The Borough Council of Bolton
And
------
Block Subsidy or Block Gross (chargeable or non-chargeable) Contract for Supporting People services From ______2008
Contract Reference Number:
Provider Reference Number:
Name of Service:
Service Reference Number:
Page 1 of 37 CONTENTS
1 Definitions and Interpretation 5
2 Start and Duration of This Agreement 9
3. Entire Agreement 9
4 Priority of Documents 9
5. Assignment and Sub-Contracting 9
6. Agency 10
7. Authorised Officer 10
8. The Contract Manager 11
9. Contract Price and SP Subsidy 12
10. The Support Services Standard 14
11. Support Services Review 15
12. Statutory Duties 15
13. Complaints and Abuse Procedures 16
14. Staff 16
15. Equal Opportunities 17
16. Records and Information 18
17. Retention of Records 19
18. Data Protection Act 19
19. Health and Safety 19
20. Provision of Transport 21
21. Confidentiality 21
22. Freedom of Information Act 21
23. Insurance22 22
24. Your Liabilities and Indemnities23 23
25. Our Liabilities and Indemnities23 23
26. Defaults, Early Review and Suspension 23
27. Termination31 25
28. Force Majeure 27
Page 2 of 37 29. Dispute Resolution30 28
30. Variations to the Agreement 29
31. Waiver 29
32. Information and Retendering 30
33. Conflict of Interest 30
34. Tupe 30
35. Contract (Rights of Third Parties) Act 199931 30
36. Notices 31
37. Recovery of Sums Due 32
38. Law and Jurisdiction 32 32
39. Severability 32 32
40. Remedies Cumulative 32
41. Our Functions as a Local Authority 33 32
42. Provider Warranty 32
43. Conclusion of Contract 33
44. Signatures 34
Appendices
Appendix 1: Tupe 35
Appendix 2: Notifiable Incidents 36
Appendix 3: Caldicott Principles 37
Page 3 of 37 This Agreement is dated
It is between:
1. The Borough Council of Bolton of the Town Hall, Bolton (referred to in this Agreement as ‘we’ or ‘us’) and
2. [name of provider] of
[address] which is
[an industrial and provident society, number]
[a registered company, number]
[charity]
other]
[as well as being a social landlord registered with the Housing Corporation, number] (referred to in this Agreement as ‘you’).
3. The commencement date of this contract is the …………………………2008
Page 4 of 37 Terms and Conditions of the Agreement
1. Definitions and Interpretation
1.1 When they are used in this Agreement, the terms and expressions set out below in the first column have the meanings set out in the second column.
“Abuse” Abuse is the violation of an individual’s human and civil rights by any other person or persons. This occurs in many forms and may consist of a single act or repeated acts. It may also be shown by a failure to act to protect vulnerable people. Abuse may, or may not, result in the person being physically injured or ill.
“Accreditation” Means the process devised by us to evaluate a provider as one that can be contracted with
“Accreditation Criteria” Means the requirements that have to be met in order for the provider to be a suitable organisation to provide a support service.
“Administering Authority” Means us as we are a unitary authority.
“Authorised Officer” Means the person referred to in clause [7] (Authorised Officer);
“Block gross agreement” Means an agreement to pay for support for a block of service. The amount will not necessarily vary as the number of users changes. Service users may be either charged directly or exempted from charges by us.
“Block subsidy agreement” Means an agreement to pay for support on an individual service user basis. Therefore, the amount paid will vary as the number of service users varies. You may be responsible for collecting charges from the service user.
“Caldecott Principles” Means the principles arising from the Caldecott enquiry
“Commissioning Body” Means the body who is financially accountable for the Supporting People programme.
“Commencement Date” The date specified in this contract on page 4.
“Confidential Information” Means information obtained from or relating to either you or us, or our or your business or our or your affairs, servants, agents or employees, or any information regarding the Service Users;
“Contract Manager” Means the person referred to in clause [8] (Contract Manager);
Page 5 of 37 “Contract Price” [block gross Means the annual payment for each of the Support Services, model only] which we will make to you in return for your providing the Support Services, in line with the payment schedule that will be provided. Details of the Contract Price for each Support Service are set out in Schedule [2];
“Contract Price” [Block Subsidy Means the weekly payment for each of the Service Users model only] receiving the Support Services. The amount will vary as the numbers of Service Users vary. You may be responsible for collecting charges from the Service User.
“Day/s” Means Monday to Sunday inclusive;
“Default Notice” Means a notice setting out the nature of the Default committed and, if the Default can be put right, the action required to put it right and the timescale within which it is to be put right. Any such timescale must be reasonable in all the circumstances;
“Default” Means any failure, either on our part or yours to carry out our respective obligations under this Agreement;
“Early Review Notice” Means a notice which we are entitled to serve on you under clause [26] stating that one or more of the Support Services Reviews has been brought forward and the date on which it is, or they are, to commence;
“Eligible Service User” Means a Service User who has either been assessed by us as being eligible for her Support Services charges to be met by payment of the SP Subsidy or who has been ‘passported’ as being eligible as a result of being on Housing Benefit. Details of all Eligible Service Users known at the date of this Agreement will be sent to you on or as soon as possible after the Commencement Date;
“Exempted Information” Means any information or category of information, document, report, contract, or other material containing information relevant to this Agreement that has been designated by the mutual agreement of the parties to this Agreement as potentially falling under the FOIA Exemption
“FOIA” Means the Freedom of Information Act 2000
“FOIA Exemption” Means any applicable exemption to the FOIA including, but not limited to, confidentiality (Section 41 FOIA), trade secrets (Section 43 FOIA) and prejudice to commercial interests (Section 43 FOIA)
“Fairer Charging” Means the Administering Authority’s policy for charging Supporting People service users as defined by the Department for Communities and Local Government (DCLG)
“Financial Year” Means a period of 12 months from 1 April in one year to 31 March
Page 6 of 37 in the next.
“Information Sharing Protocol” Means an agreement between certain Supporting People teams to share information about Service Providers where there are events or concerns, which may be relevant to their contractual relationship.
“Key Performance Indicators” Means the key performance indicators relating to Supporting People set out in guidance issued by the Department for Communities and Local Government (DCLG) from time to time;
“Local Performance Indicators” Means performance indicators developed by the Administering Authority.
“Mediator” Means an individual who is appointed in accordance with clause [29] (Dispute Resolution) to mediate between you and us if we are in dispute;
“Minister for Communities and Means the person who holds the position of the Minister for Local Government” Communities and Local Government at any given time or any person authorised to act on her or his behalf (who may be an employee of the Department for Communities and Local Government) or any person succeeding to his functions as regards the arrangements for Supporting People;
“Persistent Default” Means where you have committed more than two Defaults during any consecutive period of 6 months, whether or not these are the same Defaults or different Defaults and even if you put the Default right each time;
“Premises” Means those properties listed in Schedule [1] at which you are to provide the Support Services;
“Protocol” Means a mutually agreed process for dealing with invoice adjustments and compensations for errors and fraud, as referred to in clause [9.8].
Regulatory Body” Means a body that is established either by statute or in some other way and to whose regulatory powers you are subject. However, this does not include any body of which membership is voluntary;
“Resumption Notice” Means a notice referred to in clause [26.12];
“Serious Default” Means a Default on your part which materially prejudices the health, safety or welfare of a Service User or Service Users;
Page 7 of 37 “Service performance Means nationally defined indicators for use at local level. indicators”
“Service User” Means a person who receives or who may receive the Support Services which you are to provide under this Agreement;
“Significant material breach” Means a breach of the agreement that is fundamental to the safe and/or effective and/or appropriate operation of the agreement in respect of either one or more Support Services.
“SPLS” Means the Supporting People Local System database operated by the Administering Authority.
“Subcontractor” Means another provider you have engaged to carry out some or all of the Supporting People services.
