Agreement for Countywide Home Improvement Agency Service

Transcription

1 Devon Social Services Directorate Agreement for Countywide Home Improvement Agency Service Provider Agreement No

2 Contents of the Agreement General Conditions 1 Definitions of Terms 2 Commencement Date 3 Review of this Agreement 4 Service Provider s Obligations 5 Advertising 6 Quality Control 7 Nature and Extent of Services 8 Provision of Information and Documentation 9 Patent Rights and Intellectual Property 10 Confidentiality & Data Protection 11 Service Provider s Staff 12 Conduct of Service Provider s Staff 13 Observance of Statutory Requirements 14 Equal Opportunities & Race Relations Act 1976 as amended 15 Human Rights Act Freedom of Information Act Complaints 18 Adult Protection 19 Child Protection 20 Service Provider s Representative 21 Health & Safety at Work 22 Monitoring of the Service 23 Inability to Perform the Service 24 Default 25 Termination 26 Rights of the Service Purchaser upon Termination of the Agreement 27 Disputes 28 Payment Arrangements 29 Authorised Officer 30 Statutory Duties and Local Authority Requirements 31 Indemnity 32 Insurance 33 Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) TUPE Indemnity 34 Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) Pensions 35 Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) ODPM Circular 3/2003 Annex D Code of Practice on Workforce Matters 2

3 Contents of the Agreement (continued) 36 Force Majeure 37 Assignment and Sub-Contracting 38 Notices 39 Waiver 40 Proper Law and Jurisdiction 41 Declaration of Interests 42 Variations 43 Errors and Omissions 44 Warranty 45 Severance 46 Entire Agreement 47 Rights Cumulative 48 Survival of Terms 49 Costs of Agreement 50 Third Party Rights 51 No Partnership or Agency 52 Service Development and Technology 53 Case Records Schedule A A1 A2 A3 A4 A5 A6 A7 A8 A9 A10 A11 A12 A13 Service Specification Home Improvement Agency Service Introduction Aim of the Service Objectives Service Values and Principles Description of Service Volumes of Service Availability Staffing Public Information and Publicity Service Quality Contract Monitoring Contract Review Contract Development Schedule B B1 B2 B3 B4 Service Element 1 General Advice and Information Service Description Eligibility Tenure Funding of this service element 3

4 Contents of the Agreement (continued) B5 B6 Referral Arrangements and Response Times Monitoring Schedule C C1 C2 C3 C4 C5 Service Element 2 Co-ordination Service Description Eligibility Funding of this service element Referral Arrangements and Response Times Monitoring Schedule D D1 D2 D3 D4 D5 D6 Service Element 3 Repairs and Improvements Service Description Eligibility Tenure Funding of this service element Standards Monitoring Schedule E E1 E2 E3 E4 E5 E6 Schedule F F1 F2 F3 F4 F5 F6 F7 Schedule G G1 G2 Service Element 4 Major Adaptations (including Disabled Facilities Grants) Service Description Eligibility Tenure Funding of this service element Standards Monitoring Service Element 5 Minor Adaptations Service Description Eligibility Tenure Funding of this service element Invoicing and Payment Arrangements Referral Arrangements and Response Times Monitoring Service Element 6 Handyperson and Maintenance Services Service Description Eligibility 4

5 Contents of the Agreement (continued) G3 G4 G5 G6 Schedule H H1 H2 H3 H4 H5 H6 Schedule J J1 J2 J3 J4 J5 Schedule K Schedule L Schedule M Schedule N Schedule P Tenure Funding of this service element Response Times Monitoring Service Element 7 Home Safety Assessment Service Description Eligibility Tenure Funding of this service element Response Times Monitoring Price and Financial Arrangements Price Invoicing Arrangements Payment Arrangements Hardship Fund Efficiency Savings Draft Countywide Major Adaptations Protocol Roles and Responsibilities of HIA where acting as Key Worker Devon Standards for Major Adaptations National Targets and Performance Indicators relevant to HIA Service Delivery Delivery and Improvement Statement Guidance: Performance Assessment Framework D54 ODPM Circular 3/2003 Annex D Code of Practice on Workforce Matters in Local Authority Contracts Workforce matters under best value Treatment of transferees Treatment of new joiners to an outsourced workforce Pension arrangements for new joiners to an outsourced workforce Monitoring arrangements Enforcement Sub-contractors Operation of this Code 5

6 Contents of the Agreement (continued) Schedule Q Code of Practice on Handling Workforce Issues: Alternative Dispute Resolution Procedure 1 Introduction 2 The need to exhaust local procedures 3 Who is responsible for resolving disputes? 4 The dispute resolution process Schedule R Admission Agreement 1 Interpretation 2 Commencement Date 3 Admission 4 Participation 5 Payments 6 Transferee Admission Body s Undertakings 7 Periodic Valuations 8 Termination 9 Bond or Indemnity 10 Notices 11 Public Inspection 12 Disputes 13 Applicable Law 14 Rights of Third Parties Schedule S Schedule T Service Provider s Approval Process for Contractors Requisition Form for the Provision of a Minor Adaptation Authorised Signatures to the Agreement 6

