputs frequently have an impact on the

healthcare estate by creating demands or changing demands on the estate portfolio.

Equally, the HSE Capital Plan and the Estates Directorate’s property management activities can impact on the service providers operating from the diverse healthcare locations around

the country.

In order to pro-actively address these interactions the Estates Directorate will prepare an Estate Management Plan to govern and support decisions around the management of the

estate nationally. Four regional Estate Management Plans and a National Estate Management Plan will be developed. The regional plans will reflect the Government

priorities, HSE objectives and Estates strategies outlined in the National Estates Management Plan.

Each of the regional Estates Management Plans will set out the estate management

priorities for the current year in respect of capital investment and property management. The plans will be revised year-on-year to reflect Government and National HSE strategies

but they will also be subject to regular review during their current year of operation.

These plans will focus particularly on the estate management activities and decisions

necessary during the year in question. The plans will be prepared on a ‘rollover’ basis involving annual review and updating. Regular reviews of the current year will be required,

probably on a quarterly basis. The plans, when consolidated, will provide a national roadmap for estate management decisions and will inform the HSE’s estates management

strategy.

The capital plan projects currently approved should be listed for each Estates Area on a county by county basis. The deliverables for each project should be indicated as well as the

implications for any Services affected (e.g. Elderly, Mental Health, etc). The timescale for

the completion of the projects should be identified including any enabling projects and any

decanting or vacating of premises.

The property management focus will concentrate on the actions and activities that will be

necessary to manage the estate over the year including the dates or deadlines by which these actions must be undertaken, especially where time is of the essence. Any property

transactions that are currently being processed (freehold or leasehold disposals or acquisitions, etc) should be listed under the headings below. In addition any transaction

proposals that are being prepared for future submission to the Property Committee / Property Review Group should be listed.

Schedules will set out the actions to be taken in relation to leaseholds, licences and to

freehold properties reflecting actions to be taken in respect of acquisitions, relocations,

lease renewals, rent reviews, break clause activations, short term occupancy

solutions/decants, overholding situations, vacant properties, etc.

The resulting capital investment and property management plans for each of the four regions will be set out on a yearly basis broadly under the headings of the following

sections.

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4.1 Acute Services

The HSE has fifty hospitals which deliver a wide range of services to our population. The

reconfiguration of acute hospital services is enabled by the remodelling of existing hospital

infrastructure. Regional reconfigurations are based on service reviews.

The Health Service Executive’s main acute hospital capital investment priorities and property management strategies for the current year will be set out in each of the regional

Estate Management Plans.

4.2 Ambulance Service

The HSE’s ambulance service investment priorities and property management strategies for the current year will be set out in each of the regional Estate Management Plans.

4.3 Community Care Services

The Programme for Government states that “within the health capital budget, the

immediate priority areas will be primary care centres, step down and long term facilities

and community care facilities such as day centres for older people”. Unsuitable psychiatric institutions will be closed and more appropriate community-based facilities will be

provided. The necessary property management actions will be identified in the regional

plans for the following care service areas.

4.3.1 Primary Care

Each regional Estate Management Plan will identify the status of Primary Care Centre

delivery for that region, any related capital plan projects and the property management proposals related to the resultant reconfiguration of the property portfolio, dealing with the

impact on existing freehold or leasehold properties.

4.3.2 Mental Health

Under the asset disposal programme each region will prepare a schedule of properties for

disposal and seek approval from the HSE Property Review Group to progress these disposals on an individual basis in line with this property protocol. The properties in

question will be listed in each of the four regional Estate Management Plans. In addition, consequent property management decisions required in order to optimise the remaining

estate performance will also be listed in the plan.

Mental health facilities that are being incorporated in Primary Care developments will also

be listed in the plan.

4.3.3 Older Persons

Progress on the delivery and commissioning of CNU projects and related property

utilisation decisions impacting on both freehold and leasehold properties, taken in conjunction with Service Managers, will be reflected in the property management

component of each of the four regional Estate Management Plans. The replacement and new bed capacity should be included and the facilities that will be decanted should be

listed. Any proposals for future use of the decanted facilities should be outlined.

4.3.4 Disability Services

The current year capital investment priorities and property management strategies relating

to the Disability Services and in particular the transfer of clients from congregated settings

to community based settings will be set out in each of the regional Estate Management

Plans.

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4.4 National Cancer Care Programme

The National Cancer Control Programme (NCCP) is responsible for each of the components

of cancer control with the exception of palliative care services. The HSE’s national cancer care investment priorities and property management strategies for the current year will be

set out in each of the regional Estate Management Plans.

4.5 Other Inclusion Items

4.5.1 Vacant and partially vacant properties.

Any properties, including buildings on a multi building campus, that are vacant should be

identified along with a high level commentary on their suitability for re-use. Any medium to long term proposals for re-use of these buildings should be included. Any properties that

are more than 40% vacant should be listed as such.

4.5.2 Schedule of properties for registration.

List the properties where registration with the PRA is proposed during the life of the plan.

4.5.3 Schedule of properties for rectification of title.

This will include any properties where rectification of title will be required during the life of

the plan.

4.6 Review Frequency

The national Estate Management Plan and the four regional Estate Management Plans will be updated on a yearly basis. The plans will also be monitored and reviewed at local and

regional level during the year.

4.7 HSE Policy on Third Party Ad-Hoc utilisation of HSE Facilities

The use of HSE premises by third parties, whether private or voluntary, on a continuous or occasional repeat basis is governed by this Property Protocol and requires the occupancy

to be formalised by way of a lease or an occupancy licence agreement. These leases and licences require the approvals as set out earlier in this document.

The HSE position on ad-hoc / once-off use of HSE facilities by third parties is set out in the “HSE Policy on Third Party Ad-Hoc utilisation of HSE Facilities” document.

The policy deals with use of HSE facilities by

• Voluntary Entities for Health and Social Gain purposes

• Voluntary Entities generating income for fund raising purposes

• Private Entities at the request of HSE

• Private Entities for their own income generation

The policy is contained in Schedule 7 of the Protocol.

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Protocol Schedule 1 Definitions and Interpretation

“2004 Act” means the Health Act, 2004.

“Board” means the board of the HSE.

“Category 1 Transactions” means acquisitions and disposals of property or interests in property valued at an amount equal to or in excess of two million Euro excluding VAT.

“Category 2 Transactions” means acquisitions and disposals of property or interests in property

valued at an amount less than two million Euro, excluding VAT.

“CEO” means the Chief Executive Officer of the HSE.

“HSE” means the Health Service Executive.

“Manager” means any LHO Manager or a HN Manager, as the case may be.

“Minister” means the Minister for Health and Children.

“Property Committee” means the Property Committee described in Schedule 4.

“Property Review Group” means the Property Review Group described in Schedule 4.

“WTEs” means whole time equivalent staff.

“Estates AND (Property)” means Estates Assistant National Director with responsibility for

Property

“NDCSS” means the National Director of Commercial & Support Services

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Protocol Schedule 2 Legal Issues to be considered

1. Sale of Property by HSE.

The sale of property by the HSE may be undertaken using public auction, sealed bid tender or open competition (see Section 3.7 of the Protocol). Advice should be sought from the

HSE appointed Auctioneer. Note requirements applicable to disposal of State assets set out

at Paragraph 3.7 of the Protocol

Ensure that all correspondence from HSE to a potential purchaser/their agent such as an

auctioneer is headed “Subject to contract/contract Denied” and contains a paragraph confirming that until the particulars of any sale are approved by the Board of the HSE and

the contracts duly sealed by HSE no binding agreement exists and that any

correspondence from the HSE or its agent is not to be considered a note or memorandum

within the meaning of the Statute of Frauds Act. The purpose of this paragraph is to avoid an exchange of letters from HSE personnel inadvertently committing HSE to an

enforceable contract prior to Approval and sealing of formal contracts by HSE

Ensure HSE auctioneer and solicitor are made aware, from the beginning of the sale

process, of any rights of way, boundary disputes, third party claims or entitlement, breach

of planning or fire safety or other statutory regulation or any other matter that might

affect the property. Bring all such matters to the attention of the HSE solicitor who will determine how these should be addressed in the contract for Sale

Except where the approval of the Board of the HSE is required, the National Director of

Commercial and Support Services may approve property sales by the HSE pursuant to authority delegated to him/her (see Section 2 of the Protocol).

2 Purchase of Property by HSE

It is strongly recommended that a member of HSE personnel/agent employed by HSE

attend at the offices of relevant Planning Authority (prior to commencement of negotiations) for purposes of examining the zoning and planning history of the property

proposed to be purchased and to establish whether the local authority has issued or threatened enforcement action for breach of planning or building regulations. Extend

planning search to property in the immediate vicinity and enquire regarding the existence

of sterilisation agreements, derelict site notices and particulars of objections made to previous planning applications affecting the proposed property. While the HSE solicitor

engaged to act in any particular purchase must conduct a Planning Search pre contract, the information which this search will disclose will be limited; hence the recommendation

that a personal attendance at the relevant planning office take place.

Take advice at an early stage to establish whether HSE will be liable to pay VAT on the

purchase price. New rules, effective from 1 July 2010, were introduced in relation to VAT

and State and Public Bodies (Finance Act 2010) and under the changes, the HSE will be

subject to VAT in respect of any transactions or activities they are engaged in unless it can

show it comes within the exceptions provided for in the legislation. VAT on property transactions is a highly complex area and each individual transaction must be considered

on its merits.

Ensure that all correspondence is headed “subject to contract/contract denied” as outlined at 1) above.

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Consider whether the property is in compliance with requirements for disabled access

provided for in the Building Control (Amendment) Regulations 2009 (SI 521 of 2009). In particular does it have benefit of a Disability Access Certificate which is required for all new

buildings? In the case of existing buildings compliance with access standards is required by

31 December 2015 and the costs associated with bringing a building into compliance would need to be considered prior to purchase.

A full structural survey to identify defects must be conducted prior to execution of

contracts.

Consider whether purchase by HSE should be subject to securing planning permission (for

change of use or modification works etc) on terms satisfactory to HSE and what is

appropriate time frame to secure that planning permission.

Except where the approval of the Board of the HSE is required, the National Director of Commercial and Support Services may approve property purchases by the HSE pursuant

to authority delegated to him/her.

Transfers of Property to/from Local Authorities

Property sale / purchase transactions with Local Authorities may be handled directly between the HSE and the relevant Local Authority. In the case of disposals to a Local

Authority it is a requirement to achieve market value for the property in question. These

transactions require approval through the property transaction approval process.