“Support Services” Means the support services listed in Schedule [1], which are set out against the Premises at which they are to be provided and ‘Support Service’ means any one of them;
“Support Services Review Date” Means the date set out against each Support Service in Schedule [3];
“Suspension Notice” Means a notice we serve on you under clause [26.9], which sets out details of the Support Services, which are to be suspended.
“TUPE” Means the Transfer of Undertakings (Protection of Employment) Regulations 1981 (including all the amendments made to these Regulations since 1981 which are still in force) and the Acquired Rights Directive;
“Variation Notice” Means a notice served in accordance with clause [30] (Variation to the Agreement);
“Variation” Means a variation to this Agreement or to the Support Services, made in accordance with clause [30] (Variation to the Agreement);
“we” Means not only the person referred to at the start of this Agreement as ‘we’ but also any person to whom we may assign this Agreement and any person who takes over our statutory functions. Unless the context otherwise requires, ‘us’ shall also be taken to refer to ‘we’;
“Working Days” Means between 9:00am and 5:00pm Monday to Friday inclusive, but does not include any days which are bank holidays or public holidays;
“you” Means not only the person referred to as ‘you’ at the start of this Agreement but also any person to whom you assign your interest in this Agreement (although you will need our permission under clause [5] (Assignment and Sub-
Page 8 of 37 contracting) to do so).
1.2 Unless the context makes it clear that this is not what is intended, any reference in this agreement to:
1.2.1 The feminine includes a reference to the masculine and vice versa;
1.2.2 The singular includes a reference to the plural and vice versa;
1.2.3 A person includes a reference to an individual or a firm, partnership, company, or corporation;
1.2.4 A ‘clause’ or a ‘schedule’ in this Agreement means a reference to a clause or schedule of this Agreement.
1.3 The headings in this Agreement are for ease of reference only and do not affect its interpretation.
1.4 Any reference in this Agreement to any enactment, order, regulation or other similar instrument is to be taken to mean a reference to any such enactment, order, regulation or other similar instrument which is in force for the time being. This includes (for as long as they are in force):
1.4.1 Any amendments or modifications to any such enactment, order, regulation or other similar instrument; and
1.4.2 Any re-enactment of any such enactment, order, regulation or other similar instrument.
2. Start and Duration of This Agreement
2.1 This agreement will take effect from the commencement date
2.2 This agreement will end on ______(3 years) unless both parties agree to extend for a further 2 years, or unless terminated in line with Clause [27] termination)
3. Entire Agreement
3.1 This Agreement sets out all the terms and conditions, which you and we have agreed regarding the provision of the Support Services. This means that it supersedes any representations, documents, negotiations or understandings, whether oral or written, made, carried out or entered into before the date of this Agreement.
3.2 The Agreement may relate to one or more Support Services. Each will have a series of schedules attached to this Agreement. Schedule 2 for each describes whether these are block gross or block subsidy agreements.
Page 9 of 37 4. Priority of Documents
4.1 If there is any inconsistency or conflict between what is set out in any of the clauses of this Agreement and what is set out in any of the schedules, then what is set out in the clauses will take precedence.
5. Assignment and Sub-Contracting
5.1 If you want to:
5.1.1 assign your interest in this Agreement or any part of it to any other person; or
5.1.2 create any interest in this Agreement or any part of it (for example by way of a trust); or
5.1.3 create any security over this Agreement or any part of it (for example, by way of a fixed charge); or
5.1.4 sub-contract the carrying out of your obligations under this Agreement then you must first obtain our written consent, which we shall not unreasonably withhold or delay in giving to you.
5.2 Notwithstanding clause [5.1], our consent will not be required to a floating charge over substantially the whole of your assets, property and undertaking.
5.3 However, even if we have given our consent to your sub-contracting the carrying out of your obligations under this Agreement we can subsequently withdraw it, provided that we act reasonably in doing so and give you reasonable notice. This means that at the end of the notice period you will have to terminate the sub-contract concerned.
5.4 You should note that our giving you our consent to sub-contract will not relieve you of your obligations under this Agreement and that you will be responsible for the acts, defaults and neglect of any sub-contractor or any employee, agent or servant of any such sub-contractor, as if they were your own acts, defaults and neglect. This will be the case even if as a condition of our giving our consent we require the sub-contractor to agree directly with us that it will carry out all your obligations under this Agreement.
6. Agency
6.1 You must not represent to anyone, nor allow any of your employees or agents to represent to anyone, that you are our agents or servants.
6.2 In addition, you must not enter into any contract on our behalf or on behalf of any of the Service Users, or in any way claim that you are authorised to do so. This includes not binding us or any of the Service Users to carrying out, varying, releasing or discharging any obligation, whether or not by way of a formal contract.
6.3 You do not have the power under this Agreement to make, vary, discharge or waive any byelaw or regulation of any kind and you must not represent yourself as having any such power.
Page 10 of 37 7. Authorised Officer
7.1 We must appoint a person to exercise our rights and powers under this Agreement, called the ‘Authorised Officer’. This will not limit in any way either our rights or our obligations.
7.2 Details of the person we have appointed to act as Authorised Officer from the Commencement Date (her telephone number, fax number, e-mail address and postal address) is set out in Schedule [5]. If no such details are set out, then the Authorised Officer will be the person who signs this Agreement on our behalf and we will supply you with her details within 5 Working Days of the date of this Agreement.
7.3 The Authorised Officer will be entitled to appoint another person or persons to exercise some or all of her functions (each a ‘deputy Authorised Officer’) but if she does so, she must give you at least 5 Working Days written notice.
7.4 We will be entitled to change the identity of the Authorised Officer at any time (and the Authorised Officer may change the identity of any deputy Authorised Officer at any time) but if we do (or she does) then we (or she) must give you at least 5 Working Days written notice, unless for reasons beyond our (or her) control, this is not possible. If this is the case, we (or she) will notify you by whatever means appears reasonable to us (or her) although we (or she) must then confirm any such notice in writing within 5 Working Days. If the contact details of the Authorised Officer or Deputy Authorised Officer change we will notify you and supply updated contact details in accordance with clause [36] (Notices)
7.5 Any such notice referred to in clauses [7.3] or [7.4] must contain the same details regarding the replacement Authorised Officer or (replacement) deputy Authorised Officer as are set out in the schedule regarding the original Authorised Officer.
7.6 Until we have notified you of any change in the identity of the Authorised Officer or the Authorised Officer has notified you of any change in the identity of a deputy Authorised Officer, you will be entitled to treat the last person notified to you as the Authorised Officer or the deputy Authorised Officer (as the case may be).
7.7 All notifications of changes under this clause [7] (the Authorised Officer) will be made in accordance with clause [36] (Notices).
8. The Contract Manager
8.1 You must appoint a person to exercise your rights and powers under this Agreement, called the ‘Contract Manager’. This will not limit in any way either your rights or your obligations.
8.2 Details of the person you have appointed to act as Contract Manager from the Commencement Date (her telephone number, fax number, e-mail address and postal address) is set out in Schedule [5].
8.3 The Contract Manager will also be entitled to appoint another other person or persons to exercise some or all of her functions (each a ‘deputy Contract Manager’) but if she does so, she must give us at least 5 Working Days written notice.
Page 11 of 37 8.4 You will be entitled to change the identity of the Contract Manager at any time (and the Contract Manager may change the identity of any deputy Contract Manager at any time) but if you do (or she does) then you (or she) must give us at least 5 Working Days written notice, unless for reasons beyond your (or her) control, this is not possible. If this is the case, you (or she) will notify us by whatever means appears reasonable to you (or her) although you (or she) must then confirm any such notice in writing within 5 Working Days. If the contact details of the Contract Manager or Deputy Contract Manager change you must notify us and supply updated contact details in accordance with clause [36] (Notices)
8.5 Any such notice referred to in clauses [8.3] or [8.4] must contain the same details regarding the replacement Contract Manager or (replacement) deputy Contract Manager as is set out in the Schedule regarding the original Contract Manager.