7 General Conditions THIS AGREEMENT is made the 2nd day of March 2006 BETWEEN DEVON COUNTY COUNCIL of County Hall, Topsham Road, Exeter, Devon EX2 4QR ( the Service Purchaser ) and whose registered office is at ( the Service Provider ) WHEREAS A The Service Purchaser has a discretionary power to provide a Home Improvement Agency Service in the homes or other appropriate settings for its Service Users. B The provision of a Home Improvement Agency service is in line with the goal of promoting a healthy and caring Devon, as stated in the Devon County Council Strategic Plan for , Working for a Better Devon. C The National Service Framework for Older People Standard 8 states that the health and wellbeing of older people is promoted through a co-ordinated programme of actions, which aims to extend healthy life expectancy. The Home Improvement Agency service forms an integral part of the framework of support that is needed to achieve this. D The Service Purchaser has prepared a Service Specification describing the Home Improvement Agency service it wishes to make available and has accepted a tender from the Service Provider for the provision of that service. 7

8 General Conditions Continued IT IS AGREED AS FOLLOWS 1. Definitions of Terms: 1.1 The following terms shall have the following meanings for the purposes of this Agreement. Agreement this Agreement and the Schedules attached hereto. Authorised Officer the person or persons nominated by the Service Purchaser for the management of the Agreement and notified to the Service Provider as such in accordance with clause 29. Caldicott Principles - a set of standards identified by the 1997 Caldicott Committee, which govern the use of personally identifiable information in the health service and councils with social services responsibilities. Code the Code of Practice on Workforce Matters in Local Authority Service Contracts as currently contained in ODPM Circular 3/03 Annex D. Code Obligations the express obligations of the Service Provider in clause 35 (other than that in clause ) which derive from the Code. Commencement Date 3 rd April Default any failure on the part of either the Service Purchaser or the Service Provider to carry out their respective obligations under the Agreement. Default Notice a notice which either Party serves on the other which sets out the nature of the Default and the time scale in which it must be put right. Dispute Resolution Procedure the procedure set out in Schedule Q (the ADR agreed under the Code) Duly Authorised Signatories the persons who are entitled to sign this Agreement on behalf of the Service Purchaser and the Service Provider. Local Government Pension Scheme the Local Government Pension Scheme established pursuant to regulations made by the Secretary of State in exercise of powers under sections 7 and 12 of the Superannuation Act 1972 as amended from time to time. New Employees those new employees employed by the Service Provider to provide the Service who will be working alongside the Transferring Employees. Parties the Service Provider and the Service Purchaser. Pension Scheme the Service Provider s Pension Scheme referred to in clause 34 Performance Assessment Framework PAF indicators are used by the Commission for Social Care Inspection (CSCI) to help evaluate Social Services performance. These must be reported on a quarterly basis to CSCI. Persistent Default where either Party has committed more than two Defaults during any period of six consecutive months, whether these are the same Defaults or different Defaults, or where either Party has failed to rectify a Default within a specified timescale. Regulatory Bodies organisations that have a statutory responsibility for regulating the operations of the Service Provider. Relevant Employees the employees who are the subject of a Relevant Transfer. Relevant Transfer a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations

9 General Conditions Continued Requisition Form for the Provision of a Minor Adaptation the Service Purchaser s form SS316 which will be used to describe the minor adaptations to be arranged by the Service Provider. Single Assessment Process a nationally agreed joint approach to assessing the Health and Social Care needs of adults. It is currently being implemented in the South West peninsular. Serious Default a Default which materially prejudices the health, safety or welfare of a Service User or Service Users. Service the Home Improvement Agency service described in Schedules A to H inclusive. Service Provider s Representative the person or persons notified as such by the Service Provider to the Service Purchaser in accordance with clause 20 and 27. Service Purchaser Devon County Council or any successor and any other organisation with responsibility for purchasing the Service under this Agreement. Service Specification the specification annexed hereto at Schedule A, and any modification or addition as may from time to time be furnished or approved by the Service Purchaser. Service User an individual client of the Service Purchaser who uses the Service. Scheme s Actuary Devon County Council s pensions fund actuary for the purpose of the Local Government Pensions Scheme. Sub-Contractor any person whose services the Service Provider engages or makes use of to perform the whole or any part of the Service. Transferring Employees those employees of Exeter City Council who shall transfer under TUPE to the employment of the Service Provider on the Commencement Date. TUPE the Transfer of Undertakings (Protection of Employment) Regulations 1981 (as amended). Variation Letter a letter which sets out a variation to the Agreement agreed and signed by both Parties. VAT Value Added Tax. Working Days between 9.00am and 5.00pm Monday to Friday inclusive, but does not include any days that are Bank Holidays or public holidays. 1.2 Reference to any statute or statutory provision includes a reference to: a) that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated; and b) all statutory instruments or orders made pursuant to it. 1.3 Words denoting the singular number only shall include the plural and vice versa. Words denoting any gender include all genders and words denoting persons shall include firms and corporations and vice versa. 1.4 Unless the context otherwise requires reference to any clause, sub-clause or schedule is to a clause, sub-clause or schedule (as the case may be) of or to this Agreement. 1.5 The headings in this Agreement are inserted for convenience only and shall not affect the construction or interpretation of this Agreement. 9