Reciprocal transfers of property to or from Local Authorities can be undertaken by

negotiation between the HSE and the relevant Local Authority. All such transactions will need to demonstrate a benefit to the HSE. These transactions are subject to the property

transaction approval process.

Approval must be sought from the NDCSS or the Board, depending on whether the transaction is valued at €2.0m or over and subject also to the market value transaction

provison.

3 Compulsory Purchase Orders affecting HSE property.

The rules and principles governing CPO’s in Ireland are set out in the Acquisition of Land (Assessment of Compensation) Act, 1919.

The HSE is liable to have its property acquired pursuant to a Compulsory Purchase Order in

the same way as any other property holder within the State. The date of service of the Notice to Treat by the Acquiring body (and not the date on which the lands are physically

acquired) is the relevant date for determining the value of the lands to be acquired. Under Compulsory Purchase and Acquisition legislation the acquisition itself cannot be disputed.

However, provision for Arbitration exists where there is a dispute as to the value placed on the lands which are to be acquired. Therefore particulars of all Compulsory Purchase Orders

should be notified to the Directorate of Estates in order that consideration can be given to using the arbitration procedure in an appropriate case.

Decisions to submit to Arbitration are taken by the Director of Commercial and Support

Services.

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Note that any works/improvements carried out to HSE property after service of a Notice to

Treat (which is effectively the notification that the property will be compulsorily acquired) will not be taken into consideration in calculating the value of the asset and therefore no

such improvements to the asset should be undertaken.

The HSE also has powers to compulsorily purchase property under the CPO legislation (See

Part VIII, Sections 77 to 96 of the 1947 Health Act). The legal and valuation fees associated with a CPO will be discharged by the acquiring authority.

CPO’s up to and including €2.0m will be approved by the NDCSS. CPO’s of value greater

than €2.0m will be approved by the Board.

4 Granting of Easements by HSE

An Easement is a generic term to include a right of way, a right to construct and lay pipes and other underground conduits, a right of light, a right of support, a right to carry water,

gas electricity or similar through or over HSE property

The significance of HSE granting an Easement over its property should not be underestimated as the existence of an Easement can restrict/prevent the future

development of the HSE property or seriously restrict the opportunities for the sale of the

property in the future

Once granted by HSE, the Easement will continue to affect and burden HSE property

indefinitely into the future and therefore consideration should always be given to limiting

the period during which the Easement will apply to a period of years or with reference to some other occurrence e.g. permit a right to lay pipes over HSE property only until the

property benefiting from same secures a connection to a public sewer/water supply.

The Easement granted by the HSE will benefit and attach to the property of the party seeking to acquire same, and is not a personal benefit for the use only of the party who

initially sought the Easement. Ordinarily the benefit of the Easement will be enjoyed by each successor in title to the party who initially acquired the Easement. Therefore, in

assessing the value of the Easement to be granted by HSE consideration should be given as to how the Easement granted will facilitate the future development of the lands

benefiting from same

In the case of way leaves required by the Local Authority, legal and valuation fees will be

paid by the relevant Local Authority. Estates approval at Corporate Assistant National Director level must be secured for the granting of an Easement.

5 Acquisition of Easements by HSE

Where the HSE requires an Easement in order to develop or maximise its property the

acquisition should be negotiated in the normal way bearing in mind the usual requirements to secure value for money etc.

Estates approval at Corporate Assistant National Director level must be secured for the

acquisition of an Easement by HSE

6 Extinguishment of Easement in favour of HSE

Where the HSE is asked to consent to extinguishing an Easement enjoyed by it e.g. where

it is asked to give up a right of way which it enjoys over an adjacent property careful

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consideration should be given as to how this might impact on the future use and potential

development/sale of the HSE property. Unless there is a compelling reason to give up an Easement HSE should exercise caution in relinquishing same and should consider insisting

on the granting of a suitable alternate Easement in lieu of the one to be extinguished e.g.

where an alternate right of way is granted in exchange for surrendering an existing right of way.

Approval at Estates Corporate Assistant National Director level must be secured for the

extinguishment of an Easement in favour of HSE

7 Grant of Lease or Licence by HSE.

The granting of a Lease or a sub-lease by the HSE over its property for whatever period of time will always require the approval of the NDCSS or the Board, depending on whether

the transaction is valued at €2.0m or over and subject also to the market value transaction proviso.

Normally, the Estates Corporate AND will be authorised to sign off on a Licence

arrangement but only where the local HSE solicitor has confirmed that a Licence is appropriate to the situation in question.

7.1 A licence or a lease Broadly speaking the essential characteristics of a Lease is that the Lessee (i.e. the third

party whom the HSE grant the Lease to) is entitled to exclusive possession of a HSE

property (or defined portion thereof) for a set period of time on clearly defined conditions

in return for the payment of a rent. The Lease will set out the use which the Lessee can make of the leased property e.g. for the provision of a specific service and will define when

the Lease arrangement starts (the commencement date), which is not necessarily the date of execution of the Lease document by HSE and the Lessee.

A Licence is best understood when contrasted with a Lease arrangement. A Lease provides

for continuous, exclusive occupation of a property. A genuine Licence does not confer any statutory entitlements on the third party occupier, does not require the payment of a rent,

and most importantly can be drafted in such a way as to ensure the Third Party does not get exclusive possession of the relevant property. A Licence is a mere permission to permit

a third party some use of a property for a limited period of time and on condition that the

Licence can be terminated at very short notice. By way of example a Licence arrangement

would be appropriate where the HSE wish to allow different non profit third party

organisations shared use of part of a HSE property for a limited slot of time each day/week where no market value payment is expected from the third party for this facility.

In the event of a dispute as to whether an arrangement is a Lease or a Licence, a Court

will not be swayed by the label the parties put on the arrangement but will examine the purpose of the arrangement, the intentions of the parties and nature and extent of the

obligations contained in the document in deciding in favour of Lease or Licence.

The situations where a Licence arrangement will be appropriate will be limited and will usually arise where a Third Party will occupy part only of a HSE property for a limited

period of time, possibly on a shared basis. In most cases where HSE wish to enter an agreement resulting in a third party occupying a HSE property a Lease will be the more

appropriate arrangement, particularly bearing in mind the opportunity afforded under S.47

of the Civil Law (Miscellaneous Provisions) Act 2008 to secure a Renunciation of rights

from a Tenant.

However where the third party is in receipt of S.38 or S.39 funding a Service Level

Agreement coupled with a limited licence may be appropriate, again depending on the

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individual circumstances and where it is clearly envisaged that the duration of the

arrangement is to be for a specific limited period of time with no likelihood of extension.

The facts of every arrangement will need to be considered individually in each case in

order to determine whether a Lease or Licence is appropriate. Relevant issues to be addressed will include length of intended period of occupancy, whether third party will

require exclusive possession, is it intended that third party will pay a market rate for entitlement to occupancy, extent of control which HSE require to retain over the property

once occupied by the third party.

7.2 Granting Leases

It is important to note that Landlord and Tenant Legislation gives a Lessee of property

certain entitlements including in some cases the automatic right to renewal of the Lease upon expiry. There may also be an entitlement, where certain criteria are satisfied, to

purchase the Freehold interest.

Historically, there was a reluctance on part of HSE to consider granting Leases over its

properties, due to the risk of the Lessees acquiring an entitlement to a long term Statutory

renewal of the Lease (this entitlement can arise where the term of the initial letting was for a period of 5 years or more) or the risk that the Lessee could, in certain circumstances,

acquire an entitlement to purchase the Freehold interest, thereby effectively depriving HSE

of its legal title to the property. Since the introduction of the Civil Law (Miscellaneous Provisions) Act 2008 it is now possible to secure a Renunciation from a potential Lessee of

HSE property. This should ensure that the Lessee does not acquire an entitlement to a

Statutory Lease under Landlord and Tenant legislation. In addition the HSE can take steps

to try and ensure that the Lease contains certain provisos and clauses to prevent the Lessee claiming an entitlement to the purchase of the Freehold interest from HSE.

In every case where the HSE grants a lease of any duration over its property it must

ensure that the prospective tenant executes a ‘Renunciation of Rights’ as set out more particularly in Paragraph 21 of this schedule below. As a matter of course the HSE should

insist that all Lessees of its property execute such a Renunciation in advance of taking up occupation as Lessee and prior to executing the Lease Agreement. The Renunciation

requires the lessee to take legal advice prior to executing same and this must be insisted upon by HSE, least the validity or enforceability of the Renunciation is dispute or queried

by the Lessee at a later date.

Where the HSE negotiates the granting of a Lease, the Term (that is the duration) should

be for the shortest possible period and consideration should be given to the provision of a break option in favour of the HSE at regular intervals and upon provision by HSE of the

minimum possible notice period in order to exercise the break option. In commercial arrangements the term of the lease is something that is open to negotiation and the

duration of the term has an impact on the level of rent. The inclusion of a break clause is also a negotiating tool which would also impact on the level of rent. Consideration should

also be given as to who is carrying out the fit out. For non commercial arrangements a flexible break clause is always essential.

Advice should be taken on whether HSE is required to charge VAT on the rent.

Since the 1 February 2010 “upwards only” rent review provisions in Leases have been

prohibited. Care should be taken to ensure that where the HSE is the tenant, the Rent

Review proviso should provide that “time is of the essence”. Where the HSE is the

Landlord, particularly of a commercial letting, the Rent Review clause should be negotiated

if possible not to be “Time of the Essence”.

26

Care should be taken to ensure that the “Permitted User” clause in any leases granted by

HSE is as restrictive as possible. Should a Lessee of a HSE property wish to expand the ambit of permitted user on an occasional or temporary basis, specific permission should be

sought from HSE and the outcome documented.

As a matter of course the Lease and Licence Agreements should include an indemnity by

the Lessee/Licensee in favour of the HSE. Broadly speaking an Indemnity will require the occupant of the HSE property (is the Lessee or Licensee) to fully compensate HSE should a

third party suffer an injury on the property arising from the negligence of the occupant.

The Template Licence attached as an Appendix under Schedule 7 of this Protocol is for

reference purposes only. Under no circumstances should the template licence be used by

service providers without firstly taking advice from the local Property Unit and the HSE solicitor on whether a Licence is the appropriate arrangement.