8.6 Until you have notified us of any change in the identity of the Contract Manager or the Contract Manager has notified us of any change in the identity of a deputy Contract Manager, we will be entitled to treat the last person notified to us as the Contract Manager or the deputy Contract Manager (as the case may be).
8.7 All notifications of changes under this clause [8] (the Contract Manager) should be made in accordance with clause [36] (Notices).
9. Contract Price and SP Subsidy
9.1 In return for you carrying out your obligations under this Agreement we must pay you the Contract Price or SP Subsidy relating to each Eligible Support Service User, as appropriate.
Invoicing and Payments [block gross model only]
9.2 You must submit one invoice for payment of the Contract Price at the start of each financial year. This invoice must acknowledge that payments will be made in four weekly instalments throughout the year (in advance). More frequent invoicing may be arranged with us, if required by you. The invoice must set out details of the Support Services for which payment is claimed and such other supporting information and documentation as we may reasonably require from time to time. If there is more than one Support Service linked to this agreement then each must be separately identified on the invoice.
9.3 The Contract Price does not include VAT. If VAT is payable (including services with a zero rate of VAT) then we must pay this in addition to the Contract Price or, provided that you supply us with a proper VAT invoice.
Invoicing and Payments [block subsidy model only]
9.4 We must pay you the SP Subsidy in respect of each Eligible Service User to whom you are providing the Support Services by way of payments in advance. If VAT is payable (including services with a zero rate of VAT) then we must pay this in addition to the SP Subsidy, provided that you supply us with a proper VAT invoice.
9.5 On or as soon as possible after the Commencement Date we will send you a schedule of Eligible Service Users. If you are providing a service on which VAT is chargeable (including services which attract a zero rate of VAT) you must send us an invoice for
Page 12 of 37 payment of the Supporting People subsidy within seven days after the date this schedule is served on you. The invoice should be based on the schedule of Eligible Service Users and cover the period from the Commencement Date until the end of the current Financial Year and shall be a valid VAT invoice.
9.6 After that, if you are providing a service on which VAT is chargeable (including services which attract a zero rate of VAT) you must send us an invoice within seven days after the start of, and in respect of, [each new Financial Year]. This invoice must be based on the most up to date schedule of Eligible Service users, which we will send you from time to time, as set out in clause [9.7] below (each ‘revised schedule’). The invoice must set out details of the Support Services for which payment is claimed and such other supporting information and documentation as we may reasonably require from time to time and shall be a valid VAT invoice.
9.7 Prior to the payment date we will send you a revised schedule, which will set out an up to date list of Eligible Service Users. Based on each such revised schedule, we will adjust the amounts of SP Subsidy payable to you (each an ‘adjustment’).
9.8 We may also make an adjustment (we may do this by any means including by way of reduction, addition, set off or payment) to compensate for any errors made either on our part or your part, or on the part of a Service User or any other person, and/or to compensate for any fraud on the part of a Service User or any other person We will act reasonably in making such adjustments and will give you an opportunity to tell us if you think we have made an error ourselves before making any adjustment.
9.9 You must notify us in writing, within 10 Working Days of receiving any schedule from us, of any errors in it of which you are aware or of any changes to it which you think should be made, or confirm its accuracy. If notification from you is not received within 10 Working Days (or such longer time as shall be reasonable in the circumstances), then this may delay subsequent payments to you.
9.10 Within 10 Working Days of receiving your notice of any errors or changes (or such longer time as shall be reasonable in the circumstances), unless any such errors or changes are in dispute between us, we shall issue a revised schedule which shall take into account any such errors and/or changes, and we shall make an appropriate adjustment when the next payment is due or at the earliest opportunity.
9.11 If any dispute as to errors or changes cannot be settled within 20 Working Days of your sending us details of any such errors or changes then either one of us may require the disagreement to be dealt with under the provisions of clause [29] (Dispute Resolution) and an appropriate adjustment shall be made once any such dispute is settled or determined.
9.12 We require you to notify us as soon as practicable after you become aware if:
9.12.1 An Eligible Service User ceases to be a tenant or service user of yours, or gives notice to quit or otherwise ceases to be a recipient of Support Services from you; or
9.12.2 You have information regarding an Eligible Service User, which relates to their status or claim to be an Eligible Service User.
Page 13 of 37 9.13 If an adjustment can only be made after the Expiry Date relating to the Support Service concerned or after this Agreement has been terminated (or its application to the Support Service concerned) then you must pay us any over payment and we must pay you any under payment, in each case as soon as possible after the amount of any such adjustment has been agreed or determined.
Annual Increase
9.14 The Contract Price or SP Subsidy for each Support Service may be increased by us on the 1st of April in each Financial Year taking account of both the annual budget allocation and guidance issued for this purpose by the office of the Minister for Communities and Local Government and our overall budget provision available. This means that if you both set and collect charges for service users, then you may not exceed the annual increase we make, if any, for existing or new service users.
9.15 The Contract Price or SP Subsidy will not be varied in any other way unless there are exceptional circumstances and we agree. Whether or not we agree will be at our discretion.
Late Payments
9.16 We will make payments either by BACS transfer to your bank account on the due dates as set out by your Supporting People team, the due date being the date the payment reaches your account or, by cheque sent directly to you on or before the due date as set out by your Supporting People team. Should such transfer fail due either through no fault of ours or your bank account details being changed without due notice to us, such notice being 10 banking days, then the due date will be moved to 10 banking days after we receive your new bank account details. This allows us a reasonable time to set up your details.
9.17 If we are late in making any payment of the Contract Price or SP Subsidy then, except where a transfer fails due to your bank details being changed as specified in Clause [9.15] above, we must pay you interest on the amount of any such late payment (unless the unpaid sum is in dispute between us). The interest will be calculated on a daily basis on the overdue amount, from the date when payment should have been made to the date when payment is actually made. The interest rate, which will apply, will be the base rate of the Bank of England from time to time, plus 2% per annum.
Reconciliation
9.18 Where we make adjustments to the monthly payment (both gross or subsidy contracts) to reconcile the overall contract price, on information that is provided by you, this will not constitute a default under 9.16 if this causes a late payment.
9.19 All notifications of changes under this clause [9] (Contract Price and SP Subsidy) must be made in accordance with clause [36] (Notices).
10. The Support Services Standard
10.1 You must provide the Support Services in accordance with your obligations under this Agreement and with all the skill, care and diligence to be expected of a competent provider of services of a similar kind to the Support Services. This will include having
Page 14 of 37 regard to the rights, independence, choice and inclusion of all Service Users and potential Service Users.
10.2 In providing the Support Services you must also comply with:
10.2.1 Any and all codes of practice, performance ratings and quality standards that are laid down in this Agreement or that are issued to you as part of an agreed Variation Notice; and
10.2.2 All statutory provisions which apply to the Support Services.
10.2.3 The Human Rights act 1998.
10.2.4 The Disability Discrimination Act 1995.
10.2.5 Any specific targets for continuous improvement that may be set by us. If any such specific targets are set and not then met then this may be considered to be a Default and/or taken into account at Support Services Review.
10.3 You may be asked to provide a Statement of Purpose which will cover the nature of Services, facilities, physical and geographical access, and likely charges. It should also describe the types of circumstances and the people for whom the service is designed.
10.4 The Service Provider, and any subcontractors employed by the Service Provider, shall comply as far as possible with the National Equality Standard for local government, which provides a common approach for dealing with equality for race, gender and disability. Contractors must have the mechanisms in place as set out in schedule, which will assist the Administering Authority to comply with the requirements of the National Equality Standards that are being assessed at that particular time.
11. Support Services Review
11.1 We are required to carry out a Support Services Review of each of the Support Services. You are required to co-operate with us in carrying out such Support Services Reviews.