10 General Conditions Continued 2. Commencement Date 2.1 This Agreement shall commence on the Commencement Date and shall continue for a period of five years. 2.2 Not withstanding the provisions of clause 2.1 above this Agreement may be terminated early in accordance with clause Review of this Agreement 3.1 This Agreement may be reviewed at any time upon the request of either the Service Purchaser or the Service Provider. 3.2 This Agreement shall be reviewed not less than 12 months prior to the expiry date in order to determine whether the Agreement is to be renewed for a further period. 4. Service Provider s Obligations 4.1 The Service Provider shall upon and subject to the provisions of the Agreement carry out and complete the Service to the satisfaction of the Service Purchaser. 5. Advertising 5.1 The Service Provider shall not use the Service Purchaser s name for the purposes of advertisement or any form of promotion, without the Service Purchaser s consent in writing. 6. Quality Control 6.1 The Service Provider shall either: Have achieved the HIA Quality Mark; or Undertake to achieve the HIA Quality Mark within the first 12 months of the Agreement period. In either case the Service Provider s records shall be open to inspection by the Authorised Officer at all reasonable times. 7. Nature and Extent of Services 7.1 The submission of a tender by the Service Provider is deemed to mean that the Service Provider has understood and satisfied itself as to the nature and extent of the Service. 8. Provision of Information and Documentation 8.1 The Service Provider shall conform in all respects to the instructions of the Service Purchaser and its Authorised Officer with respect to any lists, invoices, statements, accounts or other documents which the Service Purchaser considers necessary or desirable in connection with the performance or monitoring of the Agreement. 9. Patent Rights and Intellectual Property 9.1 The Service Provider shall indemnify the Service Purchaser and keep the Service Purchaser indemnified from and against all claims and proceedings for or on account of infringement or alleged infringement of letters patent, designs, copyright, trade-mark or name or other protected rights in respect of all appliances, materials, processes or things of whatsoever nature used for or in connection with the Service and from and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto. 9.2 The Service Provider shall not cause or permit anything which may damage or endanger the intellectual property of the Service Purchaser or the Service Purchaser s title to it or assist or allow others to do so. 10. Confidentiality & Data Protection 10.1 The Service Provider shall comply in all respects with the requirements of the Data Protection Act 1998 and Caldicott Principles in so far as they apply to the Service and shall provide sufficient guarantees in respect of the security measures taken with regard to all information concerning Service Users. 10

11 General Conditions Continued 10.2 The Service Provider shall take all reasonable steps to ensure that all information concerning Service Users is treated as confidential and must not divulge or allow to be divulged such information except to the extent permitted under this Agreement or authorised by the Authorised Officer The Service Provider shall indemnify and keep the Service Purchaser indemnified against all actions, costs, expenses, claims, proceedings and demands which may be made or brought against the Service Purchaser for breach of statutory duty under the Data Protection Act 1998 which arises from the use disclosure or transfer of any personal data or sensitive personal data by the Service Provider or any of the Service Provider s personnel, agents or Sub-Contractors The Service Provider and the Service Provider s staff shall regard as confidential and shall not disclose to any person other than a person authorised by the Service Purchaser any information acquired by the Service Provider or the Service Provider s staff in or in connection with the provision of the Service concerning the Service Purchaser or any body or person with whom the Service Purchaser has dealings. 11. Service Provider s Staff 11.1 The Service Provider shall select, employ, train, furnish and deploy in and about the performance of the Service and in the management thereof only such persons as are of good character, careful, skilled and experienced in their several trades and callings and who are proficient, productive and courteous The Service Provider shall employ sufficient staff, to ensure that the Service is provided at all times in accordance with the Service Specification. Without prejudice to the generality of this obligation, it shall be the duty of the Service Provider to ensure that a sufficient reserve of staff is available to provide the Service in accordance with the Service Specification during staff holidays or absence through sickness or any other cause The Service Provider shall ensure that every person employed by it in and about the provision of the Service is at all times properly trained and instructed with regard to: all relevant rules, procedures and standards of the Service Purchaser; fire risks and fire precautions in the Service User s accommodation; the need for those working in the provision of the Service to observe acceptable standards of hygiene, courtesy and consideration; the need to recognise situations which involve actual or potential danger or personal injury to any person and to record such incidents and: where possible without personal risk to make such situations safe, and forthwith to report such situations to the Authorised Officer; the responsibilities of the Authorised Officer; the needs of Service Users the requirement for all information concerning Service Users to be treated as confidential and not to be divulged except to the extent permitted under this Agreement or authorised by the Authorised Officer The Service Provider shall ensure that its staff carry out their duties and behave whilst in the Service User s accommodation in an orderly manner and in as quiet a manner as may reasonably be practicable having regard to the nature of the duties being performed by them The Service Provider shall obtain a declaration by prospective employees concerning previous employment with the Service Purchaser, and shall not knowingly employ any person who has previously been so employed without first consulting the Authorised Officer and shall not without the approval of the Authorised Officer employ any person whose previous employment with the Service Purchaser was unsatisfactory. 11