7.3 Tenant Improvements

A Tenant should always seek approval to carry out works to a HSE property as

entitlements to a new lease can also be acquired through “Improvement Equity”. This also

applies to the HSE where they are the tenant. It should be a requirement that the Tenant provides advance evidence by way of Architect or Engineers opinion that the proposed

works comply with existing planning permission and the building regulations. Upon

completion of the works a Certificate of Compliance with Planning and the Building Regulations must be secured from the Tenant’s professional advisor in consultation with

the HSE solicitor.

A tenant can in certain circumstances seek compensation for improvements from the HSE in respect of works carried out by the tenant to HSE property. This is an extremely

technical area governed by Part IV of the Landlord and Tenant (Amendment) Act 1980.

An improvement is defined as any addition to or alteration of the buildings comprised in the tenement and includes any structure erected on the tenement which is ancillary or

subsidiary to those buildings and also includes the installation in the tenement of conduits for the supply of water, gas or electricity but does not include work consisting only of

repairing painting and decoration or any of them.

In certain circumstances as defined in Part IV of this Act a tenant can seek compensation

for such improvements upon termination of the tenancy. The amount of compensation for

improvements shall be such sum as may be agreed between the HSE and Tenant or in

default of agreement, shall be the capitalised value of such addition to the letting value of the tenement at the termination of the tenancy as the Court determines to be attributable

to the improvements.

Where there is a concern that the possibility of a claim by a tenant for compensation for improvements may arise, detailed legal advice must be taken to establish the likely

exposure to the HSE.

7.4 Dilapidations Upon the expiry of a lease the HSE should examine the condition of its premises and

consider whether the tenant is liable for any outstanding repairs under the lease. Where the tenant has not repaired the premises to the standard required by the lease the HSE

should prepare a Schedule of Dilapidations and serve same on the tenant to ensure that

the HSE receives either the cost of the necessary repairs or ensures that the tenant carries

out the necessary repairs.

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8. Renewal of Leases by HSE in favour of third parties

Where the HSE intends to renew or extend a Lease already in place in favour of a third

party approval must be sought from the NDCSS or the Board, depending on whether the

transaction is valued at €2.0m or over and subject also to the market value transaction proviso.

The HSE solicitor must be instructed to prepare the documentation which will specify the

additional term and record any other variations such as rent, alteration to permitted user, or any additional terms agreed.

In circumstances where the third party in occupation did not sign a renunciation prior to

taking the first lease it should be insisted upon prior to granting the renewal. Indeed, entitlements to a new lease may already exist. There is a danger that the extension of an

existing arrangement might give rise to an entitlement on the part of the Lessee to claim a longer term statutory lease against HSE and this must be considered prior to agreeing an

extension.

Any concerns or issues which the HSE has regarding the state of repair of the leased premises should be addressed and dealt with by the third party prior to formalising the

renewal.

9. Amendments to Existing Leases in favour of third parties

The procedure set out at 8 above should be followed. Approval from National Director of

Estates is necessary. The agreeing of amendments to an existing arrangement can provide an opportunity to regularise and document any lease arrangements which were

verbally agreed or not properly documented heretofore.

10. Assignment of Leases granted by HSE

Where a third party wishes to assign (that is to transfer) its leasehold interest in a HSE property it is invariably a condition of the Lease that the consent of the HSE is required to

such an assignment and that HSE cannot unreasonably withhold its consent. Consideration should be given to the suitability/compatibility of the proposed user when consent for

assignment is being requested.

Such applications by third parties for consent to assignment will require approval from

Estates Corporate Assistant National Director.

11. Surrender of Leases to HSE by third parties

A surrender of a Lease by a third party involves the third party vacating the property and

handing back keys and vacant possession to HSE.

Technically because a Lease is a contract requiring a commitment by the Lessee to pay rent for the agreed duration of the arrangement the consent of HSE is required before the

Lessee can surrender the Lease but as the rent payable is usually a nominal amount accepting a surrender of a Lease should not usually create any difficulties for HSE.

Applications by third parties to surrender a lease will require approval from Estates

Corporate Assistant National Director.

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12. Taking of a Lease by HSE

The taking of a Lease (including a sub-lease) by the HSE will require the approval of the

NDCSS or the Board, depending on whether the transaction is valued at €2.0m or over and

subject also to the market value transaction proviso.

The principal legal issues to be considered when HSE intends to take a lease of a property include the following

The term of the Lease. The HSE will ideally require a flexible break clause (though this

may have an impact on the rent) which will permit it to exit (with or without payment of a

lump sum penalty) a lease on provision of an agreed period of prior notice. Where at all

possible the Lease should provide that time is not of the essence in determining when HSE serves its break notice as this will allow some leeway where HSE overlook the “window of

opportunity” within which it should notify the Landlord of its intention to exit the Lease.

The repairing obligation. Great care should be taken to agree precisely what the HSE is

liable to repair. In practice this is one of the most contentious and costly obligations under

any lease. There is case law which provides that unless the parties agree otherwise and document this, an obligation to repair can extend to and include an obligation on the part

of the Lessee (i.e. HSE) to put a premises into a state of repair i.e. in effect improve it’s

condition and not merely maintain its existing state of repair Service charges can include contributions towards the cost of repairing and maintaining the structure of the premises.

It is important to ensure when occupying on a short term lease that only costs appropriate

to short term occupation are committed to.

As a matter of pre lease negotiation the HSE should satisfy itself on the funding of the

sinking fund (if applicable) and whether the Management Company for the common areas remains registered on the Companies Register. The HSE solicitor will assist in these

enquiries.

Permitted User Clauses should be as flexible as possible to assist the HSE should it wish to assign its interest in a premise before expiry of its lease.

In shorter term arrangements HSE should ideally accept responsibility for internal repairs

only, and where the interior is already in a poor state of repair this should be recorded to

avoid any arguments that the interior damage was caused by HSE. To a large extent

market conditions will determine the extent of concessions which the HSE can negotiate to

limit its repairing obligations. In appropriate cases a Condition Schedule should be agreed with a Landlord prior to entering into a Lease again to reduce the scope for argument over

the extent of the repairs for which HSE is liable on expiry of the Lease.

Reinstatement does not mean repair. Reinstatement is where the tenant has an obligation at the END of the lease term to restore the premises to the state it was when it was first

taken over from the landlord, fair wear and tear excepted. Repair relates to the tenants obligations DURING the lease term and defines whether undertaking repairs to the interior

of the premises only (IRI basis) or undertaking repairs to both the exterior and interior of the premises (FRI basis) is the responsibility of the tenant. Repairing clauses are a

negotiating tool, e.g. A short term lease of a brand new premises could be on a FRI basis – lower risk and lower rent.

Where a Tenant to a Lease is in breach of its obligation to repair the leased premises the

Landlord owner of the building is entitled to claim compensation (called damages) against

the Tenant. The amount of damages claimed will usually be the cost of having the repairs carried out which are required under the lease. A Landlord will often prepare a Schedule or

29

List of the repairs which he claims the Tenant is obliged to carry out. This List is called a

Schedule of Dilapidations and forms the basis for the Landlord’s claim, which can be substantial, in particular where the repair obligation under the lease is onerous on the

Tenant.

Where the HSE as Tenant is served, or threatened with the service of, a Schedule of

Dilapidations it must have regard to S.65 of the Landlord and Tenant (Amendment) Act 1980. This legislative provision can be of considerable assistance to a Tenant faced with a

large claim for damages arising from breach of an obligation to repair or put into repair, leased premises.

In simple terms S.65 operates to “cap” or limit the compensation payable to a Landlord for

breach of the repair obligation. The basic rule is that the damages cannot exceed the amount (if any) by which the value of the reversion (that is in simple terms the Landlord’s

interest in the building) is diminished or reduced owing to the breach. To apply this formula the HSE would need to secure two valuations for the building namely a valuation

of the building in its dis-repaired condition and a valuation of the building repaired to the

standard required under the Lease. The “cap” on the amount of damages which the

Landlord is entitled to recover is the difference between the two valuations.

S.65 gives a Tenant further protection where it provides that unless the failure to repair is

due wholly or substantially to wilful (i.e. deliberate and intentional) damage or wilful waste on the Tenant’s part, no damages shall be recoverable by the Landlord if it can be shown

that:

1) having regard to the age and condition of the building, its repair in accordance with the lease obligation is physically impossible or

2) having regard to the age, condition, character and situation of the building its repair in

accordance with the lease obligation would involve expenditure which is excessive in proportion to the value of the building or

3) again having regard to the character and situation of the building it could not when so

repaired be profitably used or could not be profitably used unless it were re-built, re-constructed or structurally altered to a substantial extent.

As the interpretation of S.65 can be technical and problematic expert advice should be

taken in any case where the HSE is met with a substantial claim for damages due to

breach of a repair obligation. It can be particularly helpful to HSE in the case of an older building in a poor state of repair, as the purpose of S.65 is to prevent useless expenditure

and relieve tenants from liability on covenants the performance of which would involve such expenditure. The onus lies on HSE to establish that is has its liability reduced or

excluded under the section’s provisions.

Where the HSE is the landlord it also has the option of serving a dilapidations notice on the tenant upon or prior to expiry of the lease (see 7 above).

The termination date of the Lease. Where HSE take a lease for a defined period it is

imperative that a decision is taken BEFORE the expiry date on whether HSE wish to quit the premises, negotiate a short extension of the lease or negotiate a longer extension of

the arrangement.

30

Where the HSE allows the expiry date to pass and only thereafter advises the Landlord

that it wishes to exit immediately it may find that by operation of law a further extension of the lease for a period of 12 months or longer has arisen due to the delay in notifying the

Landlord until after the expiry date has passed. The terms of each lease will need to be

examined in detail and legal advice taken to establish whether the HSE can safely remain in occupation upon expiry of a fixed term lease paying rent on a monthly or other periodic

basis OR whether it is imperative for the HSE to exit the premises or take further steps (for example communicating its intention to exit shortly after termination of the lease) in

order to avoid incurring an obligation to pay an additional 12 months rent.

It is important to know the terms of the lease regarding overholding and to abide by those

terms. Some leases allow for overholding on expiration of the lease term on the same

terms as the expired lease. Overholding can allow greater flexibility for the vacation of premises.

It can be to the advantage of HSE not to formally renew a lease upon expiry as this can

avoid opening up a negotiation which might lead to a higher rent or more onerous terms

and conditions. In circumstances where the HSE feels this is the better course to adopt,

legal advice should be taken as a precaution.

Termination dates and dates for serving break option notices should be highlighted on the

Estates Terrier application (Property Database) to facilitate HSE exiting from unsuitable or surplus premises in a timely fashion and with the minimum of expense.