11.1.1 We may carry out any of the Support Services Reviews at any time if;
11.1.2 We are entitled to do so under clause [26], or
11.1.3 We are required to do so under any service review and monitoring programme approved by the Commissioning Body, or
11.1.4 There are any exceptional circumstances.
11.2 Each Support Services Review must be carried out in accordance with any guidelines and directions issued by the Minister for Communities and Local Government under section 93 of the Local Government Act 2000
11.3 If we carry out a Support Service Review under clause [11.2] we will serve on you an immediate early review notice (giving you 28 days notice).
12. Statutory Duties
Page 15 of 37 12.1 We have various statutory duties in relation to this Agreement (for example, under Part 1 of the Local Government Act 1999 (Best Value) to carry out a regular review of the Support Services, and the review referred to in clause [11] (Support Services Review)).
12.2 You must fully co-operate with us in carrying out any such statutory duty and subject to clause [18] (Data Protection Act) you must make available to us such facilities and such assistance as we may reasonably request provided we have given you reasonable notice.
12.3 For example, you must allow our employees or authorised agents’ access to:
12.3.1 Your employees; and
12.3.2 All information, reports, financial accounts, documents, records (whether in human or machine readable form) and data which you hold or have access to in each case who or which are relevant to this Agreement or the Support Services.
12.4 You must also allow us to take copies of the information, reports etc referred to in clause [12.3.2].
12.5 Any information, reports etc made available to us under this clause [12] (Statutory Duties) shall be treated by us as Confidential Information and therefore subject to the provisions of clause [21] (Confidentiality).
13. Complaints and Abuse Procedures
13.1 You `must:
13.1.1 draw up a complaints procedure (if you have not already got one);
13.1.2 operate it from the Commencement Date;
13.1.3 comply with the requirements of any Regulatory Body to which you are subject, including any change in such requirements; and
13.1.4 at our request provide us with a copy.
13.2 You must:
13.2.1 Implement standards of childcare and adult protection practice (as appropriate), policies and associated procedures in accordance with Department of Health guidance. These must be compatible with those adopted by the local Area Child Protection Committee and local Adult Protection policy.
13.2.2 Operate these standards from the Commencement Date.
13.2.3 Participate in any child or adult protection/abuse investigations conducted in respect of a looked after child, or adult receiving service.
13.2.4 Bring any allegation or complaint about abuse to the attention of the relevant authority and to work within the relevant Child or Adult Protection procedures.
Page 16 of 37 13.2.5 At our reasonable request, you must supply us with a copy of your records relating to complaints made and your response, or your actions relating to adult or child protection practice in relation to the Support Services.
14. Staff
14.1 You must employ sufficient numbers of people of sufficient ability, skill, knowledge, training or experience so as to properly provide, and to supervise the proper provision of, the Support Services.
14.2 You must carry out enhanced checks with the Criminal Records Bureau on all managers, owners, directors, trustees, and committee members and similar (if applicable) engaged to directly provide or supervise the provision of the Support Services. If checks reveal information that would make them unsuitable for work with children or vulnerable adults, you must not use them in any way in relation to the provision of the Support Services.
14.3 You must carry out enhanced checks with the Criminal Records Bureau on all staff employed or (if any) volunteers engaged to provide, or supervise the provision of the Support Services, if this is a statutory requirement. If checks reveal information that would make them unsuitable for work with children or vulnerable adults, to not use them in any way in relation to the provision of the Support Services.
14.4 You must have a Protection of Vulnerable Adults and Children Policy. Staff must be made fully aware of this policy and the principles of the policy put into practice in all areas of service delivery.
14.5 You must also employ a system that asks for disclosure of any convictions under the Rehabilitation of Offenders Act 1974 from staff and volunteers to be used in delivering the service, if this is a statutory requirement.
15. Equal Opportunities
15.1 You must:
15.1.1 operate an equal opportunities policy for as long as this Agreement is in force; and
15.1.2 provide us with a copy of any such policy at our request.
15.2 You must use all reasonable endeavours to make sure that your equal opportunities policy complies with all statutory obligations as regards discrimination on the grounds of colour, race, nationality, cultural or ethnic origin, marital status, gender, age, disability, religion or sexual orientation in relation to:
15.2.1 decisions made by you in the recruitment, training or promotion of staff employed or to be employed in the provision of the Support Services;
15.2.2 the provision of the Support Services; and
15.2.3 the carrying out of your obligations under this Agreement.
Page 17 of 37 15.3 You, and any subcontractor employed by you, shall observe as far as possible, the Commission for Racial Equality’s race relations Code of Practices in employment as approved by Parliament and issued in 1984. This gives practical guidance to employers and others on the elimination of racial discrimination and the promotion of equality of opportunity in employment, including the steps that can be taken to encourage members of ethnic minorities who are under-represented in the workforce to apply for jobs or take up training opportunities.
15.4 In the event of any finding of unlawful racial discrimination being made against you, or any subcontractor employed by you, during the contract period by any court or industrial tribunal, or of an adverse finding in any formal investigation by the Commission for Racial Equality over the same period, you shall inform us of this finding and shall take appropriate steps to prevent repetition of the unlawful discrimination.
15.5 You shall, on request, provide us, with details of any steps taken under the Conditions above.
16. Records and Information
16.1 You must compile and maintain such information as we may reasonably require to enable us to submit to the Minister for Communities and Local Government any information or data required by him for the purposes of evaluating the Key Performance Indicators, Service Performance Indicator and Local Performance Indicators. In specifying the information to be compiled and maintained for this purpose we will have regard to any directions or guidance, which the Minister for Communities and Local Government may issue relating to the form and extent of such information. Baseline monitoring information is set out in Schedule [3].
16.2 You must make available to us the information referred to in clause [16.1] at such times as we may reasonably require starting from the Commencement Date.
16.3 In addition, at our reasonable request (but subject to clauses [18] (Data Protection Act) and [21] (Confidentiality)) you must provide us with:
16.3.1 such information which we may reasonably require for the purpose of assessing how you are carrying out your obligations under this agreement and the safety and welfare of the Service Users;
16.3.2 information on, and the names of, the Service Users.
16.3.3 any information (including original contracts, invoices, receipts, remittance advice, statements and books) relating to your claim(s) for payment.
16.4 Notwithstanding clause [16.3], you must allow the Authorised Officer or any person authorised by her, together with appropriate staff, at all reasonable times to inspect or witness the provision of the Support Services.
16.5 In inspecting or witnessing the provision of the Support Services we will have proper regard to the nature of the Support Service being provided, particularly where this involves victims of domestic violence or other sensitive services for vulnerable client groups.
16.6 You must notify us, in accordance with clause [36] (Notices), if:
Page 18 of 37 16.6.1 there is a change in who controls the majority of the shares in, or the voting rights amongst shareholders or members of, your organisation;
16.6.2 you merge with another organisation;
16.6.3 you transfer your engagements to another organisation;
16.6.4 you in any way transfer your business to another organisation;
16.6.5 as a result of any misconduct or mismanagement on your part a Regulatory Body directs an inquiry into, or makes an order of any kind in relation to, your affairs; or
16.6.6 any registration, which you must maintain in order to provide any of the Support Services is withdrawn or cancelled or is, threatened to be withdrawn or cancelled.
16.7 If you give information or signposting in relation to the provision of social welfare law advice in the course of carrying out this Agreement then you are expected to achieve the appropriate level of the Community Legal Services (CLS) Quality Mark.
16.8 You will need to complete a Client Record Form for all new Service Users who begin to use Supporting People services from 1st April 2003 and follow relevant DCLG guidelines.
17. Retention of Records
17.1 You must keep all records pertaining to the provision of your service for a period of 4 years or until 6 months after a service review has been completed whichever is the earlier. Failure to comply with this requirement may be viewed as a significant material breach.