12 General Conditions Continued 11.6 The Service Provider must take all reasonable measures to ensure that staff are suitable for the work they shall undertake. This must include staff being asked to declare previous convictions and informed that failure to declare convictions which subsequently come to light may result in dismissal Where the Service Provider is aware of a previous conviction (except for minor motoring offences) it must inform the Service Purchaser within five working days, and the Service Purchaser shall determine whether the staff member concerned may continue to work in the Service The Service Provider shall be obliged to comply with any checks including without limitation CRB checks the Service Purchaser wishes the Service Provider to undertake in connection with staff engaged to perform the Service and the Service Provider shall at its own expense promptly carry out such checks. 12. Conduct of Service Provider s Staff 12.1 Whilst in the Service User s accommodation, the Service Provider shall have proper regard for safety and shall observe and conform to all statutory enactments and regulations and any bye-laws or regulations of local or other authorities applicable to the Service Whilst in the Service User s accommodation, the Service Provider shall observe any rules, regulations or prohibitions as regards behaviour and conduct laid down by the Service Purchaser and brought to the attention of the Service Provider either through this Agreement by written notice or other means. The Service Purchaser shall have the right to require the Service Provider to remove forthwith any employee of the Service Provider from the Service who, following a warning either: fails to comply with the rules, regulations or prohibitions; or has in the opinion of the Authorised Officer misconducted himself or has been negligent or incompetent The Service Provider shall prohibit its staff from smoking whilst in the Service User s accommodation The Service Provider shall prohibit its staff from consuming alcohol or using illegal drugs whilst in the Service User s accommodation and shall ensure that its staff are not under the influence of alcohol or illegal drugs The Service Provider shall be responsible for ensuring that the security of the Service User s accommodation is not jeopardised by for example failing to close doors properly Neither the Service Provider nor any member of its staff shall solicit or accept gifts or gratuities from any Service User When requested to do so, or when communicating with other persons as a representative of the Service Provider in the performance of the Service, any employee, representative or agent of the Service Provider shall disclose his identity and shall not attempt to avoid so doing The Service Provider shall ensure all staff display individual identification badges Any employee of the Service Provider whose conduct, behaviour or manner is in the opinion of the Authorised Officer unacceptable shall be removed by the Service Provider from the Service. In such circumstances the Service Provider must immediately provide a suitable replacement The Service Purchaser shall not be responsible either to the Service Provider or to any of its employees in respect of any liability, loss or damage occasioned by the withdrawal, suspension or removal of an employee from the Service required by the Service Purchaser under this Clause 12 and the Service Provider shall fully indemnify the Service Purchaser against any such claim made by such employees. 12

13 General Conditions Continued 13. Observance of Statutory Requirements 13.1 The Service Provider shall comply with all statutory and other provisions to be observed and performed in connection with the Service and shall indemnify the Service Purchaser against any claims made as a result of any failure by the Service Provider to comply. 14. Equal Opportunities & Race Relations Act 1976 as amended 14.1 The Service Provider shall comply with the requirements of the following Acts and Regulations: Race Relations Act 1976 and Race Relations (Amendment) Act 2000 Disability Discrimination Act 1995 Equal Pay Act 1975 (amended 1984) Sex Discrimination Act 1975 (amended 1986) Employer Equality (Sexual Orientation) Regulations 2003 Employer Equality (Religion and Belief) Regulations 2003 and shall operate an equal opportunities policy and provide the Service Purchaser with a copy of the policy and updates upon request The Service Provider shall ensure that the 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. This shall relate to decisions made by the Service Provider in the recruitment, training or promotion of staff employed or to be employed in the provision of the Service and the carrying out of obligations under this Agreement In providing the Service, the Service Provider shall observe the Code of Practice for Employment issued by the Commission for Racial Equality ( the CRE Code ), any updates to the CRE Code, or any code which may replace it. The Service Provider shall provide the Service Purchaser with such information as may be reasonably required in order to assess the Service Providers compliance with the CRE Code If any Court or Tribunal, or the Commission for Racial Equality, or any body which may replace the Commission, finds that the Service Provider has unlawfully discriminated against any person, in the provision of the Service, then the Service Provider shall take all necessary action to prevent the recurrence of unlawful discrimination and shall notify the Service Purchaser in writing of the finding and the action taken The Service Provider shall, in providing the Service, give appropriate consideration to each Service User s race, nationality, cultural or ethnic background, marital status, age, gender, religion, sexual orientation and disabilities. 15. Human Rights Act The Service Provider acknowledges that: in performing its obligations under this Agreement it may be a public authority for the purposes of the Human Rights Act 1998; and it is unlawful to exercise functions which are of a public nature in a way that is incompatible with the rights set out in the European Convention on Human Rights and the Human Rights Act In providing the Service, the Service Provider shall be subject to the same duty in respect of human rights (being those stipulated in the Human Rights Act 1998) as if it were the Service Purchaser. 13