Structural Survey. Where the HSE proposes to enter into a longer term lease of a

building accepting an extensive repair obligation consideration should be given to have the property surveyed for latent defects prior to entering the Lease. In many cases the

financial commitment involved in such Lease arrangements can over time equal and exceed the costs of purchasing a property and as such the state of repair of the property is

as important as if it was being purchased outright.

DAC. Compliance with the requirements of the Disability Access Certificate should be considered per guidance set out re ‘Purchase of Property by HSE’ at Item 2 above.

BER Cert. A Landlord is required by law to provide a BER certificate to any Lessee of its

property but it would be good practice for HSE to require the BER to be made available at

point of preliminary negotiations. Landlords may resist incurring the expense of securing a

BER cert until HSE secures a formal Approval to take a lease.

13 Renewal of Lease by HSE

The renewal of leases requires approval by the NDCSS or the Board, depending on whether the transaction is valued at €2.0m or over and subject also to the market value

transaction proviso.

It is important that the renewal terms of a lease are fully negotiated and documented prior to the expiry of the initial lease to avoid risk of inadvertently ending up committed to

longer extension of lease than intended (see note above re ‘Granting of Lease to HSE’) As before there can be advantages to the HSE not taking steps to formally renew a lease and

the advices set out at section 12 above apply here.

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14. Consent to sub leases

Where the HSE is requested to give its Tenant permission to create a sub-lease it needs to

have regard to any entitlements which the sub Tenant might acquire against the property.

These entitlements might include a right to purchase the HSE freehold in a building or to insist on the automatic renewal/extension of the sublease upon its expiry. Again this is a

very technical area and in every instance where a Tenant in a HSE premises requests the HSE to allow permission for the creation of a sub Lease legal opinion must be secured to

protect the HSE property interest.

The taking of a sub-lease by the HSE will require the approval of the NDCSS or the Board,

depending on whether the transaction is valued at €2.0m or over and subject also to the

market value transaction proviso.

15 Capital Grants.

NFR 18 sets out in detail the charge/lien agreements required where HSE advance Capital

Funding to Third Party organisations. Where capital funding is made available to third parties a Grant Agreement must be entered into in all cases where the capital funding is

equal to or greater than €100,000. In addition a charge on the property (a lien) must be

put in place prior to the capital being drawn down.

This NFR regulation requires the HSE to register a charge against a property owned by a

third party to ensure that if the funding advanced by HSE is not used for the agreed

purpose and in compliance with HSE requirements, the HSE has an entitlement to take steps to enforce the sale of the third party property to recoup its capital investment.

The lien may be put in place by means of a Charge, Option Agreement or Bill of Sale. A

series of standard documents and a guidance document are available to explain and to assist in this process. This will allow the HSE to recoup the value of the initial grant in the

event of disposal of the property or if the property ceases to be used for the agreed purpose. It can also allow for a repayment of the grant amount in the event of disposal of

the property while the lien is still in place. A ‘Deed of Discharge’ completed by both parties is usually executed at the end of the lien period to remove the charge against the

property.

16 Deeds of Discharge required from HSE

Third Parties may request Deeds of Discharge from HSE in different circumstances. A Deed of Discharge is a written acknowledgement by HSE that it no longer has any claim or legal

interest in a third party property. It is a release of a prior charge or lien held by HSE in circumstances where HSE provided funding to a third party via a capital grant (see section

15 above).

A discharge is usually requested where the third party wishes to sell or otherwise dispose of its property over which the original HSE charge was registered or where the time frame

for the duration of the charge has passed.

In certain cases the amount of the refund due to the HSE will be clear from the charge/lien

agreement. Where the third party seeks a discharge in return for the payment required

under the charge a discharge should be made available without difficulty.

32

The approval required for a Deed of Discharge is dependent on value. Where the value of

the discharge is up to €5.0m Estates Corporate AND approval is required; at or above €5.0m NDCSS approval is required.

Where the third party seeks a discharge where it is not making any refund available to HSE the HSE is in practice being requested to voluntarily forego its entitlements and such

applications require NDCSS or Board approval.

Approval is also required where the HSE has no entitlements to a refund e.g. timeframe has passed and a discharge of the lien is requested. Discharges required from HSE where

they are in line with the lien agreement may be approved at Estates Corporate AND level.

In case of doubt the view of Corporate Property should be sought.

17 Priority Agreements.

A Priority Agreement is a written acknowledgement by HSE that its charge or lien over a

third party property will take second place to a charge or lien in favour of another. The

HSE agrees that should it have to enforce its charge by selling the third party asset to recover the capital funds advanced, it (HSE) will get paid only where there are sufficient

sale proceeds left over after other charge holders who have been given priority over HSE

get paid first.

Entering into a Priority Agreement can significantly reduce or entirely cancel the benefit

and protections which the HSE charge was intended to provide when it was initially

registered over the third party property.

Before consenting to the HSE charge moving down the chain of priority consideration should be given to the value of the property in question, the amount secured by the

charges in favour of others who now wish to gain priority over the HSE position and whether a social and community benefit will arise should HSE agreed to facilitate another

funding organisation taking priority over the HSE’s entitlements

Approval for Priority Agreements is dependent on value. For Agreements where the value is up to €5.0m Estates Corporate AND approval is required; at or above €5.0m NDCSS

approval is required.

18 Removal of Restrictive Covenants by HSE

A Restrictive Covenant is a condition contained in a legal document (usually a transfer deed) which prohibits a third party from using a property in a certain way or for a certain

purpose. While restrictive covenants are unusual and can be difficult to enforce historically in some circumstances the HSE would have transferred outright Freehold ownership of a

property to a third party on condition that the property transferred would continue to be used by the acquiring third party for a specific purpose or would not be used for a purpose

which the HSE felt was contrary to its policies

The presence of a restrictive covenant can greatly reduce the saleability of a property and in many cases render it un-saleable.

The removal of a Restrictive Covenant which was originally imposed on a third party for

the benefit and protection of the HSE is a transaction which requires Estates Corporate

AND Approval and a payment should be secured by HSE for its cooperation in appropriate cases.

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It is important to ascertain what the sale price of the property was and whether the

property was transferred at or below market value. If the property was disposed of below market value then the HSE should be compensated in some way for agreeing to remove

the restrictive covenant

If a Covenant is of a complex nature the opinion of Corporate Property should be sought.

19 Rectification of Title

Rectification of title may occasionally be requested for various reasons to address

deficiencies in title documents. These requests may result from errors, omissions, mapping

inaccuracies, to amend mapping errors, etc. The resulting legal documents require signing and sealing. Such applications will require Estates Corporate AND approval.

20 Arrangements to facilitate Third Parties occupying HSE property on a temporary

or part time basis.

Examples of such arrangements would include non profit organisations such as Scouts,

Gamblers Anonymous, Order of Malta, etc who would request use of HSE premises for

meetings and suchlike on an occasional basis for limited periods of time.

A Licence arrangement is usually suitable for such situations, though the organisation

should be asked to produce evidence that it has adequate insurance cover prior to gaining

access to HSE property.

Estates Corporate AND approval is required for such temporary occupancy agreements under a licence arrangement. See Protocol Schedule 7 (page 42) for ad-hoc utilisation of

HSE premises by third parties.

21 Termination of Leases and Licences.

The following transactions may be approved by Assistant National Director – Estates:

21.1 Termination of Leases by HSE with or without penalty. Where payment of a penalty is

involved the budget holder must be informed in advance that the termination will trigger a

revenue payment. Budget responsibility for the payment should be clarified.

21.2 Termination of Licences

These transactions do not require Property Review Group (PRG) approval. In each case the relevant Estates Office should amend the property database records to reflect the

terminations.

The natural completion of a lease or licence term does not require AND signoff but should be recorded on the property database.

22 General

22.1 Approval rendered invalid. Note that where an Approval for a specific property

transaction has been secured from the Property Committee and some terms of the transaction are subsequently amended/re-negotiated the original Approval may be

rendered invalid and a new approval will need to be secured. In any case where such an amendment/re-negotiation occurs the advice of the Corporate Property should be sought

to establish if a fresh approval is required.

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22.2 Renunciations. Note that in every case where the HSE grants a lease of any duration over its property it must ensure that the prospective tenant executes a

Renunciation of Rights pursuant to S.47 of the Civil Law (Miscellaneous Provisions) Act

2008. The tenant is required to have taken independent legal advice prior to executing such Renunciation. Contracting out is only possible where the basis of the right to a new

tenancy is section 13 (1){a} as amended which only deals with the 5 years occupational user with bona fide business use provision. It does not apply to tenancies which involve

occupation for a period of upwards of 20 years as these qualify for Part II rights under section 13 (1) {b}.

22.3 Defending a claim of adverse possession.

Requests will sometimes be made to the HSE by third parties to consent to the formal

transfer to it of legal title. Such requests usually arise where the third party has, over the passage of time and as a result of its physical possession of HSE lands, acquired what is

commonly know as “squatters title” to HSE property.

Advice should be taken from the HSE Solicitor to establish if the third party has built up the necessary period of occupation and satisfied the other legal requirements to establish

adverse possession. All such claims are to be notified to Corporate Estates where, in

consultation with HSE Legal Services, a decision in relation to defending the claim will be made.

Any approval to transfer title of a HSE property on foot of an adverse possession claim will

require the approval of the NDCSS (up to and including €2.0m) or the Board (greater than €2.0m).

35

Protocol Schedule 3 Statutory Provisions

In progressing each of the transaction described in this document cognisance should be taken of

the following statuary provisions.

Health Act 2004

Health Act, 1970

Health Act, 1953

In addition to the above Health Acts the following legislation needs to be considered.

Civil Law (Miscellaneous Provisions) Act 2008

Landlord and Tenant (Ground Rents) (No.2) Act 1978

Landlord and Tenant (Amendment) Act 1980

Landlord and Tenant (Amendment) Act 1984

Landlord and Tenant (Amendment) Act 1994

Disabilities Act 2005

Building Control (Amendment) Regulations 2009 (SI 521 of 2009)

Planning and Development Acts

Acquisition of Land (Assessment of Compensation) Act 1919

36

Protocol Schedule 4 The Property Committee and Property Review Group

Following the submission of completed property transaction applications to the Corporate

Estates office the applications will be processed as follows:

• Category 1 (transactions in excess of €2m) will be considered by the Property

Committee

• Category 2 (transactions up to €2m), will be considered by the Property Review Group

The Property Committee Composition

The Property Committee is an executive group set up by the HSE National Director of

Commercial & Support Services. The chairperson of the Committee shall be the National Director of Commercial & Support Services or will be nominated by the National Director of

Commercial & Support Services.