18. Data Protection Act
18.1 Both of us must comply with the requirements of the Data Protection Act 1998 insofar as they apply to the provision of the Support Services and/or otherwise to this Agreement. You shall ensure that you obtain authorisation from the Service User using our consent form to supply to us as a Data Processor any personal data required to be supplied to us under this Agreement and where necessary that authorisation shall include the right to transfer such personal data to the Office of the Minister for Communities and Local Government as required by him.
19. Health And Safety
19.1 You must comply with the requirements of the Health and Safety at Work Act 1974 insofar as they apply to the provision of the Support Services.
19.2 For as long as this Agreement is in force you must have in place a health and safety policy which complies with all statutory requirements.
19.3 In order to ensure compliance with the Health and Safety at Work Act 1974 all providers of Support Services, must, where applicable to the particular Service:
Page 19 of 37 19.3.1. Ensure, so far as is reasonably practicable, there is no risk of injury to your or our employees, Service Users, or the general public; and
19.3.2 Co-operate as far as necessary to enable us to discharge our statutory requirements and in particular not to intentionally or recklessly interfere with or misuse anything provided by us in the interests of health, safety or welfare; and
19.3.3. You shall at all times comply with all relevant Health and Safety Legislation and associated documentation, for example Approved Codes of Practice, British Standards, Reporting of Injuries, Diseases, and Dangerous Occurrences Regulations (RIDDOR 1995) and Control of Substances Hazardous to Health Regulations (COSHH)
19.4 Specifically you must comply with the following:
19.4.1 Ensure that your employees, sub-contractors or agents familiarise themselves with any local health and safety arrangements at the Premises at which they are working, are aware of the procedures to be followed in the event of an emergency, and adhere to any instructions given in respect of this.
19.4.2 Have in place a regular programme for maintenance and/or replacement of your buildings and premises (including fixtures and fittings) and all plant and equipment (including vehicles and safety devices) to ensure safe and efficient working arrangements, in accordance with legislative requirements and the manufacturer’s recommendation.
19.4.3 In the event of equipment being supplied to you by Bolton Primary Care Trust, or us for use by a named individual, you must comply with the “Shared use of Equipment Protocol”.
19.5 You will, where appropriate, ensure that:
19.5.1 all staff have been fully trained in moving and handling.
19.5.2 training is given, prior to equipment being used, in the appropriate use of equipment which has been provided to meet the needs of Service Users; this will include, but is not limited to, cot sided beds, moving and handling and sanitary equipment where relevant advice from the Medical Devices Agency must be complied with.
19.5.3 the requirements of job descriptions/risk assessments/method statements and associated instructions for the safe undertaking of work on our behalf are briefed to employees or your agents and that applicable information, instruction and training is provided, together with any personal protective equipment.
19.6 Risk Assessments
19.6.1 You will ensure that suitable and sufficient risk assessments are undertaken and kept up to date as required by specific legislation, in respect of the services provided, and that any necessary control measures are implemented and maintained and checked. Copies of such assessments must be provided to us upon request.
Page 20 of 37 19.6.2 In addition to risk assessment requirements, where chemicals or other substances are utilised within the scope of the Service Provision, you must ensure they are compatible with those utilised by us.
19.6.3 You must ensure as far as possible that your employees, sub-contractors or agents are suitable and medically fit and that they are not under the influence of drugs/alcohol whilst providing the Support Services.
19.6.4 You must report any accident, incident, near miss or instance of occupational disease/ill health that occurs to employees or agents of yours whilst working for us, or any similar circumstance involving a Service User, to the Authorised Officer as soon as possible after the occurrence, in accordance with Clause [36] (Notices).
19.7 In cases where serious Health and Safety risks exist or where you repeatedly fail to discharge your Health and Safety obligation, then the following will apply, either:
19.7.1 You will halt part or all of the Service activities until the necessary improvements have been carried out to our satisfaction, or
19.7.2 We will terminate the agreement in accordance with clause [27].
19.8 You will maintain and make available for inspection appropriate records to demonstrate compliance with all Health and Safety, Food Standards and any other relevant legislation.
20. Provision of Transport
20.1 Where you provide transport for Service Users either with mobility impairment or who would otherwise experience significant difficulty in using public transport the transport shall be appropriate and safe. Safe operating procedures must be in place for assisting Service Users with regard to this.
20.2 You must ensure that any vehicle utilised in the provision of a transport service must comply with the necessary legislation, the manufacturer’s recommendations and the licensing arrangements required in respect of the vehicle and its use. In addition the driver using the vehicle must have the appropriate current licence and insurance in respect of the vehicle being used and its purpose.
21. Confidentiality
21.1 Subject to Clause 22 below each party will keep confidential the contents of this Agreement and all information disclosed by one party (“the Disclosing Party”) to the other party (“the Receiving Party”) in connection with this Agreement except as may be strictly necessary for the performance of the Receiving Party’s obligations under this Agreement or except as may be strictly required by law.
21.2 We shall, in accordance with any information sharing protocol which we are a party to, share information regarding you and this Agreement with other local authorities for the purpose of assisting them with their procurement of care services
Page 21 of 37 22. Freedom of Information Act
22.1 You recognise that we are subject to legal duties which may require the release of information under FOIA or the Environmental Information Regulations 2004 or any other applicable legislation or codes governing access to information (“Access Duties”) and that we may be under an obligation to provide information on request. Such information may include matters arising out of or under this Agreement in any way
22.2 In the event that we receive a request for information under our Access Duties, we shall be entitled to disclose all such information and documentation (in whatever form), as we are obliged to disclose under our Access Duties
22.3 We shall be responsible for determining at our absolute discretion whether the information that we propose to disclose following a request under our Access Duties is Exempted Information
22.4 In respect of any disclosure under our Access Duties, we shall endeavour to advise you of the intention to disclose the information, prior to such disclosure being made, and allow at least ten (10) Working Days for you to make submissions to us in respect of that disclosure
22.5 We shall not be liable for any loss, damage, harm or other detriment however caused arising from the disclosure of any information relating to this Agreement, which we are obliged to disclose under out Access Duties
22.6 You will assist us in complying with our obligations under our Access Duties. In the event that we receive a request for information under our Access Duties and require your assistance in obtaining the information that is subject to such request or otherwise, you will respond to any such request for assistance from us at your own cost and promptly and in any event within 10 days of receiving our request
23. Insurance
23.1 For as long as this Agreement is in force you must take out and maintain as a minimum the insurances set out in clause [23.3]. You must also ensure that any of your sub- contractors who are providing any or all of the Support Services on your behalf take out and maintain equivalent insurances, as a minimum.
23.2 All insurances must be taken out and maintained with a reputable insurance company.
23.3 The insurances referred to in clause [23.1] are as follows:
23.3.1 employers liability insurance in a minimum amount for each and every claim, act or occurrence or series of claims, acts or occurrences which complies with statutory requirements (at the date of this Agreement this is currently £10m);
23.3.2 public liability insurance in a minimum amount of £5m for each and every claim, act or occurrence or series of claims, acts or occurrences; and
Page 22 of 37 23.3.3 if providing advice or information as part of this Agreement, professional indemnity insurance in an amount for each and every claim, act or occurrence or series of claims, acts or occurrences which is sufficient to cover your liabilities under this Agreement.
23.4 You must provide us with a copy of the policy schedule for the insurances referred to in clause [23.3] at our request together with evidence that the insurances are in force. Whilst normally, we shall not ask for such schedules or evidence more than once in each Financial Year, we reserve the right to do so, if we consider it reasonably necessary.
23.5 If we are of the opinion (acting reasonably) that any of the policies of insurance do not provide sufficient cover to comply with clause [23.3] then you must rectify (or if applicable, ensure that the sub-contractor rectifies) the position as soon as possible.
23.6 If you do not (or where applicable if the sub-contractor does not) rectify the position as soon as possible then we shall be entitled to treat such failure as a significant material breach of this Agreement and invoke the Default process at clause [26].