14 General Conditions Continued 15.3 In the event that the Service Purchaser becomes aware of any act, or failure to act, on the part of the Service Provider that directly contravenes or falls short of the statutory requirements of the Human Rights Act 1998, then the Service Purchaser shall notify the Service Provider to either undertake or refrain from undertaking such specific acts. The Service Provider shall rectify such contravention by undertaking, or refraining from undertaking such acts as soon as practicably possible, but in any case, within 10 working days of receipt of such notification from the Service Purchaser. 16. Freedom of Information Act Information provided by the Service Provider relating to this Agreement is not exempt information under the Freedom of Information Act 2000 ( the Act ) and nothing in this Agreement shall inhibit the Service Purchaser in complying with its obligations under the Act Information provided to the Service Provider by the Service Purchaser in relation to this Agreement and which is exempt from disclosure under the Act shall not be disclosed by the Service Provider to any person or organisation The Service Provider shall comply promptly and fully with all reasonable requests made by the Service Purchaser to enable the Service Purchaser to comply with the Act. 17. Complaints 17.1 The Service Provider shall operate a complaints procedure for Service Users and shall provide a copy to the Service Purchaser on request. The Service Provider s complaints procedure shall be approved by the Service Purchaser. 18. Adult Protection 18.1 The Service Provider shall act in accordance with the Service Purchaser s Multi Agency Procedures and Guidance for the Protection of Adults at Risk (ref. 342) and the Public Disclosure Act 1998 to ensure appropriate action is taken in response to the suspicion or evidence of abuse or neglect (including whistle blowing) to ensure the safety and protection of Service Users. 19. Child Protection 19.1 The Service Provider shall ensure that its staff have an awareness of their child protection responsibilities. In this respect all staff who may come into contact with children and young people must be provided with a copy of the Service Purchaser s Information Leaflet Number 21 Child Protection What Can I Do? The Service Provider shall ensure that its staff fully understand their responsibilities in relation to this advice. 20. Service Provider s Representative 20.1 The Service Provider shall make known to the Authorised Officer in writing the identity of the Service Provider s Representative and the arrangements by which contact can be made with that person, giving their address, telephone and fax numbers and address Any notice, information, instruction or other communication given or made to the Service Provider s Representative shall be deemed to have been given to the Service Provider Until written notice is given of a subsequent appointment the Service Purchaser shall be entitled to treat as the Service Provider s Representative the last person notified to the Service Purchaser as being so authorised The Service Provider shall inform the Authorised Officer of the identity of any person authorised to act for any period as deputy for the Service Provider s Representative before the start of that period The Service Provider s Representative shall consult with the Authorised Officer, as often as may reasonably be necessary for the efficient provision of the Service in accordance with the terms of this Agreement. 14

15 General Conditions Continued 21. Health & Safety at Work 21.1 The Service Provider shall at all times comply with the requirements of the Health and Safety at Work etc Act 1974 and of any other Acts, Regulations or Orders pertaining to the health and safety of employees The Service Provider shall have regard to the Service Purchaser s Health and Safety Policy when preparing its own statement of health and safety policy, a copy of which shall be supplied to the Service Purchaser prior to the commencement of the Agreement. The Service Provider shall nominate a person to be responsible for health and safety matters as required by the Management of Health and Safety Regulations The Service Purchaser shall be empowered to suspend the provision of the Service in the event of non-compliance by the Service Provider with health and safety matters. The Service Provider shall not resume provision of the Service until the Service Purchaser is satisfied that the noncompliance has been rectified The Service Purchaser shall notify the Service Provider in writing of any matters which require any action on the part of the Service Provider and the Service Provider shall take that action within such time (if any) as may be specified in the notification. 22. Monitoring of the Service 22.1 Where the Service Provider receives a complaint about any aspect of the Service from a Service User or any person on behalf of a Service User the Service Provider shall inform the Service Purchaser forthwith, in writing. Within 48 hours of a request from the Service Purchaser so to do the Service Provider shall provide to the Service Purchaser a written report of the Service Provider s investigation of the complaint, and where appropriate an action plan designed to prevent a recurrence of the cause of the complaint In the event of the Service Provider either: failing to begin or, having begun, failing to proceed diligently with the Service or any part thereof; or failing to carry out the Service or any part thereof to the satisfaction of the Service Purchaser then and without prejudice to any other remedy contained herein and without further reference to the Service Provider the Service Purchaser may by its own or other workforce execute such Services or such part thereof as the Service Provider has failed to execute to the satisfaction of the Service Purchaser and to recover from the Service Provider the cost of so doing less the amount the Service Provider would have received had he executed such Services to the satisfaction of the Service Purchaser. 23. Inability to Perform the Service 23.1 In the event of the Service Provider being unable to perform the Service in whole or in part, they shall immediately inform the Authorised Officer The Service Provider shall keep the Authorised Officer fully informed about the state of its industrial relations and shall give the maximum possible advance warning to the Service Purchaser of prospective industrial action by its staff. 24. Default 24.1 If one Party considers that the other is in Default of their obligations under this Agreement, they shall issue a Default Notice setting out the nature of the Default and specifying a reasonable time scale within which the Default shall be put right If the Default is a Persistent Default or a Serious Default, then the Default Notice must say so Where appropriate the Service Purchaser may inform any relevant Regulatory Bodies or other local authorities of any action it has taken pursuant to this clause. 15