The committee is comprised of the chairperson and the Assistant National Director, Estates

– Property and nominees from:

• The Integrated Services Directorate;

• The Directorate of Finance;

• The National Directorate of Commercial & Support Services

• Human Resources.

• Quality Risk & Clinical Care Directorate

• Clinical Strategy & Programmes Directorate

The Secretary’s role shall be to co-ordinate the activities of the Property Committee, to

keep records of the Business Cases submitted to the Property Committee and the recommendations made in respect of each, to keep and circulate minutes of meetings of

the Property Committee, to draft any correspondence and keep records relating to property transactions, reviewed by the Property Committee, and other ancillary matters.

Role of the Property Committee

The Property Committee will function as an executive group that will apply their collective experience and knowledge of service requirements and property management, to vet and

recommend or reject property transaction proposals in excess of €2.0m. The committee shall operate in a manner that ensures an integrated, consistent and transparent approach

in it’s assessment of HSE property transaction proposals and will recommend as appropriate, property proposals to the National Director Commercial & Support Services,

Chief Executive or the HSE Board, in accordance with the current legislation and best

practice for property transactions in the public sector.

The Property Committee will:

• Appraise property transaction proposals with reference to adherence to the

Property Protocol.

• Make recommendations accordingly, to the NDSCC.

• Review all transactions since the previous Committee meeting.

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• Review Property Plans

The frequency of the Property Committee Meetings will be determined by the Property

Committee with reference to the volume of proposals submitted and ongoing workload of

the committee, however, the Committee should meet once a quarter at a minimum. Committee meetings will not take place when a quorum is not available. A quorum

requires that three members of the committee are in attendance, but this must consist of at least one representative from Estates and one from another Directorate. The committee

will determine the minimum grade, qualifications and experience required for nominees and substitutes that may be required to attend from time to time. The Estates function

shall supply the Secretary to the group.

All decisions of the committee shall be recorded and the minutes circulated to all relevant

parties.

The Property Review Group Composition

The Property Review Group is an executive group set up by the HSE National Director of

Commercial & Support Services. The chairperson of the Group shall be the National

Director of Commercial & Support Services or will be nominated by the National Director of

Commercial & Support Services.

The Group is comprised of the following:

• National Director of Commercial & Support Services (or nominee)

• Assistant National Director, Estates – Property

• Corporate Estate Manager

• Secretary to the Group

• Any other nominee required from time to time (transaction dependent)

The Estates function shall supply the Secretary to the group.

Role of the Property Review Group

The Property Review Group will function as an executive group reporting to the National Director of Commercial & Support Services that will apply their collective experience and

knowledge of property management, to vet and recommend or reject property transaction proposals up to and including €2.0m.

The frequency of the Property Review Group Meetings will be responsive to the volume of

property transaction proposals received. Frequency of meetings should reflect workload

demand and should be appropriately flexible timing to support the effective management of the transaction review process.

All decisions of the Group shall be recorded and the minutes circulated to all relevant

parties.

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Protocol Schedule 5 Extract from the Code of Practice for the Governance of State Bodies, 2009

Section E. Specific Procedures to be Followed by State Bodies

Part 18: Disposal of State Assets and Access to Assets by Third Parties

18.1 The disposal of assets of State bodies or the granting of access to property or

infrastructure for commercial arrangements e.g. joint ventures with third parties, with an anticipated value at or above a threshold level of €150,000 should be by auction or

competitive tendering process, other than in exceptional circumstances (such as a sale to a

charitable body). The method used should be both transparent and likely to achieve a fair

market-related price. The anticipated value may be determined either by a reserve price recorded in advance in the State body’s records or by a formal sign-off by the Board on

the advice of the Chief Financial Officer (CFO) or, if delegated by the Board, sign-off by the CFO or the Board Audit Committee, that, in its view, the anticipated value is likely to be

less or greater than €150,000. In determining market value, regard should be had to

accounting standards best practice in Ireland.

Compliance with use of Auction or Tendering Requirements

18.2 If an auction or competitive tendering process takes place and the highest bid is not the bid accepted, then specific Board approval is required before the disposal of the asset

or granting of access to property or infrastructure for commercial arrangements with third

parties can be completed. For reasons of transparency, such approval together with the

reason why a lower bid was permitted to be accepted should be noted in the minutes of

the Board.

18.3 Where an auction or competitive tendering process is not used and the agreed price is €150,000 or more, then specific Board approval is required before negotiations start and

also before the disposal of the asset or granting of access to property or infrastructure for commercial joint-venture arrangements with third parties can be completed.

18.4 No disposal of an asset or grant of access to property or infrastructure for

commercial arrangements with third parties should be completed until the officer authorising the disposal or grant of access has certified formally that (i) Board approval is

not necessary, with the reasons therefore, or (ii) Board approval, where necessary, has been obtained.

Directors and their Families

18.5 Disposal of assets to Directors, employees or their families or connected persons,

should, as with all disposals, be at a fair market-related price. Where the Board is considering a proposal for any such disposal, the Director connected to the potential

purchase should absent him or herself from the Board deliberations on the issue. A record of all such disposals to such persons (to include details of the asset disposed of, price paid

and name of the buyer) should be noted in a register kept for this purpose (minor disposals below €5,000, or a threshold approved by the Board may be omitted from the

register). This register should be available for inspection, if requested, by the Board or by any Director. The Board may specify that any disposal above an approved threshold should

be formally endorsed by the Board who may impose specific restrictions with regard to any such disposal.

Reporting of Disposals

18.6 Details of all disposals of assets or grants of access to property or infrastructure for commercial arrangements with third parties (save for connected third parties which is dealt

with in paragraph 18.5) below the threshold value of €150,000 without auction or

39

competitive tendering process should be formally reported to the Board, including the paid

price and the name of the buyer, on an annual basis.

18.7 Details of and explanations for the disposals of assets or grants of access to property

or infrastructure for commercial arrangements with third parties above the threshold of €150,000 which have not been subject to auction or competitive tendering process should

be included in the Chairperson’s annual report to the relevant Minister.

18.8 The Chairperson, in the annual report to the relevant Minister, should affirm that the disposal procedures, as outlined above, have been complied with.

40

Protocol Schedule 6

Vacant or Derelict Properties

1. Unoccupied Buildings

Notice is to be given by the relevant HSE Insurance Manager to the HSE’s insurers when any buildings become totally or substantially unoccupied or when an unoccupied building

or portion thereof is again occupied. See Section 3.12 of the Protocol for the

responsibilities of the Service Manager / budget holder in the event of vacating a building.

The following warranties apply to all unoccupied or substantially unoccupied buildings:

• All accessible windows must be boarded up or window locks fitted

• Entrance/Exit doors must be fitted with good quality five lever mortice deadlocks

• Electricity and water supplies must be disconnected (Exception – see 2 below)

• The premises must be checked on a monthly basis, and a log kept of each visit

In the event of non-compliance with any of the above, warranties cover is restricted to

‘Debris Removal only’ or to an ‘indemnity basis’, unless otherwise agreed with the insurers.

The following warranties apply to all unoccupied property:

• Fire Break Doors and Shutters

All firebreak doors and shutters will be kept closed and will be maintained in efficient

working order.

• Fire Extinguishing Appliances

Appliances will be kept in efficient working order

2. Buildings to be Occupied again

Where buildings will be occupied again, by the HSE or others, it may be reasonable to:

• maintain power to the building to power a fire alarm or security system

• maintain power to the lighting to allow the interior to be checked

• maintain a low level of heating to keep the building in a good state of repair.

The ‘Estates Management Checklist for Vacant Properties’ should be used to assist in

making these decisions and to ensure that the building is kept as safe as possible.

3. Notice to Utility Suppliers

Please note, in the event of vacating a building, the requirement for Service Managers /

budget holders to take meter readings for any utility services provided to the building on the date of vacation and of notifying the meter readings to the relevant utility companies -

electricity, gas and water supplier as applicable.

It is also important that Service Managers / budget holders notify utility suppliers with

meter readings when occupying premises. In this case there may be opportunities to transfer to a HSE energy contract with better tariffs.

The utility company providing phone and data line services to the premises should also be

notified of the requirement to cease the services.

41

Protocol Schedule 7

This schedule contains the following templates or guidance notes

Business Proposal Form

Guidance Format for Service’s Business Case (for property transactions)

Property Transaction Application Form

Policy on the Use of HSE Facilities by Third Parties

Sample Licence

42

PLEASE COMPLETE SECTION 1 TO SECTION 4 BELOW

S E C T I O N 1

Business Proposal Title:

Service / Care Group:

Directorate:

Current Location of Service:

Brief Summary of Proposal:

S E C T I O N 2

Needs Assessment:

Current Service Arrangements:

Service Changes / Developments / Deficits:

Annual Service Plan Linkage:

Linkage to other Services / Community Groups, etc:

Risk Assessment: (Clinical & Service Risk)

HSE SERVICE BUSINESS PROPOSAL FORM

43

S E C T I O N 3

Service Solutions Considered:

Option Appraisal of Identified Solutions

Proposed Service Solution:

Revenue Budget Implications: (reduction / no change / increase)

WTE Implications:

(reduction / no change / increase)

Accommodation implications:

(reduction / no change / increase)

Funding Source: (if applicable)

S E C T I O N 4

Approved by:

Service Manager / General Manager: (or equivalent) (Please Print Name)

Signature:

--------------------------------------------------------

Date:

ISM (Service) or AND (Function): (Please Print Name)

Signature:

--------------------------------------------------------

Date:

This form must be approved prior to development of a Business Case relating to a Property Transaction application where a change to the healthcare estate is proposed. (See Sections 2.1.1 and 3.1 of Property Protocol)

44

HSE Service Business Case

Business Case Format [The Business Case should be based on the Business Proposal earlier approved by

the relevant Service]

1. Identification • Directorate

• Care Group

• Service

• Location • Confirmation of Business Proposal signoff by ISM / AND

2. Service Need and Proposed Solution

• Service Need

• Service Solution • Estate / Property Implications (e.g. modify existing facilities / expand existing facilities /

develop or acquire new facilities)

• Infrastructure Option Appraisal (The property solutions considered and the outcome recommended – Liaise with Local Estates Office)

• Date the Business Case

3. Technical Backup

• Technical Report (Technical suitability, condition, fire safety, M & E installation, heating, hazards, ICT infrastructure)

• Statutory Obligation provision (Planning Permission, Fire Certification, Disability Access Certificate, Building Energy Rating)

• Valuation / Comparable Rental Evidence (if applicable) • Draft Heads of Terms (if applicable)

4. Property Transaction Application Form

• Complete the Property Transaction Application Form and submit with the Business Case material to the National Estates Directorate

• Floor area capital cost information and funding/budget considerations to

be provided on the Property Transaction Application Form • The Property Transaction Application Form that accompanies the

Business Case will be signed by the Estates Property Manager (or

equivalent), the relevant Estate Manager, the ISA Manager (or

equivalent) and the RDO / AND (as appropriate).