24. Your Liabilities and Indemnities
24.1 You must fully and promptly indemnify us against all direct (but not indirect or consequential) losses, damages, costs, expenses, liabilities, claims or proceedings, whether these arise under statute or common law, (together referred to as ‘our losses’) which we suffer as a result of any negligence, Default or breach of statutory duty on your part in carrying out your obligations under this Agreement or on the part of any person you employ or engage to carry out your obligations under this Agreement.
24.2 You will not be liable to indemnify us as set out in clause [24.1] to the extent that our losses are due to any negligence, Default or breach of statutory duty on our part, or on the part of any of our employees acting in the course of their employment.
24.3 Your liability for any of our losses, which relate to death or personal injury, shall be unlimited.
24.4 Otherwise your liability for our losses shall be limited to the annual value of the Contract Price or twelve times the value of the first monthly payment (block subsidy model only) in respect of each and every claim.
25. Our Liabilities and Indemnities
25.1 We must fully and promptly indemnify you against all direct (but not indirect or consequential) losses, damages, costs, expenses, liabilities, claims or proceedings, whether these arise under statute or common law, (together referred to as ‘your losses’) which you suffer as a result of any negligence, Default or breach of statutory duty on our part in carrying out our obligations under this Agreement or on the part of any person we employ or engage to carry out our obligations under this Agreement.
25.2 We will not be liable to indemnify you as set out in clause [25.1] to the extent that your losses are due to any negligence, Default or breach of statutory duty on your part, or on the part of any of your employees acting in the course of their employment.
Page 23 of 37 25.3 Our liability for any of your losses, which relate to death or personal injury, shall be unlimited.
25.4 Otherwise our liability for your losses shall be limited to the annual value of the Contract Price OR twelve times the value of the first monthly payment (block subsidy model only) in respect of each and every claim.
26. Defaults, Early Review and Suspension
Defaults
26.1 If you commit a Default then we will be entitled to serve on you a Default Notice. This will be without prejudice to any other right or remedy, which may be available to us, either under this Agreement or at law.
26.2 If we serve on you a Default Notice, which relates to a Default which can be put right then on receiving such a Default Notice, you will take the action specified in the Notice, within the timescale set out, at your own cost.
26.3 You will be entitled to apply the provisions of clauses [26.1] and [26.2] to us except that if the Default concerned is a failure to pay you the Contract Price or SP subsidy, as appropriate, on time then we must make you such late payment within 10 Working Days of the Default Notice being served.
26.4 If there is any disagreement between us as to whether a Default has occurred and/or about the action required to be taken and/or the timescale within which the action is to be taken, then either of us can refer the matter for resolution, in accordance with clause [29] (Dispute Resolution).
Early Review
26.5 The Early Review Notice may relate to a Persistent Default or failure to put right a Default within the timescale concerned relates either to the way in which you carry out your obligations generally or the way in which you carry out your obligations in relation to a particular type of Support Service, to all the Support Services or the type of Support Services concerned (as the case may be).
26.6 The Early Review notice may relate to a change in the circumstances of either party.
26.7 Any Early Review Notice must give you at least 28 days notice of the date of the brought forward Support Services Review.
Suspension
26.8 There may be occasions when we consider it inappropriate for you to continue providing the service for a period of time; in this event we may suspend the delivery of one/all of the Support Services. The reasons will be either:
26.8.1 you have committed a Serious Default. In this case the purpose of the period of suspension is to rectify/remedy the cause of the default, or
Page 24 of 37 26.8.2 there are issues or allegations that we may reasonably believe could be viewed as a Serious Default. In this case the purpose of the suspension is to allow time for a period of investigation.
26.9 If we serve a Suspension Notice then:
26.9.1 you will cease providing the Support Service(s) set out in the Suspension Notice from the date specified in the Suspension Notice; and
26.9.2 we will be entitled either to provide some or all of the Support Service(s) or employ another person to do so on our behalf for as long as the Suspension Notice is in force.
26.10 We will ensure that any investigation is carried out as quickly as possible and we will make available to you a copy of the report of the investigation’s findings as soon as possible after it has been made available to us.
26.11 If you have been served with a Suspension Notice then as soon as possible after we have received the report of the investigation we shall consider (acting reasonably) whether or not you are to resume provision of the suspended Support Service(s).
26.12 If we consider that you are to resume provision of some or all of the suspended Support Service(s) then we will serve on you a Resumption Notice which shall set out the Support Service(s) to be resumed and the date upon which they are to be resumed.
26.13 We will be entitled to set out in the Resumption Notice such conditions relating to your resumption of the Support Service(s) as may be reasonable.
26.14 If we consider that you are not to resume provision of some or all of the suspended Support Service(s) then:
26.14.1 we will be entitled to give you notice terminating the application of this Agreement to the Support Service(s) concerned, with immediate effect; or
26.14.2 if we consider, acting reasonably, that the findings of the investigation reflect on your ability to carry out the Support Services generally) we will be entitled to give you notice terminating this Agreement as a whole, with immediate effect.
26.15 During any period of suspension we must continue to pay you the Contract Price or SP subsidy, as appropriate, but if we give you notice of termination, either in accordance with clause [26.14.1] or [26.14.2], then you must repay us all sums we have paid you during the period of suspension which relate to the suspended Support Services concerned. If you do not repay us these sums within [20] Working Days of any notice of termination, then we will be entitled to recover these sums as a debt.
26.16 All notifications under this clause [26] must be made in accordance with clause [36] (Notices).
27. Termination
Page 25 of 37 27.1 You or we may terminate:
27.1.1 this Agreement; or
27.1.2 its application to a particular Support Service by giving the other party not less than six months written notice. If both parties agree, the period of notice can be shortened.
27.2 We may terminate immediately if:
27.2.1 you are an individual and you are declared bankrupt, or a bankruptcy petition is filed against you at court, or you attempt to make or make a composition or arrangement for the benefit of your creditors; or
27.2.2 you are a corporate body and you have a receiver or liquidator appointed over you or (if applicable) you are struck off the Companies Register of companies at Companies House; or
27.2.3 you commit or cause the commission of any criminal offence in providing the Support Services (except for any minor offence or minor traffic offence); or
27.2.4 in relation to any contract with us you, or any person employed by you or acting on your behalf, commit(s) an offence under the Prevention of Corruption Acts 1889-1916 or shall have given any fee or reward the receipt of which is an offence under section 117(2) of the Local Government Act 1972; or
27.2.5 if as a result of any misconduct or mismanagement on your part a Regulatory Body makes an order of any kind in relation to your affairs; or
27.2.6 if any registration which you must maintain in order to provide any of the Support Services is withdrawn or cancelled; or
27.2.7 you make a change in your organisation or your business to which the notification requirements of any of the clauses 16.1 to 16.4 inclusive relates which frustrates the provision of the Support Services or compliance with this agreement; or
We may terminate if:
27.2.8 you commit anything that we judge to be a significant material breach of any of your responsibilities under the contract and, in the case of a breach which is capable of being remedied, fail to remedy it within twenty eight (28) days of receiving a written notice of the breach from us (or such other time as may be stipulated in writing by us). For the avoidance of doubt this would include the failure to co-operate with a Support Services Review; or
27.2.9 you do not meet any of the relevant Accreditation Criteria and having given you a reasonable time span in which to do so you have continued to fail to meet the Accreditation Criteria.
Page 26 of 37 27.2.10 if the DCLG terminates, reduces or otherwise discontinues the relevant Supporting People funding to us then we will be entitled to give you notice terminating this Agreement, with immediate effect PROVIDED THAT if we terminate under this clause 27.2.10 we will give you as much notice as is practicable in the circumstances following the relevant DCLG decision and we will use reasonable endeavours to agree with you a strategy to minimise any adverse effects on the welfare of the Service Users affected
27.3 If you commit a Persistent Default or fail to put right a Default within the timescale set out in the Default Notice concerned then:
27.3.1 If we consider (acting reasonably) that the Persistent Default or the failure to put right a Default within the timescales concerned relates to a particular Support Service and/or the way in which you carry out your obligations generally we will be entitled to terminate the application of this Agreement to the Support Service concerned by giving you not less than 3 months written notice; or
27.3.2 subject to clauses [18] (Data Protection Act) and [21] (Confidentiality) you shall co-operate with us (at our reasonable request) to secure (as necessary) the continuity of the Support Service, its orderly winding up, the administration of any recoupment provision and other exit and succession arrangements as the case may be and you shall do such other things and execute such documents as may be necessary for such purpose.