16 General Conditions Continued 25. Termination 25.1 This Agreement may be ended at any time by either Party, giving not less than 12 months notice in writing stating the reasons for this action The Service Purchaser may (without prejudice to any other right to terminate the Agreement and without prejudice to any claim for damages in respect of any antecedent breach of the Agreement) by notice terminate the Agreement forthwith or with effect from such date as may be specified if the Service Provider : becomes bankrupt or makes a composition or arrangement with his creditors or has a proposal in respect of its company for voluntary arrangement for a composition of debts or scheme or arrangement approved in accordance with the Insolvency Act 1986, or has a winding-up order made or (except for the purposes of amalgamation or reconstruction) a resolution for voluntary winding-up passed, or has a provisional liquidator receiver or manager of its business or undertaking duly appointed, or has an administrative receiver as defined in the Insolvency Act 1986 appointed, or has possession taken by or on behalf of the holders of any debentures secured by a floating charge of any property comprised in or subject to the floating charge, or is in circumstances which entitle the court or a creditor to appoint or have appointed a receiver, a manager or administrative receiver or which entitle the court to make a winding-up order, or has abandoned the Agreement, or without reasonable excuse has failed to commence the provision of the Service, or despite previous warning by the Authorised Officer in writing is failing to proceed with the Service with due diligence, or despite previous warning by the Authorised Officer in writing has failed to comply with all or any of the obligations placed on him under this Agreement, including without limitation, its obligations as to confidentiality contained in clause 10 above The Service Purchaser may terminate this Agreement with immediate effect where the Service Provider is in Serious or Persistent Default of the terms of the Agreement, and/or take whatever other action may reasonably be deemed necessary to protect the health, safety or welfare of any or all of the Service Users The Service Purchaser may terminate the Agreement and recover from the Service Provider the amount of any loss resulting from such cancellation if the Service Provider shall have offered or given or agreed to give to any person any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or having done or forborne to do any action in relation to the obtaining or execution of the Agreement or any other agreement with the Service Purchaser, or for showing or forbearing to show favour or disfavour to any person in relation to the Agreement or any other agreement with the Service Purchaser, or if the like acts shall have been done by any person employed by it or acting on its behalf (whether with or without the knowledge of the Service Provider), or in relation to any agreement with the Service Purchaser, the Service Provider or any person employed by him or acting on its behalf shall have committed any offence under the Prevention of Corruption Acts , or shall have given any fee or reward the receipt of which is an offence under Section 117(2) of the Local Government Act Rights of the Service Purchaser upon Termination of the Agreement 26.1 In the event of the termination of the Agreement pursuant to clause 25 the Service Purchaser shall be entitled itself to employ and pay persons (including persons employed by the Service Provider immediately prior to the termination of the Agreement) to provide and complete the Service or any part thereof. 16

17 General Conditions Continued 26.2 The Service Purchaser shall be entitled to deduct from any sum or sums due from the Service Purchaser to the Service Provider under this Agreement or be entitled to recover the same from the Service Provider as a debt any loss or damage to the Service Purchaser resulting from or arising out of the termination of the Agreement by the Service Provider. Such loss or damage shall include the reasonable cost to the Service Purchaser of the time spent by its officers in terminating the Agreement and in making alternative arrangements for the provision of the Service or any part thereof When the total value of the costs, loss and damage sustained by the Service Purchaser arising out of the termination of the Agreement has been ascertained and deducted so far as possible from any sum or sums due to the Service Provider, any balance then due to the Service Purchaser shall be recoverable as a debt and any balance then due to the Service Provider shall be paid to the Service Provider The rights of the Service Purchaser under this clause 26 are in addition to and without prejudice to any other rights the Service Purchaser may have whether against the Service Provider directly or pursuant to any guarantee, indemnity or bond. 27. Disputes 27.1 The Parties shall use their best endeavours to resolve by agreement any dispute between them arising out of or in connection with this Agreement If any dispute arises between the Parties then the following procedure shall be used: a meeting between the Authorised Officer and the Service Provider s Representative shall be arranged, such meeting to take place within 10 Working Days or such shorter period as may be agreed if the dispute remains unresolved, then a further meeting within a further 10 Working Days or such shorter period as may be agreed involving senior representatives of the Parties shall be arranged if the dispute is still not resolved, then the matter shall be referred to independent mediation as soon as reasonably practicable. The mediator shall be an individual or organisation agreeable to both Parties. The costs of mediation shall be borne in equal parts between the Parties if the dispute cannot be satisfactorily resolved through mediation, then if both Parties agree the dispute may be referred to a single arbitrator agreed by both Parties, or in default of agreement to be nominated by the President for the time being of the Chartered Institute of Arbitrators in accordance with the Arbitration Act Use of the dispute procedure set out in this Agreement shall not delay, or take precedence over, any use of the Default or Termination procedures. 28. Payment Arrangements 28.1 Payments between the Parties shall be effected in accordance with Schedule J. 29. Authorised Officer 29.1 The Service Purchaser shall notify to the Service Provider the person(s) nominated as Authorised Officer(s) for the purposes of this Agreement. From time to time the Service Purchaser may appoint one or more deputies to act for the Authorised Officer generally or for a specified period, or for specified purposes. All such appointments shall be notified to the Service Provider. 17