BC Format, V.3

45

Please Refer To Checklist Attached When Completing This Form

Please Tick As Appropriate

ACQUISITION DISPOSAL

FREEHOLD

LEASEHOLD

OTHER (Please state)

PLEASE COMPLETE SECTION 1 AND SECTION 2 IN RESPECT OF ALL TRANSACTIONS

S E C T I O N 1 Address of Property:

Description of Transaction:

Background Information: (Please provide on separate sheet if appropriate)

HSE Administrative Area:

HSE Dublin Mid Leinster HSE Dublin North East HSE West HSE South

Service/Care Group: (Please tick one or more boxes as appropriate)

Children & Families Acute Services Human Resources Older Persons Ambulance Service Finance Directorate Community Health Primary Care Estates Directorate Disability Services Population Health Procurement Social Inclusion Mental Health ICT Directorate

Other: Please specify

Is an existing property to be vacated? Yes No If Yes give details:

S E C T I O N 2 TECHNICAL REPORTS – PLEASE ATTACH SUPPORTING DOCUMENTATION AND CONFIRM THE FOLLOWING

(AS APPROPRIATE)

Please tick YES/NO or give reason YES NO Comment

Technical Report carried out on property

Planning Permission (PP) for Proposed Use

Fire Safety Certification (FSC) for Proposed Use

Valuation or comparable rental evidence undertaken and included

Maps (O.S. & Site Layout) included

Permitted use(s) of building under current PP and FSC if applicable:

Any exclusions to use(s) of the building:

Needs Assessment: (incl. Risk)

Option Appraisal:

VFM:

Please provide by way of completed template and attach for transactions under market value or over €150,000

Compliance with SI 542 of 2009: (BER)

Section 15(1) 15(2a) 15(2b) 15(3a) 15(3b) 15(3c) 15(3d)

HSE PROPERTY TRANSACTION APPLICATION FORM

Ref. No. (for Office Use Only)

46

Address of Property:

S E C T I O N 3 P L E A S E C O M P L E T E F O R L E A S E H O L D T R A N S A C T I O N S O N L Y

Lessor: (Please tick) HSE OTHER

(If OTHER please give name and address)

Lessee ((Please tick) HSE OTHER

(If OTHER please give Name & address)

Form of Lease (Please tick): New Renewal Assignment Surrender

Area (i.e. sq.ft./sq.m)

Rent (per sq.ft./sq.m) €

Term of Lease:

Previous Rent (per sq.ft./sq.m) (for renewal leases only)

€ Date Agreed:

Rental Cost per annum: (excl. VAT)

€

Total Cost of Rent (excl VAT) for Full Term:

€

Lease Commencement Date:

Occupancy Commencement Date:

Rent Free Period: (if any)

Details of VAT liability:

Rent Review Clause (details):

Break Option Dates & related penalty: (if any)

Initial Service Charge per annum: €

Notice Period re Break Option & related penalty: (if any)

Car Parking - charge per space: € No. of Spaces:

Renunciation: Yes No Any User Clause Limitations in lease?

Insurance Obligations:

Repairing Obligations:

Reinstatement Obligations:

S E C T I O N 4 P L E A S E C O M P L E T E F O R L I C E N C E T R A N S A C T I O N S O N L Y

Licensor: (Please tick) HSE OTHER

(If OTHER please give name and address)

Licensee ((Please tick) HSE OTHER

(If OTHER please give Name & address)

Term of Licence:

Area (i.e. sq.ft./sq.m)

Licence Fee per annum: (excl. VAT)

€

Total Cost of Licence for Full Term: (excl. VAT) €

Licence Commencement Date:

Occupancy Commencement Date:

Initial Service Charge: (if any)

€

Details of VAT liability:

Any User Clause Limitations in licence?

Other Relevant Information:

S E C T I O N 5 P L E A S E C O M P L E T E F O R F R E E H O L D AC Q U I S I T I O N S ( P U R C H A S E S ) O N L Y

Vendor:

Purchase Price: €

Area [Site] (i.e. sq.m/ acres/ hectares)

Area [Building] (i.e. sq.ft./sq.m)

Acquisition Method:

47

Address of Property:

S E C T I O N 6 P L E A S E C O M P L E T E F O R F R E E H O L D D I S P O S A L S ( S A L E ) O N L Y

Vendor:

Purchaser:

Disposal Price: € Area (i.e. sq.ft./ sq.m/ acres/ hectares):

Is property surplus to HSE requirements: Method of Disposal:

Reason for Disposal:

Verification that Service Manager is aware that reinvestment of proceeds from sale in Local Services cannot be guaranteed

S E C T I O N 7 COSTS (IF APPLICABLE) For Leases confirm if fit out or upgrade is included in Lease Total Capital Funding required: Amount Source Authorised by:

Purchase €

Fit Out / Upgrade €

Other Costs €

Additional Revenue Funding Required?

Yes No Source of Additional Funding:

WTE Implications * Existing Staff: Proposed Staff (short/med/long term)

*Note: Approval of the Property Transaction conveys no commitment to additional revenue or WTEs

S E C T I O N 8 A P P R O V A L S

Approved by:

Property Manager: (or equivalent) (Please Print Name)

Signature:

--------------------------------------------------------

Date: HSE Area:

Email: Tel:

Estate Manager: (Please Print Name)

Signature:

--------------------------------------------------------

HSE Area: Date:

ISA Manager: (or equivalent) (Please Print Name)

Signature:

--------------------------------------------------------

HSE Area: Date:

RDO / AND: (as appropriate)

Signature:

--------------------------------------------------------

HSE Area: Date:

Office Use: Received by HSE Corporate Date:

48

PLEASE NOTE: It is essential that the State’s interests and HSE’s interests are protected in undertaking any property transactions. No transaction is to be concluded until this protection is ensured. The Property Committee will confine its use of any information submitted to verification that local approval process has been followed in relation to the property transaction and preparation of Property Committee recommendations and reports. Legal documents, in duplicate, for signing and sealing to be submitted following Property Committee approval.

CHECK LIST FOR FILLING IN ATTACHED FORM Sections 1, 2, 7 and 8 must be completed in full, in respect of all property transactions giving the name, address

and description of the property being Disposed of, Purchased or Leased together with associated costs and

contact details.

In addition,

for L E A S E transactions, S E C T I O N 3 must also be completed.

for L I C E N C E transactions, S E C T I O N 4 must also be completed.

for F R E E H O L D A C Q U I S I T I O N transactions, S E C T I O N 5 must also be completed.

for F R E E H O L D D I S P O S A L transactions, S E C T I O N 6 must also be completed.

Section 8 of the form provides for details of the contact person to be contacted should there be any queries in

relation to the transaction. Please provide telephone number and/or email address.

Approvals – The Transaction Application Form must be signed by the relevant Property Manager (or equivalent),

Estate Manager, , Integrates Service Manager ( or equivalent) and RDO / AND (as appropriate).

Please ensure that supporting documents for Section 2 are also attached before sending your completed form to the

HSE Property Committee.

If there is not enough space on the form in relation to your transaction or should you wish to include any other

information, please attach an ADDITIONAL INFORMATION SHEET clearly stating the Address & Description of the property on

the top of the sheet and submit with this form.

[PLEASE NOTE THAT ALL THIS INFORMATION MUST BE SENT TO THE HSE CORPORATE PROPERTY SECTION

5 DAYS IN ADVANCE OF THE PROPERTY MEETING AT WHICH THE TRANSACTION IS TO BE REVIEWED]

49

HSE Policy on Third Party Ad-Hoc utilisation of HSE Facilities

1. Continuous or Repeat Use of HSE Facilities

The use of HSE premises by third parties, whether private or voluntary, on a continuous

or occasional repeat basis is governed by the HSE Property Protocol. In all such

instances the HSE requires the occupancy to be formalised by way of a lease or an

occupancy licence agreement, depending on the nature of the occupancy, the duration,

the extent of accommodation involved, etc. Such leases and licences set out terms

governing the use of the facilities by the third parties including the payment, repair,

reinstatement and insurance obligations. These leases and licences require the approval

of the Property Review Group and National Director of Commercial & Support Services

(up to €2.0m) or the Property Committee and Board (€2.0m and above or if a

transaction is below current market value).

This policy does not deal with use of HSE facilities by consultants and GPs in the

provision of healthcare services as separate agreements govern arrangements with

these users.

Section 2 of this policy document sets out the HSE position on ad-hoc / once-off use of

HSE facilities by third parties for gain.

2. Ad-hoc use by Third Parties

A) Use by Voluntary Entities (Health and Social Gain related)

Where capacity exists, facilities may continue to be made available to voluntary

agencies (whether HSE funded or not) for the once off or ad-hoc delivery of services

that compliment the HSE’s health and social care agenda. The existing requirements for demonstration of adequate EL and PL insurance and of local management approval still

apply.

Frequent or continuous use of a HSE facility by such a voluntary entity requires the

execution of a lease or licence as described in Section 1 above.

B) Use by Voluntary Entities (generating income)

Where voluntary agencies request the ad-hoc use of a HSE facility (meeting room,

training room, reception area, etc) for fund raising purposes such requests will be

considered in the context of space availability, appropriateness and impact on the

operation of the existing HSE service and will be subject to the approval of local

management. Where it is felt appropriate a charge may be made for the use of the

space and the utility costs involved at the discretion of the local management. In

addition the existing requirements for demonstration of adequate EL and PL insurance

will apply.

Frequent or continuous use of a HSE facility by such a voluntary entity requires the

execution of a lease or licence as described in Section 1 above.