27.3.3 we shall be entitled:
27.3.3.1 to retain any monies owed to you under this Agreement until you have paid all monies owed to us under this Agreement; or
27.3.3.2 to deduct any such monies owed to us under this Agreement from the monies owed to you under this Agreement in either case without prejudice to the provisions of clause [37] (Recovery of Sums Due).
27.4 If:
27.4.1 on three separate occasions in any period of 12 months you have served on us a Default Notice because we have failed to pay you the Contract Price or SP subsidy, as appropriate on time; or
27.4.2 we have committed a Default which is a substantial breach of any material term of this Agreement then you may terminate this Agreement by giving us not less than three months written notice.
27.5 If you or we terminate this Agreement or its application to a particular Support Service under clauses [27.3] or [27.4] then you will continue to provide the Support Services during the period of notice unless we request otherwise.
27.6 If this Agreement or its application to a particular Support Service is terminated, whether under clause [26] (Defaults) or this clause [27] (Termination), then:
27.6.1 the provisions of clause [30] (Information and Re-tendering) shall apply; and
Page 27 of 37 27.6.2 we must continue to pay you the Contract Price or SP subsidy, as appropriate throughout the notice period (unless we have requested you to stop providing the Support Service(s) during such period).
27.7 All notifications under this clause [27] must be made in accordance with clause [36] (Notices).
28. Force Majeure
28.1.1 If either one of us fails to carry out our respective obligations under this Agreement as a result of force majeure then whichever one of us is affected shall not be liable under this Agreement for such failure.
28.1.2 This is subject to the proviso that whichever one of us is affected shall have given the other notice that such failure is the result of force majeure within 10 Working Days of such failure occurring.
28.2 If an event of force majeure occurs then we shall meet with you to discuss how best you can continue to provide the Support Services until the force majeure event ceases, which may include our providing you with assistance, where possible.
28.3 In this clause ‘force majeure’ means:
28.3.1 acts of war;
28.3.2 acts of God;
28.3.3 decrees of Government;
28.3.4 riots;
28.3.5 civil commotion; and
28.3.6 any event or circumstance, which is both beyond the control of whichever one of us, is affected and which acting prudently, diligently or with reasonable foresight, could not have prevented.
28.4 For the avoidance of doubt ‘force majeure’ shall not include any labour dispute between you and your staff or the failure to provide the Support Services by any of your sub- contractors.
29. Dispute Resolution
29.1 If there is a dispute between you and us concerning the interpretation or operation of this Agreement then either one of us may notify the other that it wishes the dispute to be referred to a meeting of the Authorised Officer and the Contract Manager to resolve, negotiating on the basis of good faith.
29.2 If after 28 Days (or such longer period as both of us may agree) of the date of the notice referred to in clause [29.1] the dispute has not been resolved then either one of us may notify the other that it wishes the dispute to be referred to a meeting of a Chief Officer of
Page 28 of 37 ours, (or a person appointed by her to act on her behalf) and a senior officer of yours, to resolve, negotiating on the basis of good faith.
29.3 If after 28 Days (or such longer period as both of us may agree) of the date of the notice referred to in clause [29.2] the dispute has not been resolved then either one of us may notify the other that it wishes to attempt to settle the dispute by mediation, OR in accordance with the Centre for Effective Dispute Resolution (‘CEDR’) Model Mediation Procedure 2001 (the ‘Model Procedure’) or such later edition as may be in force from time to time.
29.4 If you and we do not agree on the identity of the Mediator then either one of us may request CEDR to appoint one.
29.5 The procedure in the Model Procedure will be amended to take account of:
29.5.1 any relevant provisions in this Agreement; or
29.5.2 any other agreement, which you and we may enter into in relation to the conduct of the mediation ("Mediation Agreement").
29.6 Both of us must:
29.6.1 use our best endeavours to ensure that the mediation starts within 20 Working Days of service of the notice referred to in clause [29.3]; and
29.6.2 pay the Mediator’s fee in equal shares (unless you can show us that this would cause you serious financial difficulty in which case we shall pay the Mediator’s fee).
29.7 Any agreement we reach with you as a result of mediation shall be binding on both of us, as set out in the Model Procedure, but if the dispute has not been settled by mediation within [10] Working Days of the mediation starting then either one of us may commence litigation proceedings (but not before then).
29.8 Neither one of us shall be precluded by clause [29.7] from taking such steps in relation to court proceedings as we or you (as the case may be) deem necessary or desirable to protect our respective positions. This shall include:
29.8.1 issuing or otherwise pursuing proceedings to prevent limitation periods from expiring; and
29.8.2 applying for interim relief.
29.9 The use of the dispute resolution procedures set out in this clause [29] (Dispute Resolution) shall not delay or take precedence over the provisions for termination set out in clauses [26] (Default) and [27] (Termination).
29.10 All notifications under this clause [29] must be made in accordance with clause [36] (Notices).
30. Variations to the Agreement
Page 29 of 37 30.1 A variation to this Agreement (including to the scope and nature of the Support Services) shall only be valid if it has been agreed in writing and signed by both of us.
30.2 If either one of us wishes to vary this Agreement then it shall serve on the other a Variation Notice which shall set out the nature of the variation sought and the reasons for it.
30.3 If either one of us receives a Variation Notice then within 28 Days of receipt it shall notify the other whether or not it agrees to the variation and if not, the reasons.
30.4 All notifications under this clause [30] must be made in accordance with clause [36] (Notices).
31. Waiver
31.1 If either one of us fails to exercise or delays in exercising any right or remedy to which it is entitled under this Agreement or at law then this shall not constitute a waiver of any such right or remedy.
31.2 If either one of us waives a Default on the part of the other then this shall not constitute a waiver of any future Default.
31.3 No waiver shall be effective unless it is:
31.3.1 expressly stated to be a waiver;
31.3.2 in writing; and
31.3.3 signed by the Authorised Officer or Contract Manager as appropriate.
32. Information and Retendering
32.1 Subject to clauses [18] (Data Protection Act) and [21] (Confidentiality), at our reasonable request, you must provide us with such information and data as we may reasonably require enabling us to prepare the necessary documentation to appoint another person to provide the Support Services in your place.
32.2 If you have tendered for a Support Service then you must not tell anyone else the amount of your bid. You must not adjust your bid because of an arrangement with anyone else.
33. Conflict of Interest
33.1 You shall take appropriate steps to ensure that neither you nor any employee, servant, agent, or sub-contractor is placed in a position where there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of you or such persons and the duties owed to us under the provisions of the Contract. You will disclose to us full particulars of any such conflict of interest, which may arise as soon as any such conflict of interest arises. Failure to disclose any such conflicts of interest may be considered to be a significant material breach.
34. Tupe
Page 30 of 37 34.1 Subject to clauses [18] (Data Protection Act) and [21] (Confidentiality) you must provide us with such information as we may reasonably require enabling us to comply with our obligations under TUPE when either this Agreement comes to an end or it ceases to apply to a particular Support Service.
34.2 You must supply us with the information referred to in clause [34.1]:
34.2.1 at our reasonable request made at any time in the 9 months before this contract expires; or
34.2.2 (if this Agreement or its application to a particular Support Service is terminated on notice) within 20 Working Days of your giving or receiving notice of any such termination; or
34.2.3 (if this Agreement or its application to a particular Support Service is terminated immediately) within 20 Working Days of termination.