18 General Conditions Continued 30. Statutory Duties and Local Authority Requirements 30.1 In order that the Service Purchaser may comply with its statutory duty, in particular with regard to Best Value under Part 1 of the Local Government Act 1999, the Service Provider shall make available such facilities, assistance and information as may reasonably be requested, and is subject to clause 10 of this Agreement. The information to be supplied will be as agreed between Service Purchaser and Service Provider and shall be available electronically in a timely and accurate manner at the end of each designated four-week period The Service Provider shall allow the Service Purchaser s employees or authorised agents access to employees and all information, reports, financial accounts, documents, records and data which are relevant to this Agreement or the Service provided. The Service Provider shall permit the Service Purchaser to take copies of this information and shall ensure that any information or reports made available under this clause are treated as confidential information and therefore subject to the provisions of clause 10 of this Agreement. In this regard the Service Provider shall allow the Service Purchaser access to any buildings belonging to or controlled by the Service Provider Where appropriate, the Service Provider shall be given reasonable notice of a visit by a representative from the Service Purchaser The Service Purchaser reserves the right to visit the Service provided under this Agreement unannounced to ensure compliance with the Service Provider s own Policies and Procedures and to ensure the consistent performance of the Service. 31. Indemnity 31.1 The Service Provider shall indemnify and keep the Service Purchaser fully indemnified against all, actions, claims, demands, proceedings, costs and damages (including any damages or compensation paid by the Service Purchaser on the advice of its legal advisors to compromise or settle any claim) and all legal costs and other expenses in respect of any claim arising out of the provision of the Service including without limitation claims in relation to the injury to, or death of, any person, and loss of or damage to, any property including property belonging to the Service Purchaser except and to the extent that such claims arise out of the negligence of the Service Purchaser, its employees or agents not being the Service Provider or its personnel The Service Purchaser shall indemnify the Service Provider and keep the Service Provider fully indemnified against all actions, claims, demands, proceedings, costs and damages (including any damages or compensation paid by the Service Provider on the advice of its legal advisors to compromise or settle any claim) arising from actions or work undertaken in the delivery of the Service by other previous Service Providers excluding the Service Provider prior to the commencement of this Agreement. 32. Insurance 32.1 The Service Provider shall at all times maintain in full force and effect the following minimum insurance cover and provide to the Service Purchaser, upon request, written evidence to the Service Purchaser s satisfaction that cover is in place. The Service Provider shall also ensure that any Sub-Contractors who are providing any or all of the Service on their behalf take out and maintain equivalent insurance: Employers Liability Insurance in the sum of at least 10 million for each and every claim, act or occurrence or series of claims, acts or occurrences; Public Liability Insurance in the sum of at least 5 million for each and every claim, act or occurrence or series of claims, acts or occurrences; Professional Indemnity Insurance in the sum of at least 1 million for each and every claim, act or occurrence or series of claims, acts or occurrences; Motor Vehicle Insurance covering the Service Provider s business use and which complies with statutory obligations with regard to third party liability. 18