C) Use by Private Entities (at request of HSE)

Where the HSE has a requirement for a service to be delivered on a once-off basis

(based on a defined and agreed service need) by a commercial third party, this service

will continue to be arranged through the existing HSE Procurement rules and HSE

National Financial Regulations (quotation, tender or framework) setting out the terms

for the delivery of the service. The facilities available, the delivery timeframe and the

methodology for use in the provision of the service by the successful third party will be set out in the competitive process documents. This will ensure that all interested parties

are assured of equal access to HSE accommodation and or equipment (where

50

appropriate) and that relevant information is shared with all interested parties in a

transparent manner from the outset.

Where such a service is not ad-hoc and the engagement of a commercial third party to

deliver services is on an ongoing basis (e.g. newsagent, coffee shop, etc) the HSE

Procurement rules and HSE National Financial Regulations (quotation, tender or

framework) setting out the terms for the delivery of the service apply and the use of

HSE facilities is governed by the terms of a lease or licence as referred to in Section 1

above.

D) Use by Private Entities (generating income)

The use of HSE facilities by commercial third parties (private entities - companies,

groups, individuals, etc) for their own income generation will not be permitted.

In the event of uncertainty about a request to use HSE facilities please contact the

relevant local Procurement or Estates office for guidance.

51

Sample Licence Agreement (for Illustrative Purposes)

This Licence Agreement made the day of 2012

BETWEEN;

1. HEALTH SERVICE EXECUTIVE having its offices at Oak House Limetree Avenue,

Millennium Park, Naas, County Kildare (hereinafter called “the Licensor” which expression

shall where the context so admits or requires includes its successors in title, personal

representatives and assigns) of the one part and;

2. [ ] of [ ] (hereinafter called

“the Licensee”) of the other part

WITNESSESTH as follows:

1 DEFINITIONS AND INTERPRETATION

In this Licence Agreement the following expressions shall have the following meanings: -

“the Commencement

Date” means the day of 2012 .

“the HSE Premises” means (insert description of relevant HSE Premises) , in the County of .

“the Licence Fee” means €[ ] per annum together with any VAT payable thereon at the

applicable rate, which shall be payable monthly in advance on the first day of

each month.

“the Licence Period” means the period of 1 year from the Commencement Date or until the date on

which the Licensee’s rights are determined in accordance with the terms of this

Agreement, whichever is the earlier.

“the Licensed Hours” means (insert the days and hours during which the Licensee can occupy

the Licensed Area) each day of the Licence Period or such further hours as the

Licensor and Licensee may from time to time agree.

“the Outgoings" means any charges arising in connection with the Licensee’s use and occupation

of the Licensed Area to include all charges in respect of the supply of electricity

to the Licensed Area and in connection with any telephone line to be installed in

the Licensed Area together with the charges in respect of insurance specified at

Clause 3.8 and 3.9 of this Licence Agreement.

52

“the Permitted Use” means use as (insert description of permitted services to be provided to

HSE/permitted activities to be carried out within licensed area )and for no other

purpose save with the express and written permission of the Licensor.

“the Licensed Area” means the area located within the HSE Premises comprising an area for a (insert

general description of area e.g. meeting room, etc) together with the fixtures and

fitting listed in the Appendix hereto and being the area outlined in red on the

map annexed hereto. (Attach a map which identifies the Licensed Area)

“the Agreed Services” means the services provided for in any Service Level Agreement between the

Licensor and the Licensee or in the absence of any such Service Level Agreement the (insert brief

description of the services to be provided to the HSE arising from use by Licensee of the Licensed area)

2. THE LICENCE

THE PARTIES HEREBY AGREE as follows;

2.1. In consideration of the payment of the Licence Fee to the Licensor and the undertakings

hereinafter contained on the part of the Licensee to be observed and performed, the Licensor

hereby grants unto the Licensee the non-exclusive right in common with the Licensor and

whomsoever the Licensor shall nominate during the Licence Period unless earlier determined by

the Licensor or Licensee in accordance with the provisions of this Agreement and subject

always to the provisions of Clause 2.2 hereof, to use the Licensed Area for the Permitted Use

and to have a right of access to and egress from the Licensed Area, over the entrance halls,

corridors and stairways of the HSE Premises (subject to compliance by the Licensee with

regulations from time to time made by the Licensor to secure the safe and orderly use of the

HSE Premises by all of the occupants thereof and visitors thereto);

2.2. The Licensor shall have the full right and entitlement if it deems it necessary or desirable in its

absolute discretion to designate any other part of the HSE Premises as a new or alternative

location for the Licensed Area and in such event, the Licensed Area shall be such unit as is

situate at such other location. The Licensee agrees that (s)he shall be subject to the directions of

the Licensor in this regard and that (s)he shall, as soon as is practicable following receipt of

notice from the Licensor and in any event not later than fourteen days after receipt of the said

notice, do all such things as may be necessary to facilitate the relocation of the Licensed Area

within the HSE Premises.

2.3. The Licensee shall be permitted to fit out the Licensed Area for use as the Permitted Use

subject to any such fittings being first approved in writing by the Licensor. The Licensee hereby

indemnifies and agrees to keep indemnified, the Licensor, from and against all costs, claims,

expenses, actions, damage, injury or demands incurred, sustained or borne by the Licensor

arising directly or indirectly out of the licence hereby granted or arising from the use by the

Licensee, his/her contractors or agents of the Licensed Area, the fitting out of the Licensed Area

or the carrying out of any works on or in relation to the Licensed Area.

2.4. The Licensee’s rights pursuant to this Agreement shall be determined forthwith, by written

notice from the Licensor to the Licensee, in the event of the Licensee ceasing for whatever

53

reason and for whatever period to utilise the Licensed Area for the Permitted User and/or to

provide any of the Agreed Services in the HSE Premises.

3. LICENSEE’S UNDERTAKINGS

The Licensee agrees and undertakes with the Licensor as follows:-

3.1 to pay to the Licensor the Licence Fee. If the Licensee shall fail to pay the Licence Fee or any

other sum payable under this Licence with seven days of the date on which the payment of

same becomes due, then such unpaid Licence Fee or sum shall bear interest from the date

upon which the same becomes due to the date of actual payment at a rate which shall equal the

monthly rate of interest for the time being chargeable under Section 1080 of the Taxes

Consolidation Act 1997 (or such other monthly rate of interest which as may from time to

time be chargeable upon arrears of tax) or if the Licensor shall so elect, at the rate of 14% per

annum.

3.2 Not to use or occupy the Licensed Area or permit same to be used or occupied otherwise than

for the Permitted Use or for any purpose or in any manner inconsistent with such user or

occupation.

3.3 the Licensee shall observe and cause its staff to observe the regulations form time to time

made by the Licensor in relation to the maintenance and repair of the Licensed Area at all

times during the Licence Period notified to the Licensee and shall keep the Licensed Area in a

neat and tidy condition and free from rubbish and shall remove all rubbish to the appropriate

receptacles.

3.4 the Licensee shall be responsible for the cleaning of the Licensed Area in accordance with the

standards laid down by the Licensor/the HSE Premises management and the Licensee shall

observe and cause their staff to observe the regulations from time to time made by the

Licensor in this regard as notified to the Licensee.

3.5 the Licensee shall on the termination of the Licensee’s right to occupy the Licensed Area

provided for by this Agreement, yield up the Licensed Area in such good and substantial

repair and condition as shall be in accordance with the undertakings on the part of the

Licensee herein contained and in any licence or consent granted by the Licensor pursuant to

the provisions of this Licence and in case any of the Licensor’s fixtures and fittings shall be

missing, broken, damaged or destroyed to forthwith replace them with others of a similar kind

and of equal value and to remove from the Licensed Area any moulding, sign, writing or

painting of the name or business of the Licensee and if so required by the Licensor, but not

otherwise, to remove and make good to the original prevailing condition, all alterations or

additions made to the Licensed Area by the Licensee including the making good of any

damage caused to the Licensed Area by the removal of the Licensee’s fixture, fittings,

furniture and effects.

3.6 the Licensee shall insure all of its equipment and fittings located in the Licensed Area with a

reputable insurance company and shall, on request by the Licensor, furnish satisfactory

54

evidence of such insurance, and the Licensee shall also insure all other property of the

Licensee from time to time in the Licensed Area.

3.7 the Licensee shall effect and keep in force during the Licence Period such public liability,

employer’s liability and other policies of insurance (to the extent that such insurance cover is

available) as the Licensor shall direct and as may be necessary to cover the Licensee against

any claim arising either directly or indirectly out of the licence hereby granted and to extend

such policies of insurance so that the Licensor is indemnified by the insurers in the same

manner as the Licensee AND whenever required to do so by the Licensor, to produce to the

Licensor the said policy or policies together with satisfactory evidence that the same is/are

valid and subsisting and that all premiums due thereon have been paid.

3.8 the Licensee shall refrain from doing any act which would render any insurance policy on the

HSE Premises void or voidable or which would increase the insurance premium.

3.9 the Licensee shall not sell or distribute medicinal products of any kind, cigarettes, tobacco,

cigars, alcoholic beverages and chewing gum in the Licensed Area.

3.10 the Licensee shall be solely responsible for the discharge of all the Outgoings.

3.11 that the Licensee shall on the execution hereof furnish to the Licensor a valid up to date C2

Tax Clearance Certificate in respect of its tax liabilities under the provisions of the Taxes

Consolidation Act 1997.

3.12 the Licensee shall be responsible for all costs associated with car parking facilities for the

Licensee and any staff of the Licensee.

3.13 The Licensee must not use the Licensed Area or the HSE Premises in such a way as to cause

any nuisance, damage, disturbance, annoyance, inconvenience or interference to the HSE

Premises or to the owners, employees, patients or visitors of the HSE Premises.

3.14 The Licensee must not obstruct any part of the HSE Premises, or make it dirty or untidy, or

leave any rubbish on it.

3.15 The Licensee must indemnify the Licensor, and keep the Licensor indemnified against all

losses, claims, demands, actions, proceedings, damages, costs or expenses or other liability

arising from any negligence, breach of duty including breach of statutory duty of the Licensee,

or the exercise or purported exercise of any of the rights given in Clause 2 of this Licence

Agreement.

3.16 the Licensee shall not bring into the HSE Premises or keep in or on the Licensed Area any

article or thing which is or might become dangerous, offensive, unduly combustible or

inflammable radio-active or explosive or which might unduly increase the risk of fire or

explosion;

3.17 the Licensee shall not keep or operate in the Licensed Area any machinery which shall be

55

unduly noisy or cause vibration or which is likely to annoy or disturb the owners, employees,

patients or visitors of the HSE Premises.

3.18 the Licensee shall not overload the floors of the Licensed Area or suspend any excessive

weight from the roofs, ceilings, walls, stanchions or structure of the Licensed Area and shall

observe the weight limits and capacity prescribed for all lifts in the HSE Premises.

3.19 The Licensee shall not make any alterations or additions to the Licensor’s fixtures in the

Licensed Area without obtaining the prior written consent of the Licensor, and shall not make

or permit to be made any alterations or additions whatsoever of a structural nature to the

Licensed Area.

3.20 The Licensee shall not erect or display in or on the exterior of the Licensed Area so as to be

visible from the exterior any advertisement poster, notice or other sign or thing whatsoever

without obtaining the prior written consent of the Licensor.

3.21 the Licensee shall not permit any goods or property of the Licensee to be placed outside the

Licensed Area, without the prior consent of the Licensor.

3.22 To comply with all reasonable regulations made by the Licensor from time to time and

notified to the Licensee in writing for the general management, use and enjoyment and

security of the Licensed Area, and the HSE Premises

4. LICENSOR’S UNDERTAKINGS

The Licensor undertakes and agrees with the Licensee as follows:-

4.1. to provide lighting, heating, hot and cold water and cleaning services to the HSE Premises,

including the Licensed Area, unless prevented from circumstances outside its control.

4.2 to insure the HSE Premises (but not any property of the Licensee) against fire and such other

risks as the HSE Premises may in its discretion decide.

5. MATTERS AGREED BETWEEN THE LICENSOR AND LICENSEE

5.1. Determination

The Licensor shall be entitled to determine this Agreement by written notification:-

(a) immediately in the event of the breach by the Licensee of its undertakings contained in

Clause 3.

(b) on giving not less than twenty eight days notice to the Licensee to expire on the last day

of the month.

(c) immediately upon the sale or other disposal of the HSE Premises by the Licensor.

5.2 Licence personal to Licensee The benefit of this Licence is personal to the Licensee and is not assignable and shall not be

assigned, transferred or licensed to any other person or entity, and the rights given in Clause 2 of

56

this Agreement may only be exercised by the Licensee and its employees and invitees.

5.3 Liability Excluded

The Licensor shall not to be liable for the death of, or injury to the Licensee or its employees

and invitees, or for damage to any property of theirs, or for any losses, claims, demands, actions,

proceedings, damages, costs or expenses or other liability incurred by them in the exercise or

purported exercise of the rights granted by Clause 2 of this Agreement and, for the avoidance of

doubt, any personal effects or belongings of the Licensee or its employees and invitees are at all

times the risk of the Licensee and its invitees and employees.

5.4 Licence Only

This Licence is not intended nor shall it operate or be deemed to operate either at law or in

equity as a demise of any property the subject of this Licence nor shall the Licensee have or be

entitled to any estate right or interest in any property the subject of this Licence nor shall the

relationship of landlord and tenant exist or arise or be deemed to exist or arise between the

parties hereto and that the licence is dependent upon the Licensee continuing to provide the

agreed services in the HSE Premises. This Licence is not intended to confer and shall not confer

any right to exclusive possession of the Licensed Area or any other part of the HSE Premises on

the Licensee and nothing shall be done to hinder the occupation of the Licensor, its nominees or

any third party of the Licensed Area.

5.5 Notices

Any demand or notice required to be made, given to, or served on either party pursuant to the

provisions of this Agreement shall be duly and validly made, given or served if addressed to the

Licensor or the Licensee respectively (and, if there shall in either case be more than one of them,

then to any one of them) and delivered personally, or sent by pre-paid registered or recorded

delivery mail, or sent by telex or telegraphic facsimile transmission addressed (in the case of a

company) to its registered office or (whether a company or individual) to its last known address

or (in the case of a notice to the Licensee) to the Licensed Area.

5.6. Entire Agreement

This Agreement forms the entire of the Agreement between the Licensor and the Licensee to the

exclusion of all or any other correspondence and representations.

5.7 Laws/Jurisdiction

This Agreement shall be governed by and construed in accordance with the Laws of the

Republic of Ireland and the Licensee hereby exclusively submits to the Jurisdiction of the Courts

of the Republic of Ireland.

5.8. Arbitration

Any dispute or difference which shall arise touching the provisions of this Agreement or the

operation or construction thereof or the rights and liabilities of the Licensor and the Licensee

hereunder shall be referred to the arbitration of a single arbitrator to be appointed by agreement

between the Licensor and the Licensee or in default of agreement to be appointed on the

application of either party by the President for the time being of the Incorporated Law Society of

Ireland such appointed arbitrator being either a Solicitor or Quantity Surveyor of at least

57

seven years standing and experienced in property development and the Arbitration Acts of 1954

to 1998 shall apply accordingly PROVIDED HOWEVER that if the Arbitrator shall relinquish

his appointment or die, or if it shall become apparent that for any reason he shall be unable or

shall become unfit or unsuited (whether because of bias or otherwise) to complete his duties, or

if he shall be removed from office by Court Order, a substitute may be appointed in his place

and in relation to any such appointment the procedures herein before set forth shall be deemed to

apply as though the substitution were an appointment de novo which said procedures may be

repeated as many times as may be necessary. Any determination by the arbitrator shall be

binding on the parties and any arbitrator so appointed shall be required to give his determination

on any matter referred to him within seven days of such referral.

6. IT IS HEREBY AGREED AND ACKNOWLEDGED BY THE LICENSEE as follows:-

6.1. that the Licensor is not responsible for nor does the Licensor have any liability to the Licensee

or any other party for the security and safety of the Licensee’s contents in the Licensed Area and

the Licensor shall bear no responsibility for any items lost or stolen for the Licensed Area.

6.2. The Licensor gives no warranty with regard to revenue or income which may be derived from

the grant of this Licence and the Licensor shall have no liability to the Licensee for, nor shall the

Licensee be relieved from any obligations pursuant to this Licence arising from any reduction or

variation in revenue or income arising any decisions implemented by the Licensor or otherwise.

6.3 In the performance of all services hereunder:

6.3.1. The Licensee shall be and shall be deemed to be an independent contractor and self-

employed person who shall not be entitled to any benefits applicable to employees of the

HSE Premises and/or the Licensor.

6.3.2. The Licensee shall comply with all applicable governmental (both Irish and foreign)

laws and regulations;

6.3.3. The Licensee shall have sole responsibility for the payment of all applicable

governmental taxes including State and local income taxes, social insurance,

employment levies and other similar taxes;

6.3.4 The Licensee shall not and shall not be at liberty to enter into any contractual

agreements on behalf of the Licensor and/or the HSE Premises.

58

APPENDIX

FIXTURES & FITTINGS INCLUDED IN THE LICENSED AREA

59

SIGNED by [ ]

on behalf of the Licensor:

SIGNED by [ ]

on behalf of the Licensee:

60

Dated the day of 2012

HEALTH SERVICE EXECUTIVE

One Part

And

[ ]

Other Part

-------------------------------------------

LICENCE AGREEMENT

-------------------------------------------

61

Protocol Schedule 8 Summary of Approval Levels for Property Transactions in the HSE

Property Transaction Recommended Via

Lowest Approval Level

1 Sale of Property (€2m or greater) Prop Cttee

2 Purchase of Property (€2m or greater) Prop Cttee

3 Acquisition or Disposal at greater than, or less than, market value. Prop Cttee or PRG

4 Transfers of property to/from Local Authorities (€2m or greater) Prop Cttee

5 Approval of Compulsory Purchase Orders affecting HSE property (€2m or greater)

Prop Cttee

6 Grant of Lease by HSE (€2m or greater) incl sub leases Prop Cttee

7 Grant of Lease at greater than, or less than, market value. Prop Cttee or PRG

8 Renewal of Granted Leases by HSE in favour of 3rd parties (€2m or greater)

Prop Cttee

9 Taking of a Lease by HSE (€2m or greater) Prop Cttee

10 Taking of a Lease by HSE at greater than, or less than, market value. Prop Cttee or PRG

11 Renewal of Taken Leases by HSE from 3rd parties (€2m or greater) Prop Cttee

12 Renewal of Taken Leases by HSE from 3rd parties at greater than, or less than, market value

Prop Cttee or PRG

13 Deeds of Discharge required from HSE foregoing its entitlements (€2m or greater)

Prop Cttee

14 Transfer of title to a HSE property on foot of an adverse possession claim (€2m or greater)

Prop Cttee

Board

15 Sale of Property (Less than €2m) - Delegated from Board PRG

16 Purchase of Property (Less than €2m) - Delegated from Board PRG

17 Transfers of property to/from Local Authorities (up to €2m) PRG

18 Approval of Compulsory Purchase Orders affecting HSE property (up to €2m)

PRG

19 Grant of Lease by HSE (up to €2m) incl sub leases PRG

20 Renewal of Leases by HSE in favour of 3rd parties (up to €2m) PRG

21 Taking of a Lease by HSE (up to €2m) PRG

22 Renewal of Taken Leases by HSE from 3rd parties (up to €2m) PRG

23 Deeds of Discharge required from HSE involving payment at or above €5.0m

PRG

24 Deeds of Discharge required from HSE foregoing its entitlements (up to €2m)

PRG

25 Approval of Priority Agreement at or above €5.0m PRG

26 Transfer of title to a HSE property on foot of an adverse possession claim (up to €2m)

PRG

27 Emergency approval (unforseen emergency) up to €2m (with RDO or other National Director)

Nat Estates Office

Head of Estates

28 Granting of Easements over HSE property PRG

29 Acquisition of Easements over property PRG

30 Extinguishment of Easement enjoyed by the HSE PRG

31 Grant of Licence by HSE PRG

32 Amendments to Existing Leases in favour of third parties PRG

33 Assignment of Leases granted by HSE to Third Parties PRG

34 Surrender of Leases to HSE by third parties PRG

35 Deeds of Discharge required from HSE involving payment up to €5.0m

PRG

Assistant National Director - Estates Corporate

62

36 Deeds of Discharge required from HSE where lien period elapsed, no payment

PRG

37 Approval of Priority Agreement up to €5.0m PRG

38 Removal of a Restrictive Covenant PRG

39 Rectification of title PRG

40 Temporary/ad-hoc occupancy agreements (Licence) PRG

41 Termination of Leases by HSE without penalty Estates Office

42 Termination of Leases by HSE with payment of penalty amount (subject to clarity re funds)

Estates Office

43 Termination of Licences by HSE Estates Office

Assistant National Director - Estates