35. Contract (Rights of Third Parties) Act 1999
35.1 Neither one of us intends to confer any right or benefit upon a third party and for the avoidance of doubt, the provisions of the Contracts (Rights of Third Parties) Act 1999 are expressly excluded from this Agreement.
36. Notices
36.1 Any notice under this Agreement must be in writing and can only be sent by:
36.1.1 recorded delivery post or
36.1.2 personal delivery
36.2 Any other communication under this Agreement must be in writing and can be only sent by:
36.2.1 recorded delivery post; or
36.2.2 personal delivery; or
36.2.3 fax; or
36.2.4 electronic mail
36.3 Our address for the purposes of delivery by recorded delivery post or personal delivery is set out at the start of this Agreement and our fax number and e-mail address are set out for you in schedule [4]. All notices and communications must be sent to the Authorised Officer.
36.4 If our address, fax number or e-mail address changes, we must notify you in accordance with this clause [36] (Notices).
36.5 Your address for the purposes of delivery by recorded delivery post or personal delivery is set out at the start of this Agreement and your fax number and e-mail address must be set
Page 31 of 37 out separately for us in schedule [5]. All notice and communications must be sent to the Contract Manager.
36.6 If your address, fax number or e-mail address changes, you must notify us in accordance with this clause [36] (Notices).
36.7 Subject to clause [36.8], all notices and communications shall be deemed to have been served:
36.7.1 if posted, two Working Days after the date when posted;
36.7.2 if personally delivered, on the date of delivery; or
36.7.3 if sent by fax, when a transmission report is generated confirming that the fax has been transmitted in full.
36.7.4 if sent by e-mail, if no failure to deliver message is received within 24 hours of the time of sending the e-mail or there is evidence of relevant system failure.
36.8 Notwithstanding clause [36.7], if by applying its provisions a notice is deemed to have been served on a day which is not a Working Day or it is not received between the hours of 9am to 5pm on a Working Day then it shall be deemed to have been served on the next immediately following Working Day.
37. Recovery of Sums Due
37.1 If either one of us owes the other money under this Agreement, then the one who is owed the money may set off any such sum against any money it subsequently owes to the other under this Agreement.
38. Law and Jurisdiction
38.1 This Agreement shall:
38.1.1 be governed by and shall be construed in accordance with English law; and
38.1.2 be subject to the exclusive jurisdiction of the Courts of England and Wales, to which both of us shall submit.
39. Severability
39.1 If one or more of the provisions of this Agreement are or become to any extent invalid or unenforceable under any applicable law then the remainder of this Agreement shall continue in full force and effect.
39.2 If this happens then both of us shall enter into good faith negotiations to amend the provision concerned in such a way that as amended, it is valid and enforceable and to the maximum extent possible, carries out both our original intent.
40. Remedies Cumulative
Page 32 of 37 40.1 Any remedy or right which either of us may exercise in relation to a Default committed by the other shall be in addition to, and shall be capable of being exercised without prejudice to, all other rights and remedies available to either of us.
41. Our Functions as a Local Authority
41.1 Nothing in this Agreement shall prejudice or affect our rights, powers, duties and obligations in relation to the exercise of our functions as a local authority.
42. Provider Warranty
42.1 (Where you are not an individual) you warrant that it is within your legal powers to enter into the duties and obligations provided for in this Agreement.
42.2 (In respect of chargeable model agreements only) you warrant (and are deemed to warrant on each claim for payment made by you) that you have informed Service Users of their right to relief from charges under the Fairer Charging system and that you have used reasonable endeavours to encourage and facilitate them in doing so, in particular, at the start of a relevant tenancy or support agreement, to enable (as far as reasonable) the backdating of any relief from charges can be made to the start of such tenancy or agreement.
43. Conclusion of Contract
43.1 When this Agreement ends you must give us, or to any person we may specify, all data, information, files, records, documents and the like (in whatever format they may be held) which we supplied to you for the purposes of this Agreement or which were produced or augmented by you in connection with the carrying out of your obligations under this Agreement.
43.2 Unless we authorise you to do so, or you are required at law to do so, you must not retain any copies of the information etc referred to in clause [40.1].
43.3 Clause [43.1] is subject to the provisions of clauses [18] (Data Protection Act) and [21] (Confidentiality).
Page 33 of 37 Name of service: (ENTER NAME OF SERVICE)
Signed by a duly authorised representative for and on behalf of
…………… (ENTER THE PROVIDER LEGAL ENTITY NAME)…………
Signature: ………………………………………………………..
Name: ………………………………………………………..
Position: ………………………………………………………..
Date: ………………………………………………………..
THE COMMON SEAL of THE BOROUGH COUNCIL OF BOLTON
was hereunto affixed
in the presence of :-
Mayor
by Authorised Sealing Officer
Page 34 of 37 APPENDICES
Appendix 1: TUPE
Information required, if requested, in line with Clause 34:
Principal Terms and Conditions of Employment
Probationary period - if any Retirement Age Period of Notice Current pay agreement Any agreed paid settlements yet to come into effect Working hours Annual leave entitlements Sick leave arrangements Maternity/paternity leave arrangements Special leave arrangements Terms and conditions of transfer Season ticket loan scheme - if provided Car scheme - if provided
Base Data of Staff Who Would Transfer
Number of staff who would transfer and in respect of each person who would transfer:-
Age Sex Salary rate Reckonable Service Input hours Regular overtime and wage rates Other facts affecting redundancy entitlement Any outstanding industrial injury or other claims
Page 35 of 37 Appendix 2: Notifiable Incidents
1.1 Reports that you would be asked to submit to us as soon as they occurred
1.1.1 Incidents reportable to the Commission for Social Care Inspection. This only applies to services registered under the Care Standards Act and we would need a copy of the notification submitted to CSCI.
1.1.2 Injuries to service users (if not covered by item 1 above).
1.1.3 Suicides and attempted suicides (if not covered by 1 or 2 above).
1.1.4 Incidents reportable to the Health and Safety Executive or the Environmental Health Department of your local authority. A copy of the notification would be required
1.1.5 Notifications of adverse incidents involving medical devices reported to the Medicines and Healthcare products Regulatory Agency (MHRA). A copy of the report would be required.
1.1.6 An inability to continue to provide part or all of the services (for instance because of fire or damage to property).
1.1.7 Police actions or investigations relating to service users and the services being provided.
1.2 Copies of notices served on you to be sent to us
1.2.1 Enforcement and Improvement Notices served by any regulatory agency
Page 36 of 37 Appendix 3 Caldicott Principles
Principle 1 - Justify purposes(s) – Individuals, departments and organisations must justify the purpose(s) for which information is required. This includes justifying the purposes to the public for specific clients as well as to the Caldicott Guardians within each organisation. Every proposed use or transfer of client-identifiable information within or from an organisation should be clearly defined and scrutinised, with continuing uses regularly reviewed by an appropriate guardian within the service.
Principle 2 - Don’t use client-Identifiable information unless it is absolutely necessary This means assessing information flows and uses and ensuring that client identifiable information is removed unless a genuine case can be made for its inclusion and there is no alternative.
Principle 3 - Use the minimum necessary client- identifiable information Where use of client-identifiable information is considered to be essential, each individual item of information should be justified with the aim of reducing identifiability.
Principle 4 - Access to client-identifiable information should be on a strict need to know basis Only those individuals who need access to client-identifiable information should have access to it, and they should only have access to the information items that they need to see.
Principle 5 - Everyone should be aware of their responsibilities Action should be taken to ensure that those handling client-identifiable information are aware of their responsibilities and obligations to respect client confidentiality.
Principle 6 - Understand and comply with the law The most relevant and important of which are the Data Protection Act 1998, The Access to Medical Reports Act 1988 and the Police and Criminal Evidence Act 1984.
Every use of client-identifiable information must be lawful. Someone in each organisation should be responsible for ensuring that the practice complies with legal requirements – Caldicott Guardian.
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