19 General Conditions Continued 32.2 The Service Purchaser shall be entitled to notify the Service Provider in writing that in the opinion of the Service Purchaser any such policy of insurance does not effect sufficient cover to comply with the Agreement and to require the Service Provider forthwith to procure and effect such insurance as the Service Purchaser shall require. 33. Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) TUPE Indemnity 33.1 The Service Purchaser shall indemnify the Service Provider and keep the Service Provider fully and effectively indemnified from and against all and any costs, claims, expenses, damages, demands, actions and liabilities which the Service Provider may suffer or incur as a result directly or indirectly of any claim brought by any of the Transferring Employees arising from any act or omission, breach or default or obligation or liability of the Service Purchaser prior to the Commencement Date provided that this clause shall not apply to any equal pay claim in which Employment Tribunal proceedings are not commenced before the expiry of the period of six months commencing on the Commencement Date The Service Provider shall be entirely responsible for all employment costs and other costs associated with members of staff including without limitation those of the Transferring Employees who become employees of the Service Provider or pursuant to the Regulations (whether employed by the Service Provider, a Sub-Contractor, or self-employed) The Service Provider shall indemnify the Service Purchaser and any replacement Service Provider engaged by the Service Purchaser to perform any of the Service or any service equivalent or similar to any of the Service and keep them both fully indemnified from and against all and any costs, claims, expenses, damages, demands, actions and liabilities which relate to any claim which is or may be brought by any Transferring Employee, a trade union or other employee representative (including, without limitation, claims for redundancy payments or claims under TUPE Regulation 10) arising from any act or omission breach or default or obligation or liability of the Service Provider or any Sub-Contractor or any other event throughout the term of the Agreement, including without limitation in respect of any transfers under the Regulations at the end of this Agreement The Service Purchaser shall have the following rights and the Service Provider the following obligations when the Service Purchaser is preparing to re-let the Agreement The Service Purchaser may request from the Service Provider such details relating to the Service Provider s method of service delivery and staff, and of their terms and conditions of service, as the Service Purchaser may reasonably require as being necessary to disclose to other tenderers to enable them to prepare and make a bid. The Service Provider shall comply with such request as soon as reasonably practicable and in any event, within 21 days of being so requested, and at no cost to the Service Purchaser. The Service Provider covenants with the Service Purchaser that the information provided shall be complete and accurate and up to date and that it shall notify the Service Purchaser promptly of any changes occurring between the date of submission of the information and the end of the Agreement. The Service Provider expressly authorises the Service Purchaser to use the information in the manner described above The Service Provider shall enable and assist the Service Purchaser and any such persons as the Service Purchaser may determine to communicate with and meet the employees and relevant trade union and/or elected employer representatives The Service Provider shall indemnify and keep the Service Purchaser and any replacement Service Provider indemnified fully in respect of any claims, losses, costs, expenses, demands and liabilities arising from the provision of information or the failure to provide information under clause above. 19

20 General Conditions Continued 33.6 The Service Provider undertakes not to change the personnel or service delivery structure nor dismiss staff other than for bona fide or economic or operational reasons related to delivery of service under the Agreement, including but not limited to changes to preclude or promote the application of TUPE upon termination or expiry of the Agreement. By way of example, the Service Provider shall not unreasonably allocate staff without organisational or economic justification nor artificially reorganise its workforce into particular undertakings nor increase the remuneration of employees nor otherwise improve their terms and conditions or employment without economic justification towards the expiry date of the contract with a view to discouraging other potential bidders The Service Provider warrants that it has provided to the Service Purchaser all information necessary to enable the Service Purchaser to undertake information and consultation obligations under the Regulations The Service Provider shall within 10 working days of receiving a request from the Service Purchaser, furnish to the Service Purchaser any information deemed by the Service Purchaser necessary concerning any measures (within the meaning of the Regulations) that the Service Provider intends to take in relation to any Relevant Employee and shall indemnify the Service Purchaser against all losses, costs, claims, demands, actions, fines, penalties, liabilities and expenses (including legal expenses) in relation to any breach of this obligation During the 12 months preceding the expiry of this Agreement or where notice to terminate this Agreement for whatever reason has been given, the Service Provider shall allow the Service Purchaser or such other persons as may be authorised by the Service Purchaser to communicate with and meet the employees who are likely to transfer in the event of a TUPE transfer and their trade union or employee representatives as the Service Purchaser may reasonably request In the event that the Service Provider enters into any sub-contract in connection with this Agreement, it shall impose obligations on its Sub-Contractor in the same terms as those imposed on it pursuant to this clause 33 and shall procure that the Sub-Contractor complies with such terms. The Service Provider shall indemnify the Service Purchaser and keep the Service Purchaser indemnified in full from and against all direct, indirect or consequential liability, loss, damages, injury, claims, costs and expenses (including legal expenses) awarded against or incurred or paid by the Service Purchaser as a result of or in connection with any failure on the part of the Sub-Contractor to comply with such terms On the occasion of each Relevant Transfer the Service Provider shall and shall procure that any new contractor of the relevant service shall comply with all of its obligations under the Regulations in respect of the Relevant Employees. 34. Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) Pensions 34.1 The pension arrangements for Transferring Employees shall be as set out in this clause On or before the Commencement Date, the Service Provider shall either: enter into and comply with the conditions of the Admission Agreement (Schedule R of this Agreement) and a Bond/Indemnity with the Service Purchaser so as to enable the Transferring Employees to continue in or to participate in membership of the Local Government Pension Scheme; or arrange for the establishment of a Pension Scheme and offer the Transferring Employees membership of the Pension Scheme on and from the Commencement Date, in which case the provisions of clauses 34.4 to 34.8 (inclusive) shall apply In the event that the Service Provider enters into the Admission Agreement in accordance with clause but ceases to participate in the Local Government Pension Scheme (for whatever reason) before the expiry of the Agreement, the Service Provider shall set up an alternative pension scheme for the Transferring Employees in accordance with clause and the provisions of clauses 34.4 to 34.8 (inclusive) shall apply, but with reference to the Commencement Date replaced by references to the date of the cessation of participation in the Local Government Pension Scheme. 20