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SCHEDULE 19 – SURPLUS SHARE

1. This Schedule shall be applied to calculate the overall Excess Surplus generated as a result of the management of the following [Facility/Facilities] only; [insert].

2. Subject to paragraph 6, within three (3) months of the end of each Contract Year [following Services Availability] the Contractor shall provide to the Authority a calculation of the Operating Surplus, Excess Surplus and Average Excess Surplus for the previous Contract Year, subject to the calculation being audited by the Contractor’s auditors if an audited calculation cannot be provided within the required timescale. The calculation shall be in the form of a statement and certificate signed by the Contractor’s auditors or another registered auditor (the "Operating Surplus Statement") confirming the figures for Income and Expenditure and presented in the same format as in the Leisure Operator's Base Trading Account and setting out details of the Operating Surplus, Excess Surplus and Average Excess Surplus for that previous Contract Year.

3. The Operating Surplus for each Contract Year, as set out in each Operating Surplus Statement, shall be calculated in accordance with the formula:

OS = A – B, where

OS means the Operating Surplus (profit) for the relevant Contract Year.

A means the Income received by and/or due to the Contractor in relation to the Services during the relevant Contract Year.

B means all the Expenditure actually paid (or incurred but not paid) by the Contractor during the relevant Contract Year, but excluding Contractor Profit and Head Office Costs.

4. Where the Operating Surplus Statement for the Contract Year shows a positive Operating Surplus, the Excess Surplus (ES) shall be calculated in accordance with the formula:

ES = OS – the Contractor’s Projected Surplus

5. The Average Excess Surplus (AES)[1] attributable to a Contract Year shall be calculated by the Contractor in accordance with the provisions of this paragraph 5 on the dates specified at paragraph 6 of this Schedule. The AES shall be the total ES for the preceding three (3) Contract Years divided by the number of Contract Years and shall be calculated using the following formula:

AES = (ES1 + ES2 + ES3), where

3

ES1 means the ES for the Contract Year ending immediately before the Contract Year during which the calculation is taking place

ES2 means the ES for the Contract Year immediately preceding ES1

ES3 means the ES for the Contract Year immediately preceding ES2

6. The first Average Excess Surplus calculation shall be undertaken by the Contractor at the same time as the Excess Surplus calculation following the expiry of the third (3rd) Contract Year following [the Commencement Date][Services Availability][2]. Subsequent Average Excess Surplus calculations shall be undertaken annually by the Contractor at the same time as the Excess Surplus Calculation for the relevant Contract Year.

7. Where the Operating Surplus Statement shows a positive Average Excess Surplus, the Average Excess Surplus shall be divided between the parties according to the following table.[3]

| | |

|Contractor's share of the Average Excess Surplus |Authority's share of the Average Excess Surplus |

| | |

|[X%] |[X%] |

8. Any dispute between the parties regarding the Operating Surplus Statement shall be dealt with in accordance with the Dispute Resolution Procedure.

9. Following agreement or as determined in accordance with paragraph 8, the Authority’s share of any Average Excess Surplus shall be used at the discretion of the Authority.

10. The Contractor shall pay the Authority’s share of the Average Excess Surplus to the Authority within thirty (30) Business Days of agreement or determination.

11. For the purpose of this Schedule the following terms shall have the following meanings:

"Actual Income"

means the annual operating income of the Contractor in relation to the [Facility/ Facilities] (without double counting and excluding any management fee payable to the Contractor), generated through the provision of the Services in relation to the [Facility/ Facilities];

"Average Excess Surplus" or "AES"

means the average excess profit to be shared between the Contractor and the Authority, calculated in accordance with paragraphs 5, 6 and 7;

"Base Profit"

means in relation to the [Facility/ Facilities] an amount (Indexed) which is [X%] of the Base Modelled Income shown in row [X] of the ‘summary’ worksheet of the LOBTA (which at the date of this Agreement for the first Contract Year [following Services Availability] is [£X,000][4]);

"Base Modelled Income"

means the annual operating income (Indexed) that is projected to be earned in relation to the [Facility/ Facilities] by the Contractor as shown in row [X] of the ‘summary’ worksheet of the LOBTA (which at the date of this Agreement for the first Contract Year [following Services Availability] is [£X,000])[5];

"Base Head Office Costs"

means in relation to the [Facility/ Facilities] an amount (Indexed) which is a percentage of the Base Modelled Income profiled on an annual basis for which the annual percentage profile is shown in row [X] of the ‘summary’ worksheet of the LOBTA. The Base Head Office Cost percentage figure is shown in row [X] of the ‘summary’ worksheet of the LOBTA (which at the date of this Agreement is [£X,000] for the first Contract Year [following Services Availability])[6];

"Contractor Profit"

means an amount which is a fixed amount of the income received by the Contractor in respect of the Services, calculated as [X%][7] of the Actual Income;

"Contractor’s Projected Surplus"

means the surplus projected in the Leisure Operator’s Base Trading Account, calculated by adding "Base Profit" to "Base Head Office Costs";

"Excess Surplus" or "ES"

means the excess profit for the year, calculated as per paragraph 4;

"Expenditure"

means the amount of direct costs and expenditure actually paid (or incurred but not paid) by the Contractor during the relevant Contract Year in respect of the Services but excluding:

(a) any sums paid in respect of a previous Contract Year

(b) any Performance Deductions levied through the terms of Schedule 6 (Payment and Performance Monitoring System);

(c) any Contractor Profit; and

(d) any Head Office Costs;

"Head Office Costs"

means an amount which is a fixed amount of the income received by the Contractor in respect of the Services, calculated as a percentage of the Actual Income profiled on an annual basis for which the annual percentage profile is shown in row [X][8] of the ‘summary’ worksheet of the LOBTA;

"Income"

means any income (for the avoidance of doubt including the Annual Payment actually received by the Contractor in respect of the Services from the Authority in respect of the relevant Contract Year) but excluding any sums received in respect of a previous Contract Year;

"Operating Surplus" or "OS"

has the meaning ascribed to it in paragraph 3.

"Operating Surplus Statement"

has the meaning ascribed to is in paragraph 2.

Worked Example (excluding any inflation impacts)

The following worked example assumes an Annual Payment of £1,000,000 when taking into account total modelled income (£2,000,000) less total modelled expenditure (£3,000,000 (including Base Profit and Base Head Office Costs of £150,000)).

Income (A) = £3,000,000 (all income including the Annual Payment)

Expenditure (B) = £2,850,000 (all expenditure excluding Base Profit of £75,000 and Base Head Office Costs of £75,000)

In the base model, the Operating Surplus is £150,000 which is equal to the Contractor’s Projected Surplus (Base Profit plus Base Head Office Costs) i.e. no Excess Surplus.

OS = A – B = £3,000,000 - £2,850,000 = £150,000

ES = £150,000 - £150,000 = £0

If at the end of Year 1:

Income (A) = £3,300,000 (all income including the Annual Payment)

Expenditure (B) = £2,800,000 (all expenditure excluding Contractor’s Profit and Head Office Costs)

OS = A – B = £3,300,000 – £2,800,000 = £500,000

ES = OS (£500,000) – the Contractor’s Projected Surplus (£150,000) = £350,000

If at the end of Year 2:

Income (A) = £3,000,000 (all income including the Annual Payment)

Expenditure (B) = £2,800,000 (all expenditure excluding Contractor’s Profit and Head Office Costs)

OS = A – B = £3,000,000 – £2,800,000 = £200,000

ES = OS (£200,000) – the Contractor’s Projected Surplus (£150,000) = £50,000

If at the end of Year 3:

Income (A) = £3,100,000 (all income including the Annual Payment)

Expenditure (B) = £2,870,000 (all expenditure excluding Contractor’s Profit and Head Office Costs)

OS = A – B = £3,100,000 – £2,870,000 = £230,000

ES = OS (£230,000) – the Contractor’s Projected Surplus (£150,000) = £80,000

The AES for this period is = (ES1 +ES2 + ES3) = (£350,000 + £50,000 + £80,000) = £160,000

3 3

shared between the Contractor and Authority on a [50:50] basis

Contractor – [£80,000]

Authority – [£80,000]

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[1] This template determines an average excess surplus based on a three year rolling look back period. The Authority may prefer to amend the look back period to allow for a longer lead in to the calculation of any average excess surplus in order to take into account any proposed capital developments and associated phasing. Alternatively a different approach could be adopted based on an annual review and share of any excess surplus. Although this has been agreed on a number of contracts it is considered less attractive by contractors who believe that an average position over a period of time provides a more accurate representation of any excess surplus, allows for annual fluctuations and does not dis-incentivise against the implementation of any initiatives that may take a number of years to stabilise.

[2] The "Commencement Date" is the appropriate term where there are existing facilities. "Services Availability" is the appropriate term where new Facilities are being built pursuant to this Agreement

[3] Percentage share to be determined by the Contractor as a bid back item unless a restricted procurement process is being followed in which case the percentage share is to be determined by the Authority, as appropriate. In such circumstances it is recommended that a [50/50 share] is applied. In order to encourage a proactive and positive partnership the Authority may also wish to consider the potential inclusion of additional provisions whereby the Contractor receives a greater percentage share of the Excess Surplus linked to the achievement of specific over performance standards.

[4] Figures and row references to be inserted by the Contractor at financial close based on the agreed LOBTA

[5] Figures and row references to be inserted by the Contractor at financial close based on the agreed LOBTA

[6] Figures and row references to be inserted by the Contractor at financial close based on the agreed LOBTA

[7] Percentage to be inserted by the Contractor at financial close based on the agreed LOBTA

[8] Row reference to be inserted by the Contractor at financial close based on the agreed LOBTA

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Please read the note below before using this template documentation

This template documentation has been produced by Sport England, in consultation with local authorities, leisure operators and leisure, technical and legal advisors in the market to provide assistance to local authorities in the procurement of sports and leisure projects.

The template documentation has been published in good faith by Sport England with the help of its advisors, FMG Consulting and Nabarro LLP, and neither Sport England nor its advisors shall incur any liability for any action or omission arising out of any reliance being placed on the template documentation by any local authority or organisation or other person. Any local authority or organisation or other person in receipt of this template documentation should take their own legal, financial and other relevant professional advice when considering what action (if any) to take in respect of any initiative, proposal, or other involvement with any contractual partnership, or before placing any reliance on anything contained herein.